Contemporary Perspectives on Constitutional Interpretation

Contemporary Perspectives on Constitutional Interpretation

Contemporary Perspectives on Constitutional Interpretation

Contemporary Perspectives on Constitutional Interpretation

Synopsis

Current controversies over abortion, affirmative action, school prayer, hate speech, and other issues have sparked considerable public debate about how the U. S. Constitution should be interpreted. Such controversies, along with the changing composition of an often deeply divided Supreme Court, have led to a resurgence of interest in theories of constitutional interpretation. This anthology, edited by Susan J. Brison and Walter Sinnott-Armstrong, presents some of the most exciting and influential contemporary work in this area. Written by ten of the country's most prominent legal scholars, the selections represent a wide variety of interpretive approaches, reflecting different political orientations from the far right to the far left. These theorists have drawn on a variety of other disciplines, including literature, economics, history, philosophy, and politics, and have in turn influenced these fields. The selections were chosen for their accessibility, originality, variety, and importance. Together they provide an excellent introduction to constitutional interpretation as well as a valuable collection for experienced scholars in the field.

Excerpt

What is constitutional interpretation? It might seem that this question must have a single answer if different theories of constitutional interpretation are to be about a single topic. However, in this volume, Frederick Schauer argues that what counts as an interpretation--and even what counts as the Constitution--will vary from theory to theory, depending on which kinds of reasons are recognized by the theory and which cases are hard cases according to the theory.

Schauer argues that there is also no single answer to the question, How should the Constitution be interpreted? Instead of advocating a single method of constitutional interpretation, Schauer suggests that different methods are appropriate on different occasions. the Constitution is interpreted not only by Supreme Court justices but also by lower court judges, by attorneys-general who decide which cases to prosecute, by police officers who decide when to give Miranda warnings, and by town clerks who decide whether to issue parade permits. These different interpreters face different pressures, possess different information, undergo different training, and have different political views. Consequently, Schauer argues, the best results will be reached more often if different methods are used at different times by different people. As he puts it, constitutional theory should be "interpreter-relative."

Schauer is not saying that interpreters should use whichever method seems right to them at the time. Instead, there is supposed to be an underlying rationale that determines which methods are appropriate in which contexts. This general criterion of adequacy needs to be spelled . . .

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