The Inference from Authority to Interpretive Method in Constitutional and Statutory Domains
Stack, Kevin M.
Should courts interpret the Constitution as they interpret statutes? This question has been answered in a wide variety of ways. On the one hand, many scholars and jurists understand constitutional and statutory interpretation as largely overlapping, continuous, or converging. For some, this overlap follows directly from the Constitution's status as a form of legislated law. In this way of thinking, because the Constitution, like a statute, was bargained over and formally adopted, it should be interpreted in accordance with general principles applicable to legislated law. Proponents of this view argue that if constitutional interpretation appears distinctive in practice, that is because it involves the application "of usual principles" to "an unusual text," not because special principles apply. For others, the commonality between constitutional and statutory interpretation follows from more general commitments about the character of law. The premise, for instance, that the fundamental imperative for courts is to make decisions-whether constitutional, statutory, or common law-that align with contemporary values renders constitutional, statutory, and common law methodology continuous.