Document Type

Article

Publication Date

1999

Abstract

In this Article, Professor Pritchard and Professor Zywicki examine the role of tradition in constitutional interpretation, a topic that has received significant attention in recent years. After outlining the current debate over the use of tradition, the authors discuss the efficiency purposes of constitutionalism--precommitment and the reduction of agency costs--and demonstrate how the use of tradition in constitutional interpretation can serve these purposes. Rejecting both Justice Scalia's majoritarian model, which focuses on legislative sources of tradition, and Justice Souter's common-law model, which focuses on Supreme Court precedent as a source of tradition, the authors propose an alternative model--the "finding model"-- from which constitutionally significant traditions can be identified. This model looks to the common law and state constitutional law as its sources of tradition. Finally, using specific examples, the authors demonstrate how this model can aid the Court in two specific contexts: construing ambiguous but enumerated federal constitutional rights and recognizing unenumerated rights.