Forensic Constitutional Interpretation
Havel, Brian F., William and Mary Law Review
The gist of constitutional interpretation should be an amenability to competing and even complementary schools of hermeneutic endeavor.(1) This ideal collides with an intellectual seduction, nurtured within the legal academy, of monotheism--a belief in the possibility of one true theory of constitutional interpretation.(2) Scholarly argument notwithstanding, it is unlikely--and empirically unprecedented--that a judge would pivot the entire outcome of a constitutional dispute on, let us say, the presence or absence of a comma in the Exceptions and Regulations Clause of Article III (the Judiciary Article),(3) the repetition of the word "in" in the Vesting Clause of Article III,(4) or the sudden caesura in the litany of "alls" in the Cases and Controversies Clause of Article III.(5) It is also unquestionably hard to (re)build accurately a putative original intent of the Framers; the historical trails are manifestly incomplete,(6) dismayingly tenuous, and probably distorted by the relativism of modern exegeses.(7) Furthermore, practical American lawyers are usually edgy in the face of high formalism;(8) if the text becomes hostage to anarchic and unpredicted meanings, the holy grail of deconstructionist ideology, it may not yield any sensible explanations at all.(9)
These and other theories may prove separately inconclusive or overambitious, but each is merely a facet of an eclectic discourse that judges in the United States use to interpret the Constitution. Eclecticism, at the root of the common law, means a reasoned integration of many different sources.(10) This Article introduces a "construct" of constitutional interpretation,(11) which I dub forensic constitutional interpretation,(12) that repudiates monotheism and relies explicitly upon common law methodology. The construct has three deeply linked components. First, it seeks well-reasoned and persuasive opinions that fit beneath the eclectic methodological canopy of the common law.(13) Second, by embracing eclecticism it recognizes that interpretation should not beguile the interpreter into the fallacy of monotheism. Third, confident in its methodology, it avoids any pretense that judges are discovering, as opposed to constructing, constitutional meaning.(14) Whatever courts may do in other contexts, forensic interpretation expects that when judges interpret the Constitution they are well aware of the intended outcome of their exercise. By force of the first and second components of the construct, however, those outcomes will acquire coherence and endurance only through the rigor of the common law method and tolerance for polytheism in constitutional interpretation.
This Article has three Parts. Part I examines a select class of representative constitutional theories in order to reveal the conceptual inadequacies of interpretive monotheism. The theories comprise virtually the entire bandwidth of modern constitutional analysis, from rigidly formalistic to unabashedly outcome-driven. Then, Parts II and III explain the nature of forensic constitutional interpretation. The argument develops in three phases. Part II.A organizes forensic interpretation around interlocking acts of eclectic reasoning: the institutional methodology of the common law itself and (as a conceptual ramification of the common law method) a polytheistic integration of different interpretive theories. Part II.B makes an intimate connection between the outcome sensitivity of judges and the art of interpretation, and pairs this insight with the common law's instinct for forensic rationalization. Finally, Part III is an applied demonstration of forensic methodology. It uses two Supreme Court judgments delivered more than twenty years apart, in 1978 and 1999, both of which rebuffed federal encroachments into areas of retained state prerogative. These opinions manifest the Court's quiet but persistent allegiance, despite the tumult of theory, to the eclectic practices of forensic constitutional interpretation. …