Interpretive Fictions in Constitutional Law

One issue that I’ve been thinking about lately — in part because of a presentation that I gave at a conference in October — is the use of legal fictions in constitutional interpretation.  By a fiction, I mean something that everybody knows is not true but says anyway for some jurisprudential purpose.  Many famous scholars (e.g., Bentham, Maine, and Fuller) have talked about the use and abuse of fictions at common law, but there is comparatively little discussion of those issues in constitutional law.  Let’s consider some candidates:

1.  We live under a codified Constitution.

Students are taught that we are different from, say, Great Britain because we have a written constitution and they do not.  We really mean codified rather than written, of course, in that the UK has lots of written texts that define its constitutional practices — they just aren’t in one place.  But does anybody really think that the “Constitution” actually represents constitutional law in practice.   Think of the judicial precedents, customs, landmark statutes, and other authorities that have displaced large parts of the text.  Why, then, do we continue to insist that we have a codified Constitution?

2.  The Commerce Clause is the basis for broad federal power

We say that antidiscrimination statutes or ones creating federal crimes for things like drug possession are about commerce.  Does anybody really believe that, or do they just say that because the prevailing doctrinal formula requires it?  Why do we keep saying that, especially when the other textual powers listed in Article One, Section Eight are rendered superfluous by the interpretation currently given to the Commerce Clause?

I’m trying to come up with other examples.  What do you think?

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7 Responses

  1. Anon says:

    Ex Parte Young to get around the Eleventh Amendment

  2. ..anon says:

    does in rem jurisdiction (“the thing committed the crime”) implicate constitutional law?

  3. Perhaps one of the greatest legal fictions we have is the modern selective incorporation doctrine through the due process clause.

    Another fiction is treating a corporation as a person.

    I recently wrote a post on constitutional legal fictions that may be useful

    Also Eugene Volokh wrote an interesting post on believing in legal fictions

  4. My favorite such fiction is that employees “agree” to the “contract” of at-will employment. While predominantly a common-law concept, it gets play also when considering the constitutional rights of public employees.

  5. Alan says:

    The guilty-property fiction. (Not to criticize this particular fiction.)

  6. “Why, then, do we continue to insist that we have a codified Constitution?”

    Because we do. We’re just violating it. But that doesn’t mean we don’t have one.

    How about the “enrolled bill” rule?

  7. Phil Neujahr says:

    Seems like they bring something unique to the table that most texts can’t…