Reading the Constitution as Spoken
Jed Rubenfeld

Democracy consists ideally of government by the will or "voice" of the people at a particular time. According to the author, this conception of democracy, which he calls speech-modeled, animates most contemporary constitutional thought and has the following consequences. It puts democracy at war with constitutionalism. It enmeshes judicial review in an inescapable counter-majoritarian difficulty. And it produces the three main schools of contemporary constitutional interpretation: originalism, which insists that constitutional law should adhere to what the Founders said or would have said; processualism, which maintains that constitutional law should do no more than protect the process by which today's voters have their say; and the fundamental-values approach, which holds that judges themselves should speak for the people's deepest, evolving values. All three schools share a common aim: to read the Constitution as a vehicle for popular voice; to read the Constitution as spoken. Reading the Constitution as written, Professor Rubenfeld argues, requires a conception of self-government as a project of making, living under, and living up to commitments whether to institutions or to principles over time. This writing-modeled conception puts constitutionalism at the heart of democracy. It solves the counter-majoritarian difficulty. And it produces a different interpretive method, which Professor Rubenfeld calls commitmentarian, and which, he argues, makes far better sense of our actual constitutional history and practice than do any of the currently dominant approaches.

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