Constitutional interpretation.

Abstract

"Judges should interpret the law, not make it." Nearly everyone assents to this proposition (or something like it), so why is there controversy? In this essay I examine three grounds or sources of disagreement. First, the concept of interpretation is unclear. Second, there is uncertainty about whether legal interpretation raises special interpretive problems. Third, there is an implicit assumption among legal theorists that constitutional interpretation is a specially problematic kind of legal interpretation. My goal is to clarify these and other misconceptions. In Chapter 2 I connect normative theories of adjudication to the concept of interpretation. In Chapters 3 and 4 I develop a conception of interpretation that explains how constitutional interpretation is possible and why it is necessary, thus refuting proponents of the invention and discovery models of adjudication. In Chapters 5 and 6 I develop theories of expression meaning and constitutional interpretation, respectively. Chapters 7 and 8 are critical analyses of the interpretive theories of H. L. A. Hart, Lon L. Fuller, and Ronald Dworkin.