Wanted: Dead or Alive

Wanted: Dead or Alive

Searching for the best method of constitutional interpretation

First of all, I have to say that this would make an AWESOME title for a law review or polisci journal article. I’m totally calling dibs on it right now.

Anyways, what the title means is that I am searching for the “best” method of constitutional interpretation. Two big schools of thought can be titled living and dead. Those are living constitution (see Straus) and some flavors of originalism that we can call “dead” (the meaning of the constitution was fixed at time
of the framing). But the play on words in the title is that we want a constitution and a comprehensive method of interpreting it, whether it is dead or alive. Either one is preferential to no constitution or no way to interpret it.

But, beyond making  plays on words, I need to describe what the “best” way to interpret the constitution means. Or, how will we know the best method of interpretation when we see it? Well, let’s look at an analogy:

Say we want to pick the best banana. We could say the best banana is the most yellow one, the tastiest one, the biggest one, the one from the best tree, the one that lasts the longest etc. All of those are ok criteria.  But people might disagree over which criterion is the most important.  Our ultimate criteria needs to get to the deepest root of what makes a banana a banana. So, we need to base that criteria which captures the essential nature of a banana. But, you can’t really interpret a banana, so let’s switch back to thinking about constitutions.

Well, we can’t evaluate a constitution on it’s yellowness or it’s size ( I guess we could) but we can think to what makes a constitution a constitution. Like a banana is not an orange, a constitution is not your run of the mill law. If we look to Hardin, Myerson, and Wiengast, we know one thing about constitutions under a game theory lens: they are the mechanism for solving huge coordination problems.

So, how does this sound for a good criteria for determining the “best” method of interpreting the constitution,

“that way in which the provisions of a constitution are construed to be the most coordination facilitating” ?

Or basically, the best way to interpret the constitution is the way that best serves the fundamental purpose of a constitution. It let’s a constitution be a constitution. I’ll say for now that I’ll adopt Hardin’s argument for “Why a Constitution”. So, if the main purpose of a constitution is coordination, a court should interpret a constitution in a way that prioritizes its coordinating functions.

Let me nuance this argument. I am not necessarily saying that when a dispute arrives, the court should always just try to find a focal point that allows people to coordinate, although that is an argument that can be made. If I said that, we run into a justice interest problem, where some concept of justice does not exist in the equation. 51% of us can make a really clear focal point  to kill the other 49% of the population.

Or, do we have a problem? Let’s assume that people would not agree to an egregiously unjust constitution. So there are some libertarian and minority rights provisions in that constitution. The interpretation method cannot ignore those, because they were part of the original coordinating act.

So, I don’t know where I went in this post. I may not have gotten very far, but I wanted to get these thoughts down. That’s how legal philosophy goes I guess. I want to find the method of constitutional interpretation that lets a constitution do what constitutions are supposed to do: solve big coordination problems.


Posted on July 14, 2011, in Uncategorized and tagged , , , , , . Bookmark the permalink. 4 Comments.

  1. It may be true that coordinating is “what a constitution does,” but that’s not the only thing. You illuminate this problem when you talk about the possibility that, if we privilege coordination alone, a constitution might come to coordinate one part of the population to take away rights of another part. The implication of this might be that we can’t consider coordination the primary goal and rights, etc., as being important but secondary. One might argue that the whole point of the U.S. Constitution, as seen by Madison at least, was to promote certain kinds of coordination (such as organizing national defense and paying for it with nationally imposed taxation) but to impose barriers to other kinds (such as organizing a corrupt, office-seeking “faction” at the national level).

    While maintaining the coordination function as a defining feature of a constitution, one might identify other values as more important. Suppose we consider security, prosperity, and liberty (in some combination) as ultimate values or goals. Achieving these requires many kinds of coordination, but they can be endangered by other kinds of coordination. The goal for a constitution is to promote the first kind while avoiding the second kind.

    The recent controversy over corporate money in campaigns bears directly on these questions. More money improves the ability of a like-minded group in society to effectively advocate their preferred policies. Does the constitutional aim of coordination, then, require that we support all types of financial support of campaigns? Does overall prosperity require it? These are the big questions underlying this issue.

  2. Thanks for the reply Professor. I think in our earlier discussion, we came up with at least two good purposes of a constitution:

    (1) the idea of a constitution creating a framework for government and solving collective action problems

    (2) the constraint idea where framers outline the scope of the government (positive powers) and its limits (negative/restraints)

    Both seem to be very important. It often seems that “tough” Supreme Court cases deal with conflicting values or vague clauses. When one way of deciding would benefit the integrity of the constitution, but another way might be said to be more socially beneficial, which way ought it go? This also seems to go back to a ever present problem of trying to decide when “sometimes it it better to have it decided than to have it decided right”.

  3. constitutionalism

    Your question is misframed for interpreting the Constitution. It is, however, a question that might lead to amending the Constitution. Remember, the Constitution is a commitment to obey a certain set of commands, as meant by the lawgivers at the time of ratification, and it is the meaning of the ratifiers that matters.

    Our problem is that while the document itself is evidence of the lawgivers’ meaning, it is not the only evidence, and we have to be prepared to be history detectives to find the mos plausible theory of mind of the lawgivers. Since they are not available to interrogate, we are left with using the evidence of some of their writings to predict what they will say in other of their writings, while making allowances for evolution in their thinking and understanding. We assemble a set of alternative meanings x(1…n) and ask which are consistent with statements y(1…m) made near or before the Founding Event, and with statements z(1…p) made later with the advantage of hindsight.

    For more on this see http://constitution.org

  1. Pingback: The Proof is in the…Proof: Law in Numbers? « The Law Rules Blog

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: