Christopher Serkin & Nelson Tebbe: Is the Constitution Special?
Christopher Serkin (Vanderbilt Law School) and Nelson Tebbe (Brooklyn Law School; Cornell Law School) have posted Is the Constitution Special? (Cornell Law Review, Vol. 101, p. 701, 2016) on SSRN. Here is the abstract:
“[W]e must never forget, that it is a constitution we are expounding.” If there was such a danger when Chief Justice John Marshall wrote those words, there is none today. Americans regularly assume that the Constitution is special, and legal professionals treat it differently from other sources of law. But what if that is wrongheaded? In this Article, we identify and question the professional practice of constitutional exceptionalism. First, we show that standard arguments from text, structure, and history work differently in constitutional law. Second, we examine the possible justifications for such distinctive interpretation among lawyers, and we find them mostly unconvincing. Neither entrenchment, nor supremacy, nor democratic legitimacy sets the Constitution apart from other sources of law in a way that supports interpretive exceptionalism. In fact, the best argument for the practice is simply that the Constitution is regarded as unique — that it occupies a privileged place in American culture and political mythology. But even if that status can justify applying some specialized methods to the document, it cannot explain every markedly divergent practice that we see among contemporary legal professionals. In the conclusion, we reveal one normative motivation for the project. All too often, constitutional argument is deployed in ordinary politics as a kind of trump, with the purpose and effect of shutting down policy debate. Legal professionals contribute to this tactic when they craft rarified interpretive methods without justification. Demythologizing constitutional law undercuts its use as a political blunderbuss.
I agree with the conclusion, though perhaps not with all of the authors' reasons nor their implications. This was also Justice Scalia's view, as reflected for example in Reading Law (in which he and co-author Bryan Garner) discussed interpreting the Constitution in the same way as interpreting other legal texts such as statutes). One of the implications (in my view, and also Justice Scalia's) is to endorse constitutional originalism, since (as I've argued here many times) originalism by other names is standard practice in statutory interpretation.