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01/21/2023

Anthony Bellia & Bradford Clark: The Constitutional Law of Interpretation
Michael Ramsey

Anthony J. Bellia Jr. (Notre Dame Law School) & Bradford R. Clark (George Washington University Law School) have posted The Constitutional Law of Interpretation (Notre Dame Law Review, Vol. 98, No. 519, 2022) (100 pages) on SSRN.  Here is the abstract:

The current debate over constitutional interpretation often proceeds on the assumption that the Constitution does not provide rules for its own interpretation. Accordingly, several scholars have attempted to identify applicable rules by consulting external sources that governed analogous legal texts (such as statutes, treaties, contracts, etc.). The distinctive function of the Constitution—often forgotten or overlooked—renders these analogies largely unnecessary. The Constitution was an instrument used by the people of the several States to transfer a fixed set of sovereign rights and powers from one group of sovereigns (the States) to another sovereign (the federal government), while maintaining the “States” as separate sovereigns with residual authority. Thus, constitutional interpretation necessarily entails ascertaining the extent to which the Constitution transferred sovereign rights from the States to the newly created federal government. The law of nations prescribed rules that governed both the formation and the interpretation of instruments used to transfer sovereign rights. Under these rules, legal instruments (regardless of their form) could transfer sovereign rights only if they did so in clear and express terms, and those terms were to be given their ordinary and customary meaning as of the time of adoption. Because the Constitution was an instrument used for this purpose, the Founders recognized that the applicable rules were “clearly admitted by the whole tenor of the instrument.” Accordingly, these rules became an inextricable part of the legal content conveyed by the text of the Constitution. Not surprisingly, the Supreme Court used these rules to interpret the Constitution from the start. Recovering this constitutional law of interpretation has at least two important implications. First, by “admitting” the background rules of interpretation, the Constitution requires interpreters to employ some form of originalism in constitutional interpretation. Second, the nature of the Constitution and the rules governing its interpretation confirm that the Supreme Court has properly employed three doctrines to uphold the States’ residual sovereignty—namely, sovereign immunity, the anticommandeering doctrine, and the equal sovereignty doctrine.

The authors presented an earlier version of this paper at the February 2022 Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference at the University of San Diego School of Law.