Constructed Constraint and the Constitutional Text

IF 1.8 2区 社会学 Q1 LAW
C. Bradley, Neil S. Siegel
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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.
建构约束与宪法文本
近年来,宪法理论家关注美国宪政的不成文方面,并相关地关注宪法文本可以通过各种材料“构建”的方式。本文采用了一种不同的方法。该条没有考虑各种材料如何补充、实施或与宪法文本相互作用,而是关注在美国宪法实践中,文本本身往往是如何部分构建的。尽管解释者通常将明确的文本视为控制因素,但本文认为,文本是否被认为是明确的,往往受到宪法解释的各种“模式”的影响,这些“模式”通常被认为只有在文本被发现含糊不清之后才会发挥作用——宪法条款的目的、结构推论、对国家精神的理解、结果主义考虑、习惯做法和先例。换句话说,明确文本的约束效果部分是由通常被视为文本外的考虑因素构建的。这种被建构的约束现象动摇了现代理论家所作的某些区分:解释与建构;在成文宪法和不成文宪法之间;以及宪法和“宪法之外的宪法”之间的关系。虽然这篇文章主要是描述性的,但它也表明,通过帮助解释者协调民主宪政内部的紧张关系,构建约束可能会对宪法制度产生好处。
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来源期刊
CiteScore
1.90
自引率
0.00%
发文量
0
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.
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