This chapter lays out the book’s central thesis that Supreme Court decisions changing previously prevailing interpretations of a mostly unaltered written Constitution represent the historical norm, not an exception. The chapter begins by discussing the death of Justice Antonin Scalia in February 2016 and the changes in constitutional doctrine that Scalia, who had pioneered the interpretive methodologies of originalism and textualism, had helped to bring about. The chapter also highlights changes that Scalia had urged but could not persuade a majority of his colleagues to adopt. It describes the political machinations by a Republican Senate majority in the aftermath of Scalia’s death and the similarly partisan maneuvers that resulted in the swift confirmation of a successor to the iconic liberal Justice Ruth Bader Ginsburg in 2020. Together, these developments helped produce the Court’s current supermajority of six conservative justices (out of nine), including three appointed by Donald Trump, and inaugurated a new era in constitutional history. After sketching this background, the chapter preliminarily sketches some of the book’s most important themes, including that the Supreme Court is a lawmaking institution but one that is constrained by widely shared understandings of the judicial role in ways that legislative lawmakers are not.

There is a millennia-old tradition of practical reason in the law. For the last two centuries, various determinist imaginaries have chipped away at that tradition, with one of the newest being strict textualism. This chapter contrasts the interpretive methods that Cicero put forward in his early work, De Inventione, dating to the early first century BCE, with those presented by a greatly influential 2012 book coauthored by Justice Antonin Scalia, Reading Law. The chapter contends that Reading Law offers a method for interpreting, or construing, legal texts that is replete with the hallmarks of practical reason, but the rhetoric with which Reading Law characterizes its method is thoroughly deterministic. This chapter contends that this rhetoric encourages judges to hide their reasoning behind application of simplistic (and often incorrect) “rules” for textual interpretation. The chapter illustrates the contrast in the two approaches by discussing a Texas Court of Appeals opinion – which exhibits Ciceronian practical reason – and the Texas Supreme Court’s opinion in the same case – which exhibits Scalian determinism.

This chapter focuses on additional mechanisms for channeling judicial behavior that can be regarded as products of the developments surveyed in the Chapters 4, 5, and 6. One is judicial specialization. The other is the rise of algorithmic-seeming interpretive methodologies, specifically textualism and originalism. The chapter critiques the methods and emphasizes that, despite some proponents’ efforts to portray them otherwise, neither succeeds at eliminating judgment from its central role in judging.

Despite the fact that the Vienna Convention prescribes a holistic approach to treaty interpretation, it is widely believed that the dominant interpretive approach in international law is textualism. Textualism is premised on the distinction between what is inside and what is outside the text of a treaty and assumes that it is possible to interpret a text without reference to factors that are extraneous to it. This chapter situates the preference for textualism in the intellectual history of the discipline. Building on philosopher John Searle’s work, it argues, however, that no treaty interpreter is or can be a textualist. It also introduces the concept of intertextuality and discusses the tension between the official functions of textualism and the practice of treaty interpretation.

Demystifying Treaty Interpretation doesn’t just tell you how treaties are commonly interpreted. It helps you understand the process of treaty interpretation and its outcomes. The idea that rules of treaty interpretation can guide us to the meaning of treaty provisions, in a simple and straightforward manner, is a myth to be dispelled. This book aims to capture some of the complex and nuanced processes involved in treaty interpretation. It spurs further reflection about how interpretation takes place against the background of concepts, categories, and insights from other disciplines. A useful tool for scholars, practitioners, and researchers engaging with treaty interpretation at all levels, the book aims to enhance the reader’s knowledge and mastery of the interpretive process in all its elements, with a view to making them more skilled and effective players in the game of interpretation.

The International Law Commission has described the operation of the VCLT rule of interpretation as a ‘crucible’, whereby it is the combination of the interpretative principles contained in the VCLT rule that in each case yields the meaning of treaty provisions. Taking that view as its starting point, Chapter 4 points out that different interpretative VCLT principles may be assigned different weights in different cases, depending on the drafters’ constructed intention followed by the adjudicator in each case. The underlying idea, therefore, is that all these interpretative principles must hang together well and must be combined in a way that makes sense in the context of each case. This is a sign that considerations of coherence are apposite in the operation of the VCLT rule, acting as reasons that justify the above combination in each case and ultimately account for the outcome’s persuasiveness. In the process, the chapter identifies two key coherence-related processes: framing and normative contextualisation

Drawing from different approaches and case-studies, such as the Portuguese-speaking literatures, my main argument sustains that world literature may not be conceived as such outside a comparative approach. Therefore, the comparative epistemology is what densifies world literature and makes possible its manifestation through different constellations, scales, regional approaches, and thematics.

Tort law applies values-balancing reasoning to determine relational obligations; this chapter shows that the same reasoning applies to good faith obligations and contract interpretation.

Chapter 1 examines how ordinary antebellum Americans cherished the Constitution for enshrining their “free institutions” of freedom of speech, press, and religion as well as representative democracy and local self-government. Indeed, Americans boasted that the Constitution had given them a form of government that was superior to any other in the world. At the same time that they gloried in the Constitution, mid-nineteenth-century Americans were divided by the Constitution. Slavery, more than any other issue, drove the division. Except for a tiny group of radicals, antislavery Northerners believed the Constitution was either antislavery or at least neutral towards slave labor. Northern conservatives and some moderate Southerners held that the Constitution countenanced slavery and they accepted this as the price for a constitutional union of free states and slave states. Most white Southerners believed that the Constitution was avowedly proslavery. This three-way debate carried over to the lives and intentions of the Founders and the proper way to interpret their Constitution.Southerners believed that the Constitution was avowedly pro-slavery. This three-way debate carried over to the lives and intentions of the Founders and the proper way to interpret their Constitution.