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.