Document Type
Article
Publication Date
2024
Publication Information
124 Colum. L. Rev. 1661 (2024).
Abstract
What kinds of reasons should matter in choosing an approach to constitutional or legal interpretation? Scholars offer different types of reasons for their theories of interpretation: conceptual, linguistic, normative, legal, institutional, and reasons based on theories of law. This Article argues that normative reasons, and only normative reasons, can justify interpretive choice. This is the "normative choice thesis." This Article formulates the normative choice thesis and offers a systematic analysis of the different kinds of reasons usually canvassed to defend theories of interpretation, showing why each type of non-normative reason cannot justify interpretive choice. In doing this, this Article also offers an account of interpretive choice and its relation to theories of interpretation. All the ways of determining the meaning of a legal source-and all the actions that could be undertaken instead-are alternatives for interpretive choice, regardless of what counts as "interpretation."
If interpretive choice cannot be grounded in some immutable truth about the idea of interpretation or language, but only on normative reasons, then the proper method of constitutional or statutory interpretation is liable to change with circumstances. This questions some well-established features of our legal culture, such as the common practice of committing to a single method of interpretation ("I'm an originalist," "I'm a living constitutionalist"), the expectation that judges be consistent in their approaches to interpretation, and the assumption that some legal provisions should always be interpreted in the same way.
Recommended Citation
Francisco J. Urbina,
Reasons for Interpretation,
124 Colum. L. Rev. 1661 (2024)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1579
