Constructing a New American Constitution
Whittington, Keith E., Constitutional Commentary
Problems of constitutional interpretation have occupied a prominent part of the scholarly agenda for quite some time, and rightly so. Theories of constitutional interpretation help guide and legitimate the work of the judiciary. They grapple directly with what the courts say they do and with many of the issues that lawyers routinely face. Understanding what should be interpreted, how it should be interpreted, and who has the authority to interpret are all important and basic to the constitutional enterprise. (1)
Interpretation is not all that we do with constitutions, however. Interpretive practice is supplemented through a process of constitutional construction. Constitutional scholarship has given increasing attention to the idea of construction as a feature of the constitutional enterprise that is distinct from interpretation and that is worthy of analysis in its own right.
In this Article, I reintroduce the concept, clarify a couple of features of the idea of constitutional constructions as I understand it, and suggest some possible benefits of constructions as a conceptual tool. The Article proceeds first by discussing what constitutional construction is and how it relates to constitutional interpretation. Part II considers the extent to which courts engage in constitutional constructions. Part III considers whether it is possible to avoid constitutional constructions. The Article concludes by suggesting ways in which the concept can be useful to various scholarly literatures.
I. WHAT IS A CONSTITUTIONAL CONSTRUCTION?
Constitutional construction is one mechanism by which constitutional meaning is elaborated. It works alongside constitutional interpretation to elaborate the existing constitutional order. The process of constitutional construction is concerned with fleshing out constitutional principles, practices and rules that are not visible on the face of the constitutional text and that are not readily implicit in the terms of the constitution.
We can imagine a continuum of actions that political actors can take under a Constitution, ranging from policymaking to revolution. At one end of the continuum, political actors can take constitutional forms as a given and make policy decisions under it, filling government offices and exercising government power in (constitutionally) noncontroversial ways. Policymaking seeks to exercise constitutional authority, and its implications for elaborating or altering constitutional meaning are only implicit. At the other end of the spectrum, political actors can engage in revolution and replace the existing constitutional order or document wholesale in favor of a new one. The Articles of Confederation can be displaced in favor of the U.S. Constitution. Less extreme than revolution is creation, which adds new text to a preexisting Constitution. Creation embraces a revisionary authority, but the revisions are partial rather than total. They amend and reform the Constitution, rather than throw it over. (2)
Interpretation and construction are both concerned with elaborating, developing and effectuating the preexisting Constitution. Unlike the mere policymaker, the interpreter or constructor engages the Constitution directly and attempts to address and resolve contested claims about constitutional meaning. But political actors engaged in these tasks do not claim the authority to revise, amend or alter the Constitution. They claim only the lesser authority of attempting to understand and realize the Constitution as they found it.
Construction lies closer along the continuum to the process of creation, however. Construction picks up where interpretation leaves off. Interpretation attempts to divine the meaning of the text. (3) There will be occasions, however, when the Constitution as written cannot in good faith be said to provide a determinate answer to a given question. This is the realm of construction. The process of interpretation may be able to constrain the available readings of the text and limit the permissible set of political options, but the interpreter may not be able to say that the text demands a specific result. …