Interesting debate between Michael Stokes Paulsen in his new article, Does the Constitution Prescribe Rules for its Own Interpretation?, and Andrew Coan, who disagrees in his article, The Irrelevance of Writtenness in Constitutional Interpretation.
It is frequently assumed that the Constitution specifies no rules governing how it is to be interpreted or applied. But is this really so? This article argues that this commonly held assumption is seriously mistaken. A careful reading of the Constitution’s text shows that the Constitution itself prescribes an interpretive methodology of original public meaning textualism. The Constitution sets forth these general interpretive instructions in Article VI, in language confirmed by the Enacting Clause (Preamble), the “Establishment Clause” (of Article VII), by the structure and logic of Article V, and by the Due Process Clauses of the Fifth and Fourteenth Amendments. In addition, the Constitution contains a number of specific, “retail” interpretive instructions, including the Ninth, Tenth, and Eleventh Amendments.
If an originalist approach were sufficiently unattractive substantively but so was jettisoning the Constitution, the normatively best option might be for contemporary interpreters to ignore even an explicit instruction to be originalists and instead apply some other interpretive approach to the remainder of the constitutional text. It follows a fortiori that contemporary interpreters might be normatively justified in ignoring the implicit interpretive instructions Paulsen purports to find in Article VI, which unlike an explicit instruction, simply disappear under a range of plausible nonoriginalist interpretive approaches.An important implication is that interpretive choice need not be all or nothing, pace many originalists. Both constitutional text and original meaning can be embraced in part or in whole, depending on the values that would be served thereby.
From Paulsen’s article:
In what follows, I develop this straightforward thesis. It is an “intra-textual” argument
and, in that (non-pejorative) sense, circular.13 My methodology is original-public-meaning
textualism. Applying that methodology to the Constitution, I conclude that the original public
meaning of its provisions nearly overwhelmingly suggests the conclusion that the Constitution is
to be interpreted and applied in accordance with the original public meaning of its words,
phrases, and internal structural logic. One could (I suppose) posit an interpretive theory that
begins with some “outside” stance, employ that stance to “interpret” the Constitution in a fashion
governed by such external-to-the-document interpretive principles, and thereby break the
hermeneutic circle from outside of it. Such approaches, however, in addition to their other
flaws,14 surely are no less bootstraps than the proposition that the original meaning of the text
compels original-meaning-textualism.15 My objective here is simply to destroy the common
canard that there exists no set of internal interpretive instructions in the Constitution.
I have wondered about this for years. It seems kinda obvious to me that putting a Constitution in writing must have the effect of injecting the meaning, as understood at the time it was drafted, into the document. Were future generations free to redefine the terms, why bother having a written Constitution? Coupled with Article V, this seems all the more obvious.
I actually asked my class, as a hypothetical, what would happen i f Article III proscribed the means by which federal Judges should interpret cases. The discussion was fascinating. I need to take a closer look at this article.