Northwestern Law Review Colloquy
What was the purpose of the American Constitution? What was it made to do by those who made it? This question — which might be at the center of constitutional theory — is not explicitly asked as often as one might think. Instead, it frequently takes a backseat to other questions about the appropriate mode of constitutional interpretation or the specific purposes of particular texts. And yet it is an important question. How did the Framers (and then the second Framers, the amenders) imagine their own purposes? What are legitimate ways to determine their purposes? Most importantly for the purposes of this colloquy, should their general purposes in constitutional design have any bearing on how courts review the constitutionality of congressional activity? I have argued in many places — including in the prior pieces in this colloquy — that the Constitution was designed for fighting corruption. Others, including Professor Lawrence Lessig, have made similar arguments; in a brief to the Supreme Court in a recent case, Lessig chronicled in exhaustive fashion the depth and meaning of the word corruption to the men who wrote the Constitution. The argument shows how anti-corruptionism was understood as a central purpose at the time of its drafting. I have used the text of the Constitution, political debates, discussions, contemporary writings about the Constitution, and, most importantly, the debates inside the Constitutional Convention to show that the men who wrote the Constitution saw the Constitution’s job — or purpose — or function — to be anti-corruptionism. In this Essay I turn away from proving that corruption was a purpose that motivated the Constitution, and I ask the readers to assume, for the sake of argument, that it was. I instead shift to Tillman’s challenge: Should a motivating purpose of the Constitution play a role in constitutional interpretation? If so, what role? Original intent of particular clauses is frequently called upon to fill in textual gaps in the Constitution. But what of original intent of the Constitution as a whole? Structure, in at least two instances — separation of powers and federalism — is sometimes used both to interpret particular texts, and to act something like a freestanding constitutional principle. Is this because separation of powers was a purpose of the Constitution? Purpose occupies an oddly undefined land — it is somewhere between structure, the purpose of particular clauses, and arguments about what constitutions in general are designed to do. This Essay is an introduction to a generic argument about constitutional purpose and its role in court cases. It first examines what constitutional purpose might look like if it played a role in constitutional decisionmaking, and explains how purpose is different than closely related modes of constitutional interpretation.
Constitutional Purpose and the Anti-Corruption Principle, 108 Nw. L. Rev. Colloquy 200
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/609