William & Mary Bill of Rights Journal
Abstract
This Article integrates two scholarly conversations to shed light on the divergent ways in which courts and legislatures implement constitutional texts. First, there is a vast literature examining the different ways in which courts and extrajudicial institutions, including legislatures, implement the Constitution’s textually vague expressions. Second, in recent years legal philosophers have begun to use philosophy of language to elucidate the relationship between vague legal texts and the content of laws. There is little scholarship, however, that uses philosophy of language to analyze the divergent ways in which legislatures and courts implement vague constitutional provisions. This Article argues that many legislative and judicial enactments can—and should—be recharacterized as efforts to “precisify” vague constitutional language. This re-characterization, I argue, has at least two benefits. First, it provides a resource for defending the legitimacy of “legislative constitutionalism” in cases where there is a divergence between how courts and legislatures implement a constitutional text. Second, it will enable scholars to move beyond longstanding and sometimes unproductive taxonomic debates concerning the types of activity that count as constitutional interpretation.