Low Stakes and Constitutional Interpretation

26 Pages Posted: 31 Aug 2010

See all articles by Adam M. Samaha

Adam M. Samaha

New York University School of Law

Date Written: August 29, 2010

Abstract

Many of us engage in debates, sometimes intense debates, over the proper method of constitutional interpretation for judges. This paper offers six reasons to believe that these debates involve low stakes, in the sense that the choice among competing methods will not determine outcomes in a significant number of important cases. These reasons involve mainstream constraints, overlapping results, indeterminate results, intolerable results, interpretation without decision, and unimportant constitutional decisions. After a suitably brief investigation of theoretical and experimental resources on low-stakes decision making, the paper suggests how debates over constitutional interpretation by judges might proceed if more people become convinced that the stakes are indeed low. Three venues of debate are considered - academia, the judicial appointments process, and judiciaries - along with stakes beyond case outcomes.

Keywords: Judicial Review, Constitutional Interpretation, Interpretive Method, Constitutional Discourse, Law and Politics Relationship, Stake Effects

Suggested Citation

Samaha, Adam M., Low Stakes and Constitutional Interpretation (August 29, 2010). University of Chicago, Public Law Working Paper No. 318, Available at SSRN: https://ssrn.com/abstract=1669381 or http://dx.doi.org/10.2139/ssrn.1669381

Adam M. Samaha (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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