Proper constitutional interpretation takes both text and past practice as its object: Lawyers and judges faced with a contemporary constitutional issue must try to construct a coherent, principled, and persuasive interpretation of the text of particular clauses, the structure of the Constitution as a whole, and our history under the Constitution—an interpretation that both unifies these distinct sources, so far as this is possible, and directs future adjudication. They must seek, that is, constitutional integrity. So fidelity to the Constitution's text does not exhaust constitutional interpretation, and on some occasions overall constitutional integrity might require a result that could not be justified by, and might even contradict, the best interpretation of the constitutional text considered apart from the history of its enforcement. But textual interpretation is nevertheless an essential part of any broader program of constitutional interpretation, because what those who made the Constitution actually said is always at least an important ingredient in any genuinely interpretive constitutional argument.
The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve,
83 Fordham L. Rev. 2221
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