Interconstitutionalism.

• Author: Mazzone, Jason

ARTICLE CONTENTS INTRODUCTION 330 I. PRACTICE AND THEORY 333 A. Definition and Distinguishing Elements 333 B. Interpretation, Continuity, Change 336 C. Federal, State, Global 343 l. The U.S. Constitution 343 2. State Constitutions 346 3. Foreign Constitutions 349 II. FEATURES OF INTERCONSTITUTIONAL INTERPRETATION 353 A. Constitutional Continuity 354 1. Original, Original Public Meaning 354 2. Imported Original Meaning 362 3. Similarities and Differences 365 a. Inclusions and Omissions 366 b. Single Word Choices 370 c. Punctuation 372 4. Consistency and Intratextualism 374 5. The Problem of Disparate Provisions 376 6. Summary 378 B. Stare Maiorum Decisis 378 1. Ratification of Judicial Rulings 382 2. Errors Ratified 385 3. Overcoming the Rule 389 4. Summary 392 C. Power and Practice 392 1. Ratification of Legislative Power 393 2. Ratification of Judicial Power 396 3. Statutory Changes 396 4. Summary 398 INTRODUCTION

Antonin Scalia famously called the Constitution of the United States "dead, dead, dead." (1) Scalia's characterization, shorthand for his originalist approach to constitutional interpretation, (2) represents one side of a debate. (3) On the other side are accounts of the U.S. Constitution as a living document whose meaning changes with the times, particularly in the hands of judges. (4) Whatever one's views (5) about whether the U.S. Constitution, or the constitutions of the states or of other nations, should be treated as deceased or as living, there would seem to be little question that prior constitutions--those once, but no longer, in force-are indeed dead.

Not so. As we demonstrate, a new constitution generally does not make a clean break from its predecessor governing charter. Quite the contrary, former constitutions routinely affect the interpretation and application of their successors.

In this Article, we take up a prevalent yet understudied practice of constitutional interpretation that we call interconstitutionalism. In a nutshell, interconstitutionalism is the use of a polity's antecedent constitution(s) to generate meaning for that same polity's current constitution. Courts and other interpreters regularly engage in interconstitutionalism, keeping alive past constitutions. Interpretations of the U.S. Constitution regularly utilize the Articles of Confederation; state constitutional interpretation often involves scrutinizing predecessor state constitutions; and in foreign countries, too, past constitutions play a starring role in interpreting current governing charters.

This Article examines the multiple and often surprising dimensions of inter-constitutional practices, drawing on examples from federal and state courts as well as courts abroad. Interconstitutionalism is everywhere. The practice extends well beyond the judiciary. Political leaders, for example, often speak about the U.S. Constitution in interconstitutionalist terms. President Lincoln invoked the Articles of Confederation at his 1861 inauguration to argue that the Constitution is perpetual and secession is therefore illegal. (6) President Franklin Delano Roosevelt invoked the Articles in support of his reading of broad congressional power in his 1937 fireside chat about the Supreme Court's obstruction of New Deal programs. (7) More recently, Missouri Senator Roy Blunt invoked the Articles at President Biden's 2021 inauguration in praise of what he called "determined democracy" as the Constitution's signal political innovation. (8)

Recognizing interconstitutionalism explains how courts apply constitutional provisions, complicates prevailing accounts of constitutional interpretation, and elucidates the nature of constitutional governance. Accordingly, we have three broad goals in this Article. The first is descriptive and anthropological: we seek to identify interconstitutionalism as a distinct interpretive practice, set out its features, catalog its forms, and examine its prevalence. In pursuing this goal, we collect evidence of the practice from courts in the United States and abroad and examine cases across time. We aim to provide a broadly representative descriptive account. At the same time, however, we recognize that our description is far from exhaustive. For every case we reference, there are many others we could have included instead. So, while we drill deeply into the examples we offer, a broad study of our type necessarily overlooks some nuances.

