Thayerian Deference and Constitutional Interpretation

Abstract

In this essay, I briefly introduce James Bradley Thayer’s theory of judicial deference and its place in historical debates over judicial review and constitutional interpretation. I then turn to how Thayer’s theory of deference fits into debates over how to interpret the Constitution. I warn against treating mere deference as an alternative to theories like originalism, pragmatism, and common law constitutionalism, as it is better viewed as a theory of adjudication or administration rather than as a theory of interpretation. By clarifying deference’s place in the discussion, one might avoid muddling or overclaiming discussions of interpretive theories. Additionally, addressing questions of adjudication and workability brings them the attention they deserve in a literature that tends to overemphasize theoretical coherence while overlooking whether it is workable.

Keywords: constitutional interpretation, constitutional law, deference, Thayer, interpretation, adjudication

JEL Classification: K10