Document Type


Publication Date



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.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.