Formalism in constitutional theory.

• Jurisdiction: United States
• Author: Sunstein, Cass R.
• Date: 01 January 2017

In law, what does it mean to "interpret" a text, including the Constitution? There are some things that cannot be counted as interpretation. If a judge engages in freestanding moral theory and ignores the text, she is not interpreting it. If she reads it backwards, and tries to make sense out of it that way, she is probably making some kind of joke. At the same time, there is nothing that interpretation just is. Some people think that it is best to follow intended meaning. Others are committed to the original public meaning. Others favor some kind of moral reading--an idea that can itself take multiple forms, and that on certain assumptions might even entail use of intended meaning or original public meaning. The choice among plausible accounts of interpretation requires people to resort to their own arguments, external to the text, typically in the form of claims about what will make a constitutional order better rather than worse. (1)

In response to an essay of mine on this topic, Richard Ekins has produced nearly ten thousand words on interpretation, largely in defense of his claim that interpretation just is an effort to uncover intended meaning. (2) Ekins has obviously thought long and hard about this topic, and his essay bristles with both intelligence...