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Against Political Theory In Constitutional Interpretation, Christopher S. Havasy, Joshua C. Macey, Brian Richardson

Vanderbilt Law Review

Judges and academics have long relied on the work of a small number of Enlightenment political theorists-—particularly Locke, Montesquieu, and Blackstone—-to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the Framers did not write …