Original Explication: A Democratic Model for the Interpretation of Modern State Constitutions

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Most discussions about methods of constitutional interpretation in the United States are limited to the federal Constitution and mostly center on that document’s open-ended clauses, its secret drafting history, the unreliability of the records of its creation, and its seemingly anachronistic nature, among other characteristics that seem unique to it. This federal-centric approach has overlooked the important differences between the U.S. Constitution and many state constitutions adopted in more recent times.

Unlike their federal counterpart, several state constitutions contain substantive policy provisions and were drafted through highly democratic, public, participatory, and popular creation processes. As a result, a different interpretive methodology is needed­, one that takes into account these characteristics. Original explication—which has been successfully used in countries like Bolivia and U.S. jurisdictions like Puerto Rico—treats official adoption history, particularly the outwardly-uttered expressions of the framers of the democratically-elected drafting body during public deliberations, as authoritative, both in terms of the constitutional text’s communicative meaning and its normative content.

This model differs from other originalist methodologies in two important aspects. First, it requires the previous existence of a vital normative factor: a highly democratic and public process of constitutional creation. In other words, it is context-dependent. Second, it focuses on the factors that make the model normatively compelling: the public nature of the drafting process. For example, private and informal intent is disregarded while public and formal utterances during the drafting process are treated as authoritative.

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Western New England Law Review

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