The Authority of the Constitution and Its Meaning Mike Rappaport
A while back there was a discussion between various bloggers, including Larry Solum, Jack Balkin, Brian Leiter, and myself, concerning the relationship between the authority of the Constitution and its method of interpretation. I had written this post but neglected to post it, so here it is:
A common move among nonoriginalist constitutional scholars is to argue that the Constitution is binding (or to assume it) and then to argue the real question is how we should interpret it. For a recent example, see this post over at Balkinization.
This is such a common move that one might even term it “the standard nonoriginalist move.” It is, however, entirely illegitimate.
Normative justifications for following the Constitution tend to fall into one of two categories. Either they are substantive (the Constitution does a good job) or procedural (the Constitution is binding because of the way it was enacted). In both cases, the justification will not merely turn on the Constitution, but also on how it is interpreted. First, consider the substantive justification. How the Constitution is interpreted will affect whether it has a good or bad substantive content. If one views the Constitution as authoritative because of its desirable content, one cannot know whether it is authoritative until one knows how it will be interpreted.
Similarly, procedural justifications are affected by how the Constitution will be interpreted. If one believes, for example, that the Constitution is binding because it was adopted by representatives of the people under supermajority rules (as John McGinnis and I have argued), one would also be concerned with the method of interpreting the Constitution. One would presumably pick a method that connected the Constitution with those who adopted it. For example, one might select the interpretive rules that the people who wrote and ratified the Constitution would have employed.
The bottom line here is that one cannot make the standard nonoriginalist move. The authority and interpretation of the Constitution are intimately connected.
Update: I changed some of the terms in this post to make it more accurate.