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03/14/2018

Jack Balkin: The Topics in Constitutional Interpretation
Michael Ramsey

Jack M. Balkin (Yale University - Law School) has posted Arguing About the Constitution: The Topics in Constitutional Interpretation (Constitutional Commentary, forthcoming) on SSRN.  Here is the abstract:

Constitutional construction is the element of constitutional interpretation that implements and gives effect to the Constitution. Two features of legal practice help ensure that construction is guided by and furthers the Constitution. The first is an interpretive attitude of fidelity to the Constitution and to the constitutional project; the second is a set of techniques derived from the common law. Lawyers and politicians adapted common law techniques for construing legal texts to the U.S. Constitution once it became a legal document. American lawyers still employ descendants of these techniques today. These techniques are what classical rhetoric calls topoi or “topics” that are characteristic of American constitutional law. These topics are tools for the analysis of legal problems and for the generation of legal arguments. They involve commonplace but incompletely theorized justifications for constitutional interpretation.

Constitutional topics connect the text of the Constitution to its implementation; they allow people with very different views to argue that their proposed interpretations are faithful interpretations of the Constitution and further the Constitution. The article explains the topical approach to constitutional argument and contrasts it with Philip Bobbitt’s well-known theory of “modalities” of constitutional argument. Unlike Bobbitt’s model, the topical approach is consistent with many different kinds of constitutional theories, including originalist theories.

This is one of the papers presented at the Originalism Works-in-Progress Conference in February.  Professor Balkin has additional thoughts here: Originalism as a Topic versus Originalism as a Theory.