Reply: The Institutional Dimension of Statutory and Constitutional Interpretation

Cass Sunstein and Adrian Vermeule argue in Interpretation and lnstitutions that judicial interpretation of statutes and constitutions should take account both of the institutional framework within which interpretation takes place and of the consequences of different styles of interpretation; they further argue that this point has been neglected by previous scholars. The first half of the thesis is correct but obvious; the second half, which the authors state in terms emphatic to the point of being immodest, is incorrect. Moreover, the authors offer no feasible suggestions for how the relation between interpretation and the institutional framework might be studied better than it has been by their predecessors. And the article is rife with unresolved tensions, for example between the article’s theses and Sunstein’s previous scholarship and between the article’s insistence on rigorous empiricism, on the one hand, and, on the other, its empirically ungrounded praise for judicial formalism and “clause-bound interpretation” of the Constitution, its implicit skepticism whether constitutional rights (unless clearly stated in the text of the Constitution) should be judicially enforceable at all, and its explicit enthusiasm for administrative agencies. The survey of previous scholarship lacks breadth and depth; an unkind critic might describe the article as a species of armchair legal scholarship that pitches its critique at so lofty an altitude that the authors have difficulty seeing the objects of their criticisms clearly. Nevertheless, the article contains a number of interesting observations and shrewd criticism, and is useful as a reminder of an important issue that, although it has not been overlooked, does deserve additional attention.