Our second goal is to bring interconstitutionalism into conversation with other accounts of constitutional interpretation. We show the ways in which interconstitutionalism reorients other interpretive approaches. For example, interconstitutionalism highlights weaknesses in approaches centered on the original public meaning of constitutional provisions. (9) Originalists have set forth elaborate arguments for discerning public meaning at ratification. (10) But interconstitutionalism defuses the significance of ratification when a new constitution reuses provisions from an earlier constitution. For interconstitutionalist courts, the meaning of repeated provisions dates back to their first use.

The third goal is more normative: we seek to understand interconstitutionalism's relationship to democratic self-governance. A core commitment of modern constitutionalism is democratic self-rule. Originalism, living constitutionalism, and other interpretive theories share an ultimate commitment to self-rule, even as they offer different ways to secure it. But interconstitutionalist practices challenge the nature of constitutions as self-governing charters. Interconstitutionalism means that past constitutions survive. They inform the meaning of any new document that "we the people" might adopt. As a result, creating a wholly new constitution is a very tall order. Indeed, as this Article shows, the pull of interconstitutionalism is so strong that even the conscious efforts of constitution-makers to liberate themselves from a past constitution do not easily succeed. Contemporary debates about rule by dead hand do not capture the extent to which the past constrains the present, (11) but attention to interconstitutionalism can help to ensure that a constitution tracks the preferences of its adopters. With this in mind, we identify some tools for drafting new constitutions. We also suggest that constitutional amendment might often be a better vehicle for securing constitutional change than replacing the constitution with a new charter.

Our Article proceeds in three parts. Part I lays out interconstitutionalism's key elements, distinctiveness from other interpretive approaches, and contributions to theories of interpretation and accounts of constitutional change.

Part II dives deep into the interconstitutional practices of courts. We organize a large set of raw material according to a series of principles, methods, and justifications that emerge from interconstitutionalist courts. Organizing the material in this way provides a basis for assessing interconstitutionalism as a distinct interpretive practice. Specifically, Section II.A focuses on constitutional continuity, a principle by which courts give a provision of an existing constitution the meaning it had the first time it appeared in a predecessor constitution--even if semantic or intended meaning changed by the time the current constitution was written and ratified. In Section II.B, we examine how new constitutions are deemed to ratify judicial decisions issued under previous constitutions. Section II.C then examines a shared understanding of interconstitutionalist courts: a new constitution validates and entrenches governmental power as it has been exercised unless it repudiates that practice under the former constitution.

Finally, in Part III, we discuss some of the benefits and risks of interconstitutionalism. We end by considering some larger implications--and a few puzzles--that interconstitutionalism poses for existing accounts of constitutional governance.

1. PRACTICE AND THEORY

   This Part lays the groundwork for assessing interconstitutionalism. We first define interconstitutional interpretation, discuss its basic elements, and distinguish the practice from six other interpretive approaches. We then identify some contributions that interconstitutionalism makes to theories of interpretation and accounts of constitutional change. Finally, we extract from three categories of cases--interpretations of the U.S. Constitution, state constitutions, and foreign constitutions--features that are relevant to interconstitutionalist approaches.

   1. Definition and Distinguishing Elements

      By interconstitutionalism, we mean the interpretive practice of referring to a polity's antecedent constitution (or constitutions), textually or otherwise, to generate meaning for the same polity's current constitution. Three attributes of this formulation are worth highlighting.

      First, interconstitutionalism is an interpretive practice rather than a method of constitutional interpretation because it can be deployed as an element of different methodological approaches. The invocation of an abrogated constitution might involve comparing the text of that document to its new counterpart (textualism); a comparison of the constitutional structures built into the two documents (structuralism); generation of original public meaning, or an inquiry into the intentions of the framers of the new constitution in light of the perceived virtues and vices of the abrogated constitution (originalism); or a combination of the foregoing--and, perhaps, other--interpretive methods. Because interconstitutional interpretation can be a tool for different existing interpretive methods, (12) we treat it as a "practice" rather than an independent method of constitutional interpretation.

      Second, an essential attribute of interconstitutional interpretation is its intertemporal dimension. Interconstitutional interpretation is inevitably a retrospective endeavor: it looks back...