Cass R. Sunstein (Harvard Law School; Harvard University – Harvard Kennedy School (HKS)) has posted Interpretation Is Many Things on SSRN. Here is the abstract:
The word “interpretation” covers a range of practices, including but not limited to the identification of intended meaning; use of original public meaning; and efforts both to fit and to justify existing materials. We can find different understandings of the word “interpretation” within and across fields, including literature, art, music, dance, and law. In constitutional law, most of judicial “interpretation” does not focus on intended meaning. A wide range of important constitutional cases do not rely in any way on intended meaning. A wide range of Supreme Court justices do not rely on intended meaning. The choice among different methods of “interpretation” is inescapably normative; it depends on which method would make our constitutional order better rather than worse.
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