58 Pages Posted: 24 Oct 2015 Last revised: 22 Jun 2016
Date Written: December 9, 2015
Scholars advocating various normative and positive theories endorse the notion that the Constitution is communicative of its meaning. However, there has been little discussion as to what “communication” means in the constitutional context. This Article addresses the communication gap by introducing and applying communication-based concepts and models to constitutional theory. There are two results of that integration. First, the account in this Article offers a richer framework and vocabulary for structuring ongoing debates about interpretative theory and constitutional meaning. Second, the addition of communication concepts and norms into the debate about constitutional meaning points toward a new perspective regarding interpretation: constitutional contextualism. This flexible approach contends that the constitutional provision being interpreted, and not a preselected universal theory, should dictate the tools that are used to analyze it. Significantly, this approach does not seek to negate the dominant theories of constitutional interpretation. In fact, the insights of various originalist and living constitutionalist theories are essential for selecting or synthesizing which interpretive methods are preferable in specific situations. By adopting a flexible, contextual, communication-based approach to identifying the best constitutional meaning in particular cases, we can end the growing fetishization of global interpretive theories and better adapt to the real-world needs of constitutional readers.
Keywords: Constitution, Interpretation, Originalism, Living Constitutionalism, Communication Theory
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