Academic

Samaha on the Dead Hand & Constitutional Interpretation

By Lawrence Solum

Adam Samaha (University of Chicago - Law School) has posted Dead Hand Arguments and Constitutional Interpretation (Columbia Law Review, Vol. 108) on SSRN. Here is the abstract:

This Article attempts to reset the relationship between theories of constitutional authority and methods of constitutional interpretation. Several scholars assert that our reasons for respecting the United States Constitution as law - despite its imperfection and dead authors - strongly influence the proper method of interpretation for that text. The "why" of authority supposedly drives the "how" of interpretation. But this relationship can be better understood. To the extent an authority theory can be distinguished from interpretive method, it is true that the former will identify what counts as law to be interpreted. Beyond that, the asserted relationship fades. First, some authority theories actually depend on a given interpretive method rather than the reverse, and an overarching normative framework can independently suggest interpretive choices. Second, and oddly, the correlation between a constitutional authority theory's persuasiveness and its logical implications for interpretation seems negative. Perhaps the more persuasive, the less influential. This is so even putting aside institutional considerations, which already have been used to soften the influence of high theory on interpretation. Yet authority theories and interpretation may be connected in a different way. The link involves multiple sources of law, instead of the interpretive method for one text. An authority theory can gauge the relative strength of competing sources of law bearing on the same decision, helping to resolve conflicts among them. Even the Constitution is subject to an evaluation of its strength.

And a bit more from the text:

Is there any sense in which content-dependent authority theories influence the proper method of interpretation? The strongest possibility seems to involve moral readings of the Constitution.177 Consider a moral theorist?egalitarian, libertarian,utilitarian, cosmopolitan, or whatever?who adopts two commitments: (1) respect a norm as law only if its content adequately comports with the relevant moral theory and (2) interpret legal texts to adequately comport with that moral theory. Thus respect for the Constitution would be conditioned on its moral goodness, and interpretation would be consciously employed to satisfy this same normative criterion. Randy Barnett and Joseph Raz take positions close to this combination.178 Yet even here authority is not driving interpretation in a sequential way. The stumbling block is the role of overarching normative frameworks. If such a commitment is dictating both an authority theory and an interpretive method, it is not productive to assert that the theory is influencing interpretation?or, more boldly, that one must first identify an authority theory before turning to interpretive method. The sequencing portrayed by the asserted authority/interpretation relationship is absent. Indeed, the logically prior issue is the clean moral one: the normative standard for desirable conduct.

Where else would a commitment to preserve the Constitution?s moralacceptability come from? Not from an authority theory. An authority theory is an if/thenproposition that tests for the existence or respect-worthiness of law.179 Alone it cannot indicate that interpreters should rig their readings to preserve the Constitution?s authority. Authority theories lack the equipment to impose that directive. Most likely, the combination of a content-dependent authority theory with a moral reading includes yet other considerations: the practical necessity of treating the text as enforceable law, the risks of instability, and the desire for good outcomes.

But now we are essentially following a general directive to do good things, or a slightly more specific directive to produce good law. Authority theories are unnecessary for and incapable of such advice. They are designed for a narrower function of defining and assessing law?even if, like much other conduct, their construction is animated by a prior and overarching normative commitment.

One of the best treatments of this important topic.  Anyone interested high constitutional theory will find this worthwhile.  Highy recommended.

Full post as published by Legal Theory Blog on January 14, 2008 (boomark / email).