Constructive interpretation of a body of law identifies a just principle that explains as much as possible of the law as it is and has been. This principle in turn provides a criterion to guide reform toward a law that is defensible as both coherent and just. By maintaining continuity with existing law, constructive interpretation respects the processes by which law has been developed and enacted, and the investment that legal actors have made in developing routines of compliance. Constructive interpretation therefore offers a particularly democratic method for critique and reform of law made by elected legislatures and enforced primarily through the voluntary compliance of law-abiding citizens. Accordingly, it is an appropriate method for critique and reform of American criminal law.
The felony murder doctrine, though widely criticized by legal theorists, persists as law in most American jurisdictions. It is therefore important that criminal law theory acknowledge and articulate its normative appeal. To dismiss felony murder liability as inherently irrational—as most criminal law scholars have done—insults the democratic public that supports it and frees legislators, judges, and prosecutors to pander by enacting and applying it without reason or restraint. If felony murder liability is going to be part of our law, we must be prepared to justify it, and to confine it to its justifying principles.
To that end, we have here developed a constructive interpretation of the felony murder doctrine in American law, justifying felony murder liability as sometimes deserved on the basis of an expressive theory of culpability. This theory explains punishment as serving to motivate popular support for the rule of law by vindicating the equal status of all legal subjects. Punishment rebukes those who demean others by harming them for unworthy ends. Such punishment is properly assessed on the basis of the dignitary injury done to victims by the offense. This dignitary injury is a function of both the harm done and the culpability with which it is done. That culpability, in turn, has two dimensions: a cognitive dimension, concerned with the harm expected, and a