Constitutional Rights as Allocations of Moral Authority

Abstract

When one generation entrenches a constitutional right intended to bind subsequent generations, whose moral reasoning should govern its application? Constitutional theory usually treats this as a problem of political authority, with answers clustering around two opposing positions: either the adopting generation’s reasoning controls or contemporary interpreters should decide for themselves. Yet the designers’ own moral commitments suggest a more discriminating allocation of interpretive authority. Rational designers committed to the values underlying a right have reason to bind future interpreters to some original judgments about its scope while leaving others open to independent reconsideration, despite the possibility that such reconsideration will yield conclusions contrary to their own. When prospective deference is instrumentally rational turns on the right’s justification, the degree of confidence and convergence surrounding original judgments about its scope, and the comparative epistemic and institutional position of later interpreters. Open-textured rights provisions thus function not only as first-order constraints on government, but also as implicit second-order rules, allocating interpretive authority in accordance with the relative moral authority of successive generations. This allocative function, in turn, grounds a theory of constitutional interpretation. Respecting the allocation implicit in rational constitutional design better vindicates the values commonly invoked in defense of rigid adherence to historical practice – including the rule of law, popular sovereignty, and fidelity to ordinary meaning – without granting contemporary judges a standing license to enforce their preferred moral views. Applied to \textitJones v. Mississippi and \textitUnited States v. Rahimi, the account offers a principled way of resolving recent disputes over the relevance of history and tradition.