In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be “constructed” upon by various materials. This Article takes a different approach. Instead of considering how various materials can supplement or implement the constitutional text, it focuses on how the text itself is often partially constructed in American constitutional practice. Although interpreters typically regard clear text as controlling, this Article contends that whether the text is perceived to be clear is often affected by various “modalities” of constitutional interpretation that are normally thought to come into play only after the text is found to be vague or ambiguous: the purpose of a constitutional provision, structural inferences, understandings of the national ethos, consequentialist considerations, customary practice, and judicial and nonjudicial precedent. The constraining effect of clear text, in other words, is partially constructed by considerations that are commonly regarded as extratextual. This phenomenon of constructed constraint unsettles certain distinctions drawn by modern theorists: between interpretation and construction, between the written and the unwritten constitutions, and between the Constitution and the “Constitution outside the Constitution.” Although primarily descriptive, this Article also suggests that constructed constraint produces benefits for the constitutional system by helping interpreters negotiate tensions within democratic constitutionalism.
Curtis A. Bradley & Neil S. Siegel, Constructed Constraint and the Constitutional Text, 64 Duke L.J. 1213-94 (2015)
Available at: http://scholarship.law.duke.edu/dlj/vol64/iss7/1