Constitutional Interpretation as Constitutional Creation: The 1999-2000 Harry Eckstein Lecture

This paper starts from what I take as two plain facts of political life: First, the maintenance of any constitutional order whatsoever requires some constitutional interpretation; and, second, the complex normative bases of constitutional democracy cause this necessity to operate especially often. Next comes the gist of the paper, the argument that, in a constitutional democracy, interpreters must exercise a wide range of discretion that inevitably allows, in fact frequently requires, a degree of creativity that may change the constitutional order. Either through a series of patches or a single dramatic restyling, the effect of constitutional interpretation will sometimes help create a new order. Finally, I briefly discuss the problems for political stability that the necessity of creative interpretation poses, leaving to the chapter that follows in the book itself a fuller discussion of this issue