O'Rourke on Vague Constitutional Provisions

Anthony O'Rourke (University at Buffalo Law School) has posted Textual Vagueness and Institutional Divergence in Constitutional Decisionmaking (William & Mary Bill of Rights, Forthcoming) on SSRN. Here is the abstract:

Constitutional scholars often assume that vague textual provisions cannot meaningfully constrain constitutional decisionmaking. Recent scholarship at the intersection of legal philosophy and philosophy of language provides the conceptual tools necessary to challenge that assumption. Building on that scholarship, this Article argues that semantically vague constitutional provisions shape the decisionmaking of both courts and legislatures in ways that heretofore have been ignored.

The Article identifies a systematic divergence between how courts and legislatures implement vague constitutional provisions. Whereas courts often implement such provisions by creating multi-factor standards, legislatures tend to do so by enacting relatively precise rules.

This divergence, I argue, results from how certain linguistic properties of vague expressions gain or lose salience depending on the institutional contexts in which the expressions are being applied. Courts and legislatures may agree (at least implicitly) that a text is vague, but each institution may perceive the text as exhibiting a different kind of vagueness. This clash in perceptions will, in turn, lead courts and legislatures to diverge in their strategies for implementing the vague text. Thus, vague constitutional texts can significantly influence both judicial and legislative constitutional decisionmaking. This influence has gone unnoticed, however, because it works on courts and legislatures in starkly different ways.