Scholarly Articles and Other Contributions
 

Document Type

Article

Publication Date

1990

Abstract

This Article provides a counterbalance to current trends in the constitutional interpretation debate. First, the Article is addressed not only to academic experts but also to practicing lawyers, law students, government officials, and academics that are interested but not expert in the process of constitutional interpretation. Second, the Article emphasizes the common ground or agreement about interpretation as much as the disagreements, and offers a synthesis of the interpretive process that charts the common ground and models the best of current understanding. Third, the Article relates theory to practice by exploring the ramifications of this synthesis for courts, other interpreters, and those making or critiquing constitutional arguments in practice. Fourth, the Article suggests specific steps that we might take, building on the synthesis, to further our understanding of and improve the functioning of the process of constitutional interpretation.

To accomplish these goals, the Article proceeds largely by constructing a descriptive theory that provides an account of the interpretive process as it actually exists in practice and an account of the disagreements that have developed concerning this process. In addition, the Article includes some normative theory prescribing how the interpretive process should function in areas where there is considerable doubt and disagreement about its workings, or where the apparent practice, in the author's view, is misguided or underdeveloped. In these areas, the Article seeks to select, from among the plausible descriptive theories, the one that guides future conduct in the most normatively attractive way.

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