The High Court on Constitutional Law: the 2012 Term Explanatory Power and the Modalities of Constitutional Reasoning†

In a Harvard Law Review foreword published in 2000, and entitled ‘The Document and the Doctrine’, Professor Akhil Reed Amar argued –putting it bluntly – that the Constitution of the United States of America ‘has often proved more enlightened and enlightening than the case law glossing it’.1 Professor Amar acknowledged, of course, that the Constitution has to be interpreted by the Supreme Court, but he pointed out that some modes of interpretation focus more directly on the Constitution than others. To make the point, Amar distinguished between two broad camps, which he said transcend the divide between liberals and conservatives. The first camp, the ‘documentarians’, he argued, ‘seek inspiration and discipline’ in the Constitution’s ‘specific words and word patterns, the historical experiences that birthed and rebirthed the text, and the conceptual schemas and structures organizing the document’.2 The second camp, the ‘doctrinalists’, however, ‘rarely try to wring every drop of possible meaning from constitutional text, history, and structure’; instead, ‘they typically strive to synthesize what the Supreme Court has said and done, sometimes rather loosely, in the name of the Constitution. For them, the elaborated precedent often displaces the enacted text’.3 On this admittedly broad brush analysis, it is not as if the two camps are mutually exclusive. Documentarians have to acknowledge the place of doctrine,