In Search of a First-person Plural, Second-best Theory of Constitutional Interpretation

The purpose of this paper is not to argue for a particular approach to constitutional interpretation, but to map the domain thereof and clarify the requirements that an adequate theory of the subject must meet. A comprehensive constitutional theory has to address both how and by whom a given constitution should be interpreted. While everyone admits that these two issues are not entirely unrelated, many constitutional theorists presume that a theory of constitutional interpretation can usefully insulate these two questions. The argument is that once we have answered the question of who will interpret the constitution and we have made a decision on institutional design, we can then focus our efforts on the proper method of interpretation. Although I do not deny that the two questions can be analytically separated, my contention is that a theory of constitutional interpretation focusing only on the how question is wholly inadequate.