Responding to a Shift in the Tectonic Plates of Constitutional Interpretation: the Framers’ Benchmark for a Minimum Acceptable Theory

Abstract

This paper examines constitutional interpretation in light of shifting interpretative paradigms. Amid challenges to established theories like Originalism and Living Constitutionalism, the paper proposes a Framers' Benchmark for a Minimum Acceptable Theory (MAT) derived from comparing the Constitution with the Articles of Confederation. The MAT evaluates interpretative theories against three core constitutional principles: maintenance of workable government, avoidance of unchecked power, and recognition of the people as sovereigns. Using illustrative cases like INS v. Chadha, Gundy v. United States, and New York v. United States, the paper demonstrates how theories should be tested against these fundamental principles rather than subjective ideological preferences. The paper critiques Cass Sunstein's "fixed points" assessment as inadequate and argues that proper constitutional interpretation should consult fixed descriptive components while avoiding normative ends that undermine popular sovereignty. Through this analysis, the paper provides a framework for evaluating both established and emerging theories of constitutional interpretation.

Keywords: constitutional law, constitutional theory, constitutional interpretation, democratic design, theories of interpretation