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Friday, February 07, 2014

Constructed Constraint and the Constitutional Text

Neil Siegel

My Duke colleague Curt Bradley and I just posted a new constitutional theory paper on SSRN. The article focuses on the role of the constitutional text in American interpretive practice. We argue that "constructed constraint" offers the best descriptive account of the role of the text, and that this account is relevant to a number of modern theoretical debates. Here is the abstract:

In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be built upon, or "constructed," by various materials. This Article, by contrast, focuses on the role of the constitutional text itself. Under some accounts, the text plays a relatively minor role. On this view, interpreters may invoke the text rhetorically, but it does not constrain their interpretations. These critical accounts can be contrasted with strictly textualist theories, which maintain that constitutional interpretation derives its authority from being firmly grounded in the written Constitution. It follows, textualists contend, that the text must be followed--and often is followed--at least when it is clear. The importance of this disagreement is highlighted in several recent controversies, including the recurring debates over the extension of the debt ceiling and the recess appointments case pending before the Supreme Court.

This Article suggests that the best descriptive account of the role of the constitutional text in American interpretive practice is one of "constructed constraint." Although textualists are correct in suggesting that interpreters characteristically regard clear text as controlling, a variety of examples--including the first word of the First Amendment, state sovereign immunity, and President Lincoln's suspension of habeas corpus--illustrate that the perceived clarity of the text is partly constructed by the very practice that it constrains. The phenomenon of constructed constraint unsettles distinctions drawn by modern theorists: between interpretation and construction; between the written and unwritten constitutions; and between the Constitution and the "Constitution outside the Constitution." While its account is primarily descriptive, the Article also suggests that constructed constraint may produce benefits for the constitutional system by helping interpreters negotiate tensions within democratic constitutionalism.

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