{"title":"Constructed Constraint and the Constitutional Text","authors":"C. Bradley, Neil S. Siegel","doi":"10.2139/SSRN.2392101","DOIUrl":null,"url":null,"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 “constructed” upon by various materials. This Article takes a different approach. Instead of considering how various materials can supplement, implement, or interact with the constitutional text, the Article focuses on how the text itself is often partially constructed in American constitutional practice. Although interpreters typically regard clear text as controlling, this Article contends that whether the text is perceived to be clear is often affected by various “modalities” of constitutional interpretation that are normally thought to come into play only after the text is found to be ambiguous — the purpose of a constitutional provision, structural inferences, understandings of the national ethos, consequentialist considerations, customary practice, and precedent. The constraining effect of clear text, in other words, is partially constructed by considerations that are commonly regarded as extra-textual. This phenomenon of constructed constraint unsettles certain distinctions drawn by modern theorists: between interpretation and construction; between the written and the unwritten constitutions; and between the Constitution and the “Constitution outside the Constitution.” While primarily descriptive, the Article also suggests that constructed constraint may produce benefits for the constitutional system by helping interpreters to negotiate tensions within democratic constitutionalism.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"64 1","pages":"1213-1294"},"PeriodicalIF":1.8000,"publicationDate":"2014-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2392101","citationCount":"6","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Duke Law Journal","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.2139/SSRN.2392101","RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"LAW","Score":null,"Total":0}
引用次数: 6
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 “constructed” upon by various materials. This Article takes a different approach. Instead of considering how various materials can supplement, implement, or interact with the constitutional text, the Article focuses on how the text itself is often partially constructed in American constitutional practice. Although interpreters typically regard clear text as controlling, this Article contends that whether the text is perceived to be clear is often affected by various “modalities” of constitutional interpretation that are normally thought to come into play only after the text is found to be ambiguous — the purpose of a constitutional provision, structural inferences, understandings of the national ethos, consequentialist considerations, customary practice, and precedent. The constraining effect of clear text, in other words, is partially constructed by considerations that are commonly regarded as extra-textual. This phenomenon of constructed constraint unsettles certain distinctions drawn by modern theorists: between interpretation and construction; between the written and the unwritten constitutions; and between the Constitution and the “Constitution outside the Constitution.” While primarily descriptive, the Article also suggests that constructed constraint may produce benefits for the constitutional system by helping interpreters to negotiate tensions within democratic constitutionalism.
期刊介绍:
The first issue of what was to become the Duke Law Journal was published in March 1951 as the Duke Bar Journal. Created to provide a medium for student expression, the Duke Bar Journal consisted entirely of student-written and student-edited work until 1953, when it began publishing faculty contributions. To reflect the inclusion of faculty scholarship, the Duke Bar Journal became the Duke Law Journal in 1957. In 1969, the Journal published its inaugural Administrative Law Symposium issue, a tradition that continues today. Volume 1 of the Duke Bar Journal spanned two issues and 259 pages. In 1959, the Journal grew to four issues and 649 pages, growing again in 1970 to six issues and 1263 pages. Today, the Duke Law Journal publishes eight issues per volume. Our staff is committed to the purpose set forth in our constitution: to publish legal writing of superior quality. We seek to publish a collection of outstanding scholarship from established legal writers, up-and-coming authors, and our own student editors.