Constitutionally Required Writing: Is There a Message in the Medium?

Abstract

In the last several decades, media scholars have explored the medium of written communication and the effect that the inherent qualities of this medium can have on the message conveyed. In this Article, I examine the four clauses of the Constitution that require certain communication to take place in writing — the Journal Clause, the Presentment Clause, the Opinion Clause, and the Twenty-Fifth Amendment — in light of the insights gained from a survey of this scholarship. First, I summarize some of the inherent qualities of writtenness, drawing on existing scholarly exploration of the medium of writing. Second, I discuss each of the four clauses of the Constitution mentioned above, suggesting that examining them in light of these qualities of writtenness reveals valuable insights into important questions of constitutional law. Finally, I briefly discuss the distinction between interpretation and construction. Because the clauses I examine in this Article are relatively specific and determinate, most of the dominant theories of constitutional interpretation will assign them similar content, making the exploration undertaken in this Article broadly relevant to their construction and application. 2 Constitutionally Required Writing [22-Jan-2013