The Constitutional Ratchet Effect

Abstract

Christopher Serkin and Nelson Tebbe take an inductive and empirical approach to constitutional interpretation and elaboration. They ask whether attributes of the Constitution justify interpretive exceptionalism--that is, interpreting and elaborating the Constitution differently than other forms of law. They conclude that the characteristics of the Constitution they consider do not justify interpretive exceptionalism-- at most, the "Constitution's principal distinguishing feature may be the fact that people think the Constitution is special--that it has a kind of mythological status." As Serkin and Tebbe see it, the extent to which individuals view the Constitution or constitutional law as special is best explained with reference to a broad cultural gloss, a shared ascription of a particular kind of value to the Constitution rather than any particular feature of our existing Constitution or constitutional law.150 As a result, interpretive exceptionalism appears to be founded on accepting a mythology of the Constitution's and constitutional law's special character. That thought in turn prompts Serkin and Tebbe to worry about the ways in which this cultural identification and valorization of the Constitution poses distinctive risks.