Noninterpretivism

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NONINTERPRETIVISM

This ungainly name was invented as a counterpart of interpretivism, the view that courts, in deciding on the meaning of the Constitution, should find their authoritative sources only in the constitutional text and the clearly established intentions of those who adopted the text. A noninterpretivitst, then, was one who believed that courts might properly go beyond these sources, enforcing constitutional norms not readily discernible in the text or the Framers' intentions, narrowly conceived. These terms lost their vogue fairly quickly because few commentators (and no judges) wanted to admit that their views were anything other than interpretations of the Constitution.

Today's commentary uses other terms that are more descriptive of their referents. "Textualism," for example, refers to a view that focuses closely on the Constitution's words. Almost no commentators now profess to be strict textualists. Justice hugo l. black is the modern Supreme Court's strongest claimant to being a textualist, and even he had his moments of backsliding. originalism, which limits the authoritative sources to the text and the original intent of the Framers, has a number of adherents among today's commentators and a smaller number among the federal judiciary, but none among the Justices. By the end of the 1980s, however, sightings of noninterpretivists had become rarer than sightings of Bigfoot.

Kenneth L. Karst
(1992)

Bibliography

Brest, Paul 1980 The Misconceived Quest for the Original Understanding. Boston University Law Review 60:204–238.

Ely, John Hart 1980 Democracy and Distrust: A Theory of Judicial Review, chaps. 1 and 2. Cambridge, Mass.: Harvard University Press.

Levy, Leonard W. 1988 Original Intent and the Framers' Constitution. New York: Macmillan.

Perry, Michael J. 1982 The Constitution, the Courts, and Human Rights. New Haven, Conn.: Yale University Press.

Tushnet, Mark V. 1983 Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles. Harvard Law Review 96:781–827.