Matthew D. Adler (University of Pennsylvania – Law School) has posted Social Facts, Constitutional Interpretation, and the Rule of Recognition (THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION, Matthew D. Adler & Kenneth Einar Himma, eds., Oxford U. Press, 2009) on SSRN. Here is the abstract:
This
chapter is an essay in a volume that examines constitutional law in the
United States through the lens of H.L.A. Hart’s "rule of recognition"
model of a legal system. My chapter focuses on a feature of
constitutional practice that has been rarely examined: how jurists and
scholars argue about interpretive methods. Although a vast body of
scholarship provides arguments for or against various interpretive
methods — such as textualism, originalism, "living constitutionalism,"
structure-and-relationship reasoning, representation reinforcement,
minimalism, and so forth — very little scholarship shifts to the
meta-level and asks: What are the considerations that jurists and
scholars bring to bear in arguing that one or another interpretive
method is legally favored? And can we "make sense" of this body of
argument? Is there a model of legal discourse that both accurately
describes how U.S. jurists and scholars actually argue about
interpretive methods, and that vindicates this discourse (in the sense
of seeing these actors as making valid arguments)?I find that
Hart’s rule-of-recognition model fails to describe or vindicate how
U.S. jurists and scholars argue about interpretive methods. The
problem, in a nutshell, is that Hart sees legal argument as asserting
or presupposing the social fact of contemporary official acceptance of
a rule of recognition. By contrast, jurists and scholars typically
point to social facts other than contemporary official acceptance in
arguing for the legal status of an interpretive method — for example,
the fact that the method is supported by Framers’ intent, or by U.S.
culture and tradition, or by precedent. Further, jurists and scholars
very often argue that some interpretive method is legally favored even
though the method is controversial. On Hart’s model, such a claim is
problematic — because, on his model, the content of the rule of
recognition is not controversial, but rather a matter of consensus
among officials.The upshot may just be that Hart’s model is a
failure. However, another possibility is to adopt an "error theory" of
U.S. constitutional discourse. It may perhaps be the case that U.S.
jurists and scholars often make claims for the favorable legal status
of some interpretive method that are inconsistent with the best
understanding of the nature of law.
Highly recommended.