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02/22/2022

Lawrence Solum on Constitutional Principles
Michael Ramsey

At Legal Theory Blog, Legal Theory Lexicon: Principles in Constitutional Theory.  From the introduction:

When studying constitutional law, students are likely to be exposed to the idea that interpretation of the United States Constitution may include reference to what are sometimes called "constitutional principles"--general and abstract normative ideas that can aid or guide attempts to glean meaning from the text and may even provide "extraconstitutional" or "nontextual" reasons for decisions in constitutional cases.  For example, interpretation of the equal protection clause of the fourteenth amendment might be guided by an "antisubordination principle" or an "equal citizenship principle."  Similarly, the federalism provisions of the constitution might be interpreted in light of a principle of "dual sovereignty" or a principle of "state sovereign immunity."

What are constitutional principles?  How do they relate to legal theory more generally?  Where do they come from?  What role can they play in constitutional interpretation and the decision of particular cases?  This entry in the Lexicon explores these questions and examines the role of principles in constitutional interpretation. 

And from later on:

Most readers will immediately grasp the theoretical significance of the distinction between direct and textualist use of constitutional principles.  Some theories of constitutitional interpretation insist that the text of the constitution plays an essential role in constitutional law.  "Textualism" or "original meaning originalism," for example, insist that the linguistic meaning of the constitution is given by the "original public meaning" of the constitutional text.  It might be thought that these theories are inconsistent with constitutional principless, but, as we have seen, this is not necessarily the case.  If constitutional principles are used to resolve ambiguity or vagueness, then their use may be entirely consistent with an approach that gives pride of place to the original public meaning of the constitutional text.

On the other hand, there are alternative constitutional theories that seem more consistent with the direct use of constitutional principles.  For example, some forms of original intentions originalism conceptualize the original intentions of the framers as general principles: these principles (or intentions) can then be applied directly to resolve particular cases.  Similarly, Ronald Dworkin's approach to constitutional interpretation could be understood as consistent with the direct approach to constitutional principle.

Regular readers won't be at all surprised that I'm very skeptical (to put it mildly) of "constitutional principles" stated in the abstract and unconnected to the Constitution's text.  There are of course principles incorporated into the text (as in "the freedom of speech" referenced in the First Amendment) and there are principles implemented by the text (such as separation of powers).  And there are background legal rules that the Constitution may have implicitly adopted because they were widely assumed at the time of enactment.  But I have a hard time seeing how abstract constitutional principles are identified apart from the text or the specific background assumptions of the relevant time.  One can say, for example, that privacy and personal autonomy are constitutional principles, and maybe they are -- but maybe they aren't, and I'm not sure how that would be proved (other than by the text or widely shared background assumptions of the relevant time).  More often, it seems to me, "constitutional principles" are those that the speaker thinks ought to be incorporated into the Constitution, even though they aren't.  (See, e.g,, here).  Because if they were incorporated into the text, they wouldn't need to be "constitutional principles" -- they would just be part of the Constitution.