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Monday, December 05, 2011

Constitutional Values and Interpretive Theory Choice

I am in the middle of a paper that explores, in part, what I call “constitutional values”.  By this I mean something like “what we value about the Constitution and its role in our democracy”.  For example, we may value the Constitution because it acts as a constraint on state actors and institutions.  We might also value the Constitution’s “writteness” (to use a term in vogue) because it provides an important kind of transparency.  Or we might value the Constitution as a source of transcendent, aspirational principles that serve social justice of a particular kind.  Or we might value the Constitution’s flexibility—broad strokes meant to stand the test of time, etc.  These are just a few examples.  I’m looking for some help identifying others, and, more importantly, figuring out how or where to look for evidence that a particular value is widely held.

My working hypothesis, for a number of reasons, is that the constitutional canon—the texts that have hardened into more or less fundamental parts of our constitutional imaginations—is a good place to look to start identifying constitutional values.  The thought being that these texts have become canonical because they speak directly to our most deeply held ideas about what the Constitution means to, or how it should function in, our system.  Think of The Federalist and written transparency, or the Declaration of Independence and aspirations of social justice, or McCulloch and flexibility.

The (Kuhnian) thesis of my paper is that we tend to make constitutional interpretive theory choices (i.e., originalism vs. pragmatism; textualism vs. structuralism) based on how well a theory choice serves the constitutional values we hold most dear.  In this way, I intend to argue that theory choices in constitutional argument (like theory choices in Kuhn’s science) do not usually depend on “objective” criteria—i.e. there actually is a “true and correct” way to interpret the text—but instead reflect basic kinds of constitutional value preferences. 

To do this, though, I need to flesh out my list of “constitutional values,” and I also need find a credible place to attribute finding them.  In other words, I need to be able to say how I know “X” is a widely held “constitutional value.”  I would be really grateful for any helpful thoughts or ideas….

 

Posted by Ian Bartrum on December 5, 2011 at 03:55 PM | Permalink

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Comments

good luck. the first place i suggest you you start is with the eighth amendment right to bail. today's laws and courts have completely bastardized the original definition of is right. in fact, they have changed the age old definition of bail, and replace the definition with something else to suit their own purposes. bail by definition (1700's back to plato, was a constant). todays interpretation(s)/definition(s) are multiple. how could that happen. who authorized a definition change? latin word definitions are same today as they were 2000 years go. yet definition of bail has been changed. in summary, start with the actual (not today's changed definitions) definition of a word or term, as it will clarify the constitutional values of the words expressed by in the u.s. constitution. in fact, the definitions in many cases, are also the constitutional values.

Posted by: aa | Dec 5, 2011 8:10:20 PM

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