AALS Section on Constitutional Law Call for Papers (from Rick Garnett)

[Nelson Tebbe]

  At the 2010 Annual Meeting of the AALS, the Section on
Constitutional Law will host a panel exploring the distinction between
"interpretation" and "construction" in constitutional law.   One paper
from an untenured, non-adjunct, faculty of law member will be included.
Its author will join a panel that will include Professors Mitch Berman,
Rick Hills, and Keith Whittington, among others. The author must be
teaching at an AALS member or AALS fee-paid law school.

        To submit an entry, send an abstract of your paper (five pages
or less, single-spaced) electronically to Pam Davis:
pddavis1 at samford.edu.  She is the assistant to executive committee
member Brannon P. Denning.   Please include your name, institutional
affiliation, and contact information on a cover sheet only.  All entries
will be subject to a blind review by various members of the Executive
Committee of the Section on Constitutional Law.

        Submissions must be received by no later than May 1, 2009.  Late
submissions will not be accepted.   The author of the abstract that is
chosen will be expected to produce a 20 page (single-space) manuscript
by the time of the AALS panel.  If you have any questions, please e-mail
Professor Denning (bpdennin at samford.edu).


        From the panel description:


        Recent work in constitutional theory has posited a distinction
between "constitutional interpretation" and "constitutional
construction."  The core idea is that interpretation is concerned with
the linguistic meaning of the constitutional text, whereas construction
implements and supplements that meaning.  This idea is related to other
recent conversations in constitutional theory, including discussion of
"the new doctrinalism," constitutional implementation, and the
distinction between constitutional rights and remedies.

        Constitutional theorists have discussed the
interpretation-construction distinction in diverse ways.  Some scholars
have suggested originalist constitutional interpretation can be
reconciled with a living-constitutionalist approach to constitutional
construction.  Others have suggested that judicial review should be
limited to the activity of constitutional interpretation, while the
political branches should bear primary responsibility for construction.
Some originalists criticize the distinction on the ground that it opens
the door to judicial construction that is unconstrained by original
meaning.  In an earlier era, legal realists critiqued the distinction on
the ground that interpretation of linguistic meaning and construction of
legal doctrine cannot be separated in practice.

        This program will evaluate and explore the
interpretation-construction distinction from a variety of angles.  The
questions raised may include the following: (1) Does the
interpretation-construction distinction capture a real difference
between modalities or stages of constitutional practice?  (2) What is
the basis for the distinction?  (3) Is constitutional construction by
judges legitimate or should construction be limited to the political
branches, or is the elaboration of constitutional doctrine an integral
part of the judicial enterprise?  (4) What norms should govern
constitutional construction?  (5) What role should precedent, historical
practice, politics, social norms, and/or considerations of justice and
morality play in the construction of constitutional doctrine?  (6)
Should constitutional construction be confined by the limits imposed by
constitutional interpretation, or should constitutional actors sometimes
adopt amending or saving constructions that are inconsistent with the
constitutional text?

______________________________
Nelson Tebbe
Associate Professor of Law
Brooklyn Law School
250 Joralemon Street
Brooklyn, NY  11201
718.780.7960
nelson.tebbe at brooklaw.edu
Papers available at http://ssrn.com/author=343134

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