Timothy A.O. Endicott (University of Oxford – Faculty of Law; All Souls College) has posted Constitutional Interpretation (Forthcoming in Richard Bellamy and Jeff King eds, The Cambridge Handbook of Constitutional Theory (Cambridge University Press 2021)) on SSRN. Here is the abstract:
The charm of interpretation –the urge we all feel to describe our whims as our interpretations– puts constitutional law under an extraordinary strain. It pulls against the constitutional imperative of the rule of law. As a result, interpretation can become the captivating focus of constitutional adjudication. The tension between the rule of law and the charm of interpretation is the focus of this chapter.
It is surprisingly difficult to explain the distinction between identifying the requirements of the constitution through interpretation, and merely calling it your ‘interpretation’, when you say whatever you wish the constitution to require. It is impossible to draw the distinction in a way that will attract consensus. Yet the rule of law depends on the distinction. I argue that the difficulty in distinguishing between constitutional interpretation and mere invention arises from the tension between the significance of a constitution (its capacity to secure constitutional justice), and the significations of the constitution makers. But I also argue that judicial change to the constitution is not in principle contrary to the ideals of constitutionalism.
Highly recommended, but indicative, I think, of a substantial gap between constitutional theory in the United States and in the United Kingdom.