Michael L. Smith (University of Oklahoma – College of Law) has posted Interpretive Facades (77 Case Western Reserve Law Review (Forthcoming 2027)) on SSRN. Here is the abstract:
When interpreting constitutional provisions, courts frequently proclaim rules of interpretation at the outset of their analysis that purportedly govern and guide the subsequent inquiry into constitutional meaning. Yet they often depart from these rules—sometimes applying entirely different methods, sometimes applying additional interpretive theories, and sometimes using the same rule to describe entirely different approaches to constitutional interpretation. I describe these initial statements of interpretive theory as “interpretive facades.”
This article identifies and classifies interpretive facades. Facades may be misleading, where courts claim they are using one method, yet apply an entirely distinct approach. They may also be oversimplified, in which a court claims to apply a particular method (or set of methods), yet go on to apply the claimed methods along with other approaches. Once I’ve identified variations on interpretive facades, I address their potential causes as well as their implications for ongoing discussions of judicial candor, the official story of the law, and methodological stare decisis. Interpretive facades risk misleading those who hope to classify and apply cases’ law of interpretation. Courts must therefore exercise caution to avoid engaging in such behavior, and those reading opinions must do so thoroughly to avoid misstating the law and perpetuating interpretive facades.
Highly recommended.