Academic journal article The William and Mary Bill of Rights Journal

Semantic Vagueness and Extrajudicial Constitutional Decisionmaking

Academic journal article The William and Mary Bill of Rights Journal

Semantic Vagueness and Extrajudicial Constitutional Decisionmaking

Article excerpt

INTRODUCTION.1301

I. Legislative Decisionmaking and Constitutional Text.1304

II. SEMANTIC VAGUENESS AND PRECISIFICATION.1308

A. Semantic Vagueness Defined.1308

B. Precisification of Legal Texts.1310

C. Divergent Precisifications and the Sorites Paradox.1312

III. PRECISIFICATION AND CONSTITUTIONAL DIVERGENCE.1313

IV. Precisification and the Interpretation/Construction Debates. .. 1319

Conclusion.1324

INTRODUCTION

The Constitution is replete with vague textual provisions that courts and legislatures, respectively, implement in divergent ways. Legislation to prevent "unreasonable searches and seizures,"1 for example, often departs significantly from Fourth Amendment doctrine.2 Statutes that enforce "equal protection of the laws" likewise bear little resemblance to the judicial doctrines governing that right.3 There is a rich literature examining the roles of courts and legislatures in implementing the Constitution's textually vague expressions.4 Two features of this literature, however, becloud many scholarly analyses of extrajudicial constitutionalism.

First, scholars often discount the degree to which extrajudicial decisionmaking is linked to the Constitution's text. As scholars have recognized, legislatures and courts often diverge significantly in how they implement vague constitutional provisions. For example, the Family and Medical Leave Act (FMLA) implements the Fourteenth Amendment's Equal Protection Clause, but looks nothing like previous judicial understandings of what that clause requires.5 These divergences lead many scholars of extrajudicial constitutionalism to treat the application of the Constitution's text as the province of judges, and to assume that legislative enactments are unanchored from the text. Many scholars assume that legislatures shape the Constitution's meaning only indirectly. Through statutes, legislatures can articulate norms and values that, in turn, shape our collective sense of what the Constitution means.6 Little attention has been given, however, to the ways in which Congress more directly seeks to implement the Constitution's text.

Second, the extrajudicial constitutionalism literature is littered with terminological debris. Specifically, volumes of scholarship have been devoted to whether certain types of judicial and legislative decisions should be characterized as "interpretations"-as opposed to "understandings" or "constructions"-of the Constitution.7 At the core of this debate is a genuine disagreement over the appropriate methods of elaborating the Constitution's meaning. However, the debate comes at a cost: the lack of a coherent vocabulary for scholars of extrajudicial constitutionalism who are venturing to explore questions other than the legitimacy of the various interpretive methodologies that are on offer.

This Article uses recent work in philosophy of language to address these two deficiencies in the extrajudicial constitutionalism literature. Drawing upon scholarship on semantic vagueness, I argue that many constitutional decisions-both legislative and judicial-can be understood as efforts to "precisify" vague constitutional texts. This account of constitutional decisionmaking has at least two analytical benefits. First, it shows that if courts and legislatures are both authorized to implement a constitutionally vague text, their strategies for doing so will necessarily diverge. A philosophically informed account of semantic vagueness thus calls into question the assumption that legislatures do not play a direct role in implementing vague constitutional provisions.

Third, this framework allows one to sidestep the seemingly intractable definitional debate over which types of decisionmaking qualify as constitutional "interpretation." Simply put, both "interpretation" and "construction" of the Constitution-in the many ways those terms are defined-can be treated as ways of precisifying the document's text. …

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