Abstract and Keywords
This chapter focuses on approaches to interpretation of the U.S. Constitution that have been developed by scholars and judges to resolve disagreements and that encompass five domains of argumentation: text, history, structure, precedent, and consequences. It first outlines several different conceptions of originalism before turning to a discussion of nonoriginalist methods that draw upon constitutional structure, precedent, and consequences. It then describes a pluralistic approach that privileges no method above others, along with an approach that uses consistency with Brown v. Board of Education, and inconsistency with Lochner v. New York and (Dred) Scott v. Sandford, as a test of other methods and results. Finally, the chapter considers the relationship between interpretation and adjudication as well as two dichotomies in constitutional law: the distinction between constitutional meaning and constitutional decision rules, and that between constitutional interpretation and constitutional rhetoric.
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