Toward a Constructive Constitutional History

This chapter explores the lessons for the theory of constitutional adjudication that emerge from this book’s account of the meaning of cases and controversies in Article III. Proposing a constructive or synthetic approach to constitutional interpretation, the chapter urges the U.S. Supreme Court to substitute a litigable interest standard for the modern case-or-controversy rule. Such an approach would enable the Court to uphold the right of individuals to pursue uncontested claims as authorized by Congress and to continue to insist on adversary presentations in the disputes that parties present to federal court for resolution. The constructive approach advocated here differs from the position sometimes advanced by originalists in that it seeks to accommodate the lessons of the eighteenth, nineteenth, and twentieth centuries in formulating a measure of the limits of judicial power.