On Reading Recipes...and Constitutions
![handle is hein.journals/glj85 and id is 1847 raw text is: On Reading Recipes ... and Constitutions
GARY LAWSON*
Modem theories of constitutional interpretation typically make the truth of
propositions about constitutional meaning depend, at least to some degree, on
the extent to which those propositions (1) lead to politically legitimate results'
and/or (2) cohere with modem constitutional practice.2 That is, such theories
generally maintain that correct interpretations of the Constitution must provide
normative grounds to apply those interpretations in real cases, must be consis-
tent with at least a substantial amount of real-world constitutional decisionmak-
ing, or both.
This approach to constitutional interpretation gets it completely backwards.
The Constitution's legitimacy and consistency with modem practice depend on
the meaning of the Constitution; the Constitution's meaning does not generally
depend on its legitimacy or on current practice.3 One must first determine,
through interpretation, what the Constitution means. Then, and only then, can
one determine whether the properly interpreted Constitution generates any
political obligations and whether current practice is consistent with the Constitu-
tion. The legitimacy of the constitutional order and the constitutionality of
modem practice should be objects of inquiry rather than presuppositions of
constitutional theory.
In large measure, the backwardness of much modem constitutional theory
rests on a failure to distinguish theories of interpretation from theories of
adjudication. Theories of interpretation concern the meaning of the Constitu-
tion. Such theories can be normative (what is the correct way in which to
interpret the Constitution?) or descriptive (how do various people in fact, rightly
or wrongly, interpret the Constitution?). Theories of adjudication concern the
manner in which decisionmakers (paradigmatically public officials, such as
judges) resolve disputes. Again, such theories can be normative (how should
disputes be resolved?) or descriptive (how are disputes in fact, rightly or
* Professor, Northwestern University School of Law. I am grateful to Robert W. Bennet, Barbara H.
Granger, Patricia B.G. Lawson, Thomas W. Merrill, and Michael J. Perry for their comments.
1. See Michael C. Doff, Integrating Normative and Descriptive Constitutional Theory: The Case of
Original Meaning, 85 GEO. L.J. 1765, 1770-72 (1997) (noting interpretative theory's fascination with
legitimacy).
2. The chief advocate of coherence with practice as a criterion for interpretation is, of course, Ronald
Dworkin. See, e.g., RONALD DWORKIN, FREEDOM'S LAW 10-11 (1996) [hereinafter DWORIN, FREEDOM'S
LAW]; RONALD DWORKIN, LAW'S EMPIRE passim (1986) [hereinafter DWORKIN, LAW's EMPIRE]. As
Professor Doff points out, virtually every eclectic theory of interpretation gives consistency with past
and/or current practice at least some degree of relevance. See Doff, supra note 1, at 1794. And almost
everyone in the modern world employs an eclectic theory of interpretation.
3. There can be limited circumstances under which legitimacy, practice, or both can be relevant to
constitutional meaning. See infra notes 35-36 and accompanying text. But those circumstances, if any,
must be identified through interpretative tools that do not use legitimacy or practice as primary criteria
of interpretation.
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On Reading Recipes...and Constitutions
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