Quality and quantity in constitutional interpretation: the quest for analytic essentials in law

Ronald A. Cass ()
Additional contact information
Ronald A. Cass: Boston University School of Law

European Journal of Law and Economics, 2018, vol. 46, issue 2, No 3, 183-203

Abstract: Abstract Henry Manne wrote about many topics central to the law-and-economics canon but also over a period of more than a decade later in life worked on a theory of constitutional interpretation, producing a paper and lectures on this subject. His goal was to use insights from economics to improve constitutional analysis, in particular seeking to ground constitutional interpretation in quantitative assessments he hoped would be both true to the primary goal of constitution-makers and capable of providing guidance to judges in ways less subject to the pull of political preferences. Despite his concerns with controlling constitutional interpretation in practice, the instincts Manne brought to this endeavor ran more to matters of theory than to its implementation by judges, identifying important propositions for interpretation but failing (by his own admission) to produce a test that fulfilled his aspirations. The strengths and weaknesses of this work provide an intriguing contrast with writings from Antonin Scalia, the American jurist and scholar whose approaches to both constitutional and statutory interpretation had a profound impact on jurisprudence over the past three decades. Like Manne, Scalia highly valued more determinate methods of analysis and was deeply concerned with the architecture of constitutional creation and effectuation. His focus, however, was more on the practical question of what happens when a particular sort of official has the power to implement a highly indeterminate test and what test best constrains interpretation in ways faithful to the interpretive task. Those goals undergird Scalia’s commitments to textualism and originalism. Manne’s and Scalia’s approaches to constitutional interpretation are instructive on the purposes served by analytical tools in disparate settings. In particular, they offer contrasting and complementary visions, providing insights about the domains of law-and-economics, legal analysis, practical judgment, and perspective.

Keywords: Law; Interpretation; Constitutional law; Textualism; Law-and-economics (search for similar items in EconPapers)
JEL-codes: K10 K19 K30 K39 K40 K49 (search for similar items in EconPapers)
Date: 2018
References: Add references at CitEc
Citations:

Downloads: (external link)
http://link.springer.com/10.1007/s10657-017-9572-5 Abstract (text/html)
Access to the full text of the articles in this series is restricted.

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:kap:ejlwec:v:46:y:2018:i:2:d:10.1007_s10657-017-9572-5

Ordering information: This journal article can be ordered from
http://www.springer.com/journal/10657

DOI: 10.1007/s10657-017-9572-5

Access Statistics for this article

European Journal of Law and Economics is currently edited by Jürgen Georg Backhaus, Giovanni B. Ramello and Alain Marciano

More articles in European Journal of Law and Economics from Springer
Bibliographic data for series maintained by Sonal Shukla () and Springer Nature Abstracting and Indexing ().