Corey Rayburn Yung (University of Kansas School of Law) has posted Constitutional Communication on SSRN. Here is the abstract:
Scholars from various normative and positive perspectives 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. The results of the integration of communication theory into debates about constitutional interpretation are twofold. First, the account in this Article offers a richer framework and vocabulary for 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 approach to interpretation: constitutional contextualism. This flexible approach contends that the constitutional provision being interpreted, and not a pre-selected universal theory, dictates the tools that should be 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.
Highly recommended. I haven't fully digested Yung's rich and interesting article. Although there are many points where I think I disagree with his analysis, Yung is addressing the right questions.
One minor point about my view. In discussing the interpretation-construction distinction, I advance what I call a "rational reconstruction" of the process. The rational reconstruction suggests a two-step model. Step one is the discernment of communicative content of the constitutional text (which I stipulate is called "interpretation"). Step two is the determination of legal effect, including both the decision of constitutional cases and the articulation of the legal content of constitutional doctrine (which I stipulate is called "construction"). But this model is a rational reconstruction. It is not intended as a description of the temporal order of actual deliberations–nor is it a prescription for the temporal order. Actual judges are likely to tack back and forth between interpretation and construction, and in some cases, this may be the best method. The point of the rational reconstruction is to make it clear that interpretation and construction are not alternative methods of constitutional practice. Because "construction" is stipulated to mean the process of giving the constitutional text legal effect, every case involves construction–even cases where the relevant construction simply translates the communicative content into doctrine or decision.