Constitutional Legitimacy and Constitutional Interpretation

This is the fourth summer in which I am teaching a summer seminar on constitutional theory (which I like to bill as “the most fun one can possibly have in a law school at 7:30 on a Friday morning”).  One of the things I’ve picked up along the way is that my students find themselves much more comfortable assessing the array of competing approaches to constitutional interpretation if we spend some time at the outset discussing the question of what it is that legitimates the Constitution in the first place. 

The question of constitutional legitimacy and its connection to interpretation is something that, to my way of thinking, assumes much less prominence in con law scholarship and teaching materials than it should.  I’ll focus on teaching.  Constitutional law is frustrating for a good chunk of students due to its lack of firm footholds.  In pretty much everything else in the first-year curriculum there’s at least rough agreement on the aims of the body of law under study, and thus there are accepted premises from which to argue.  In Con Law, in contrast, almost everything is up for grabs. Gerhardt, Griffin, Rowe, and Solum (whose Constitutional Theory book I use) capture this nicely in their opening sentences: “A colleague likes to say that ‘the trouble with constitutional law is that nobody knows what counts as an argument.’  It may be more accurate to say that plenty of people think they know what does or should count, and that they often disagree.”

It seems to me that it’s critical to a full understanding of constitutional law and argumentation to recognize that our collective commitment to pay attention to the document is necessarily based on something outside the document.  The point has been made by plenty of people.  Whether it’s phrased in terms of preconsitutional rules (as discussed by Richard Kay or Fred Schauer), a sociopolitical commitment (Daryl Levinson), or some sort of weak consent or acquiescence (Michael Dorf), in an important sense we pay attention to the Constitution because we’ve decided to pay attention to the Constitution, or at least haven’t collectively decided not to pay attention to the Constitution. 

It follows, or so it further seems to me, that the nature of the mechanism by which we commit to the Constitution, and the nature of the commitment it entails, are both important to the divining the meaning of the document itself.  If it’s the consent (loosely defined) of the present-day “we the people” that matters, then we will likely think very differently about how we interpret the document than if it is the consent of the framing generation that’s the key.  (Of course, even if the operative commitment is necessarily a present one that commitment could well incorporate past commitments.)  And maybe we’d conclude, with Judge Posner, that this pursuit leads inevitably to leaps of faith and that pragmatism is the only way out.  It is not so much the destination that matters as the journey.  There is value in understanding that the disagreements that manifest themselves in the justices’ opinions are sometimes products of differences that go to the very nature of constitutionalism.

Teaching-wise, I like to open the semester in Con Law by introducing the fact that the Constitution was, in a sense, an illegal document, in that it was drafted by a group that knowingly exceeded its charter and was ratified via procedures that did not comply with the requirements of the Articles of Confederation.  This allows me to introduce the suggestion that it’s nothing within the Articles or the Constitution that leads us to pay (or not pay) attention to them.  Further, whatever it is that leads us to recognize the Constitution as the supreme law of the land rather than an illegal document probably has something to say in helping to critically approach questions about how we should interpret the document, including the appropriateness of things like doctrine, original meaning, tradition, and so on as tools of constitutional analysis.  A quick check of my bookshelf suggests that perhaps forty percent of Con Law case books open with the history of the Constitution’s drafting, that only a few of those reference the “illegality” dynamic, and that only one (Stone, Seidman) points in a significant way to the connection I’ve discussed here.

This is a big can of worms, and there’s much more to say, but in the hopes that I might not yet have crossed the tl;dr threshold I’ll simply note that this seems like a significant oversight.  And not only in the teaching terms that I’ve mostly discussed, but also in the sense that I think a lot of con law scholarship would benefit from a more express recognition of the implications of the connection between legitimacy and interpretation.