How to Interpret?

  • Donald C. Dahlin


Recall that Near the End of Chapter I, I had asked you to rate the clarity of the language in the Constitution on a scale of 1 (not very clear) to 10 (crystal clear). My rating was a “6.” Obviously, I don’t know what your rating was, but I’m quite confident that it was less than a 10. I am so confident because, as we saw in chapter 1, unarguably at least some of the language in the Constitution is less than crystal clear. The inevitable result is that, at least some of the time, to determine whether a law or an administrative action is constitutional some approach will be needed to figure out what the constitutional language in question means.


Representative Democracy Supreme Court Decision Voucher Program Fourteenth Amendment Constitutional System 
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  1. 1.
    Alexander M. Bickel, The Least Dangerous Branch (Indianapolis, IN: Bobbs-Merrill Co., 1962), 16.Google Scholar
  2. 2.
    For a fuller discussion of his approach, see: Antonin Scalia, “Originalism: The Lesser Evil,” Cincinnati Law Review 57 (1989): 849–865 andGoogle Scholar
  3. Antonin Scalia, A Matter of Interpretation (Princeton, NJ: Princeton University Press, 1997).Google Scholar
  4. 15.
    Thurgood Marshall, “Reflections on the Bicentennial of the United States Constitution,” Harvard Law Review 101, no. 1 (November 1987): 2.CrossRefGoogle Scholar
  5. 19.
    Justice Breyer has articulated his approach in two books—Stephen Breyer, Active Liberty (New York: Alfred A. Knopf, 2005); andGoogle Scholar
  6. Stephen Breyer, Making Our Democracy Work (New York: Alfred A. Knopf, 2010).Google Scholar
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    James Bradley Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law,” Harvard Law Review 7, no. 3 (October 25, 1893): 129–156.CrossRefGoogle Scholar
  8. 60.
    John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980).Google Scholar
  9. 72.
    Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), 132–133.Google Scholar
  10. 81.
    Michael J. Perry, The Constitution, The Courts, and Human Rights (New Haven: Yale University Press, 1982), 70.Google Scholar

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© Donald C. Dahlin 2012

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  • Donald C. Dahlin

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