Legislative Constitutional Interpretation

Abstract

This is an Essay about “the how” of constitutional interpretation. Much attention has been devoted to the question of how the Constitution is interpreted in courts. Rather little attention has been devoted to the question of how the Constitution is interpreted elsewhere in the government. The Constitution tells us that Congress, the President, and state legislators and courts must adhere to its terms, but it does not tell us how much interpretive power each actor should have, nor does it prescribe rules for each actor to use when interpreting the text. I argue that constitutional interpretation by Congress is, and should be, quite different from constitutional interpretation by courts. In so doing, I combine insights from political scientists about the ways Congress operates with insights from constitutionalists who fear open-ended interpretation. Congressional interpretation is a recurring problem in constitutional law. In the last four years, momentous events have forced us to rethink how Congress should approach the task. In 1997, the Supreme Court struck down the Religious Freedom Restoration Act (RFRA) on the ground that Congress could not expand constitutional rights through ordinary legislation. The next year, Congress was required to make a judgment about the meaning of the phrase “high Crimes and Misdemeanors” in President Clinton’s impeachment trial. Last year,