Richard Primus (University of Michigan Law School) has posted Is the Oldest Constitutional Question Substantive or Methodological? (Texas A&M Law Review) (35 pages) on SSRN. Here is the abstract:
My recent book The Oldest Constitutional Question: Enumeration and Federal Power is about the extent of the power of Congress. But it’s also about how constitutional interpretation actually works. Not how it ought to work, but how it works in fact.
Constitutional interpretation—perhaps like law in general—is an argumentative practice. We argue both about particular propositions of law and about how constitutional interpretation should work in general. That second argument is as old as the Constitution, and it will never be settled. Hence the double meaning of the book’s title: perhaps the oldest constitutional question is not the extent of federal power but the question of how the Constitution should be interpreted. And as the history of the system suggests, it is not necessary to settle the second question in order to settle the first one.
The book is written to illustrate how a complex constitutional argument might proceed if it were built with attention to a theory of what actually persuades, rather than with attention to a normative theory of what ought to persuade. Critical components of that illustration include the treatment of historical sources and the interrelationships between, and sequencing of, arguments from history, structure, and text—including the idea that despite the common refrain that constitutional interpretation begins with the text, the textual aspect of constitutional reasoning is often the last step, rather than the first, of an act of constitutional interpretation.
At Legal Theory Blog, Larry Solum says “Wow! What a paper. Deep, fascinating, conceptually rich, and thought provoking. My highest recommendation. Download it while it’s hot!” — but also has critical comments.
Posted at 6:05 AM