‘Everything You Need to Know About Constitutional Law’ (Part II – Completing the Ultra-Short Course)

The second installment of my light mini-review (and deconstruction) of “Constitutional Law” appears today at Public Discourse.  The first installment was published yesterday. 

Here’s the ultra-short version of this already-short course on Constitutional Law. 

First off:  There are several methods of interpreting the Constitution that are employed from time to time by the Supreme Court.  Some of them are legitimate, some not so much.  The cast, in descending order of legitimacy (from entirely proper to utterly illegitimate):

(1) Text (understood according to the original linguistic meaning, in context, of the document’s words).

(2) Structure (a sophisticated version of textualism that takes into account the whole of the text and the structures, relationships of institutions, and internal logic of the document; it is obviously more subject to manipulation than simple provision-specific textual exegesis).

(3) Intention or History or Purpose (a legitimate source of information for resolving textual ambiguity, uncertainty, or indeterminacy – but subjective “intention” should never trump sufficiently determinate original, objective textual meaning).  

(4) Precedent (a dubious source of authority, yet strangely beloved by lawyers and judges – precedent should never trump evidence of textual meaning, structural logic, or historical intention).

(5) Policy (an illegitimate “interpretive” method, akin to how my high school chemistry lab partner and I used to do experiments – by first drawing the desired curve, then plotting the data, and then, maybe, if we felt like it, gathering actual data).

The key questions of Constitutional Law are which of these sources are legitimate, and which have priority over the others.  The right order is the order in which I have listed them.  The wrong order is worst to first – which is the interpretive methodology often employed by the Supreme Court in its most high-profile and least-defensible opinions.   

Then, all you need to understand Constitutional Law are two more things. 

First, you need a theory of who has authority to interpret the Constitution.  The correct answer is “everybody” – no single body or government actor has ultimate interpretive authority, to which everybody else must bow.  (A conclusion supported by the text, structural logic, and historical evidence of original meaning, appropriately enough.) 

Second, you need a theory about what to do in cases of uncertainty, textual ambiguity, or indeterminacy. The correct answer – supported by the text, structure and logic of the Constitution and by the rationale for judicial constitutional review in the first place – is that unless democratic political choices of representative institutions can be shown to be contrary to a rule of law supplied by the text (with sufficient clarity), courts must defer to those political choices. 

Or, put more simply: Except where the Constitution gives an answer, the people govern themselves. 

That’s pretty much it.  I don’t know why it took two full essays to explain the above, but hopefully I did with a bit more finesse in the pair of Public Discourse articles linked above.

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An aside:  My thanks to friends and readers of Bench Memos for their personal, kind words about my new book, co-authored with Luke Paulsen (my son) – The Constitution: An Introduction.  The “launch” has gone well so far. 

And my gratitude to Ed Whelan for his generous review in the print version of National Review – also posted today at NRO – and to other kind reviewers, including Justice Samuel Alito, whose positive but scrupulously judicious review for the Federalist Society was published online a few weeks ago.