Over at Divided Argument, John McGinnis and I have a guest post that criticizes Cass Sunstein’s argument that the Constitution does not specify how it is to be interpreted and therefore one should use normative considerations to select an interpretive method.
First, we argue that:
Sunstein’s contention – that the Constitution’s failure to specify how it is to be interpreted means that various interpretive approaches are available to determine its meaning – is mistaken. To start, it is not surprising that the Constitution does not explicitly mention how it is to be interpreted. It is exceedingly rare for an utterance—written or oral—to specify its own interpretive method. But that rarity does not permit interpreters to adopt whatever approach they prefer. The correct method need not be expressly specified, because language does not work that way.
Instead, meaning is determined by language conventions that people follow at the time of an utterance. Those conventions include not merely word meanings and grammatical rules but also interpretive rules. These interpretive rules are often tied to particular situations or documents. Thus, one set of interpretive rules might exist for informal oral conversations and a different set for formal documents. For legal documents, one set of rules might exist for contracts, a different set for statutes, and a related set for constitutions. The key to interpretation – to determining the meaning of these utterances – is to apply the correct interpretive rules to the utterance as determined by existing language conventions. The application of those rules does not require that they be expressly invoked. Indeed, it is rare for that to occur.
The correct interpretive rules for the Constitution are the ones deemed applicable to the document at the time of its enactment. That other rules are appropriate in other circumstances or for other documents is beside the point.
Second, we argue:
Unfortunately, the existence of [a multiplicity of interpretive rules in different legal system and situations] has led Sunstein and other commentators into a basic error. Believing that alternative interpretive approaches are available, they argue that interpreters have a choice in selecting which interpretive approach to adopt. As Sunstein writes, the “meaning of the Constitution must be made rather than found.” And they contend that interpreters should make that choice on normative grounds – on what would make the Constitution most desirable. But once one realizes that interpreters do not have a choice in determining the meaning of the Constitution, the relevance of these normative considerations for interpretation evaporates.
We do acknowledge that one can ask serious normative questions about interpretive approaches. “But these normative [questions] do not affect the Constitution’s meaning. That meaning hinges on the interpretive approach at the time, not on the contemporary approval or disapproval of that approach or the content it yields.” Thus, “the meaning of the Constitution is one thing. The desirability of that meaning is another.”
Read the whole thing at the excellent Divided Argument substack.
Posted at 8:00 AM