The John M. Olin Center
Paper Abstract
880. Cass R. Sunstein, Formalism in Constitutional Theory, 09/2016; forthcoming in Constitutional Commentary.
Abstract: In law--and in many other social activities, including music, art, and literature--reasonable people can and do argue over the best conception of interpretation. Intended meaning is unquestionably one candidate, but there are others. To choose among plausible accounts of what interpretation entails, judges and lawyers need to think about the world and to look outward, rather than to pretend that definitions can solve the problem. They need to ask which approach would make our constitutional order better rather than worse.