Frederick Schauer

The Annoying Constitution: Implications for the Allocation of Interpretive Authority

PUBLISHER
William & Mary Law Review
DATE
2017
 

Abstract

Constitutional constraints often restrict unwise or immoral official policies and actions, but also often invalidate laws and other official acts that are sound as a matter of both morality and policy. These second-order side constraints--or trumps--on even official acts that are sound as a matter of first-order policy reflect deeper or longerterm values, and they are central to understanding the very idea of constitutionalism. Moreover, once we see the Constitution as restricting not only the unsound and the unwise but also the sound and the wise, we can understand why expecting those whose sound ideas and policies are nevertheless unconstitutional to impose those constraints on themselves is psychologically and politically unrealistic. Judicial interpretive supremacy can be justified, therefore, not only by the positive virtues of authoritative settlement, but also by the negative virtues of precluding officials from enforcing and interpreting constitutional constraints on themselves.

Citation

Frederick Schauer, The Annoying Constitution: Implications for the Allocation of Interpretive Authority, 58 William & Mary Law Review, 1689–1712 (2017).
 

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