Interpretive Fictions in Constitutional Law
One issue that I’ve been thinking about lately — in part because of a presentation that I gave at a conference in October — is the use of legal fictions in constitutional interpretation. By a fiction, I mean something that everybody knows is not true but says anyway for some jurisprudential purpose. Many famous scholars (e.g., Bentham, Maine, and Fuller) have talked about the use and abuse of fictions at common law, but there is comparatively little discussion of those issues in constitutional law. Let’s consider some candidates:
1. We live under a codified Constitution.
Students are taught that we are different from, say, Great Britain because we have a written constitution and they do not. We really mean codified rather than written, of course, in that the UK has lots of written texts that define its constitutional practices — they just aren’t in one place. But does anybody really think that the “Constitution” actually represents constitutional law in practice. Think of the judicial precedents, customs, landmark statutes, and other authorities that have displaced large parts of the text. Why, then, do we continue to insist that we have a codified Constitution?
2. The Commerce Clause is the basis for broad federal power
We say that antidiscrimination statutes or ones creating federal crimes for things like drug possession are about commerce. Does anybody really believe that, or do they just say that because the prevailing doctrinal formula requires it? Why do we keep saying that, especially when the other textual powers listed in Article One, Section Eight are rendered superfluous by the interpretation currently given to the Commerce Clause?
I’m trying to come up with other examples. What do you think?