Constitutional Constructionism

The previous chapter assessed Robert Bork’s version of the doctrine of original intent. In contradistinction to constitutional originalism and intentionalism lies constitutional constructionism. According to this theory, judges are to decide cases involving the Constitution by way of the content of the body of law itself, in conjunction with policies and extra-legal considerations. As Felix Frankfurter writes, “Every [legal] decision is a function of some juristic philosophy.” And judges are at least in some cases to engage in interpretation of the law as a creative or discovery process, and that the understanding of the meaning of the law may even change as a result of this process.4 However, this approach admits that “Not everything that courts do is consistent with the ideal of interpretation. Not everything that elaborates constitutional meaning is interpretation.”