The Presuppositions of Constitutional Interpretation
Can the Constitution mean anything in and of itself, independently of the Court?
It is a matter of discussion, and no certain answer can be given. However, Americans usually talk as the Court can get the Constitution wrong, therefore presupposing that there is a meaning per se. From this assumptions, some “second-order questions” arise: what does the Constitution refer to with some expressions (like “equal protection”)? what is the Constitution? how should it be interpreted? who may interpret it? which are the limits of constitutional interpretation?
They are “second-order” (or interpretative questions) in order to be distinguished from the substantive questions of constitutional law (e.g. is right to have an abortion?) that are most commonly discussed in the public debate. However, they are compelling because they can strongly influence the law and the tradition, defining the meaning of some expressions or rights (such as “liberty”) that are used as basic steps for substantive matters.
It is said that, unlike scientific questions, answers to constitutional questions have immediate political implications that attract or repel us emotionally. However, scientific questions could have consequences no less immediately political and emotional than constitutional questions, according to the circumstances (at the time they were discussed, heliocentrism and geocentrism were questions with high political implications, differently from today).
As for scientific questions, there is no reason to deny the possibility of constitutional truth, and therefore the possibility to seek for it, with a specification: it is not possible to say that there is a moral reality, but the enterprise of constitutional interpretation presupposes that conscientious interpreters are seeking the true meaning or the best interpretation of the Constitution (without any ontological claim about moral reality or the existence of a true meaning of the Constitution).
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