Is There a Constitution in This Text? - NYTimes.com - 0 views
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“The written Constitution cannot work as intended without something outside of it — America’s unwritten Constitution — to fill its gaps and stabilize its meaning.” The meaning of the “inside” — the text’s literal words—cannot be specified independently of the “outside” — the set of assumptions and values that hangs over the enterprise and gives the deeds and words that occur within it shape and point. The text may not enumerate those assumptions and values, but, explains Amar, they “go without saying,” and because they go without saying the words that are said receive their meaning from them. “The unwritten Constitution … helps make sense of the text,” a sense that would not be available if an interpreter were confined to a “clause-bound literalism.”
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Explicitness, it turns out, is not a possible human achievement, which is no big deal because communication and understanding do not require it.What they do require is a grasp of the enterprise within which a particular utterance or writing is encountered.
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The unwritten principles that preside over constitutional interpretation should not be thought of as items in a list; they are, rather, part and parcel of a general project — the implementation of American-style democracy — that is not defined and limited by the implications and considerations it gives rise to.
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