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2 - Soundings and Silences

from Part I - Conceptualising the Invisible Constitution

Published online by Cambridge University Press:  02 November 2018

Rosalind Dixon
Affiliation:
University of New South Wales, Sydney
Adrienne Stone
Affiliation:
University of Melbourne
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Summary

In studying existing constitutions or in assisting with drafting a new one, it is impossible not to notice that formative decisions about what to say and what not to say as a constitution is being created bear heavily on later decisions about how to interpret what a constitution says or fails to say, including whether to construe any given silence or gap only as a source of insight or as a kind of performative utterance. Among the features of the United States Constitution that have been crucial to its success has been the widespread recognition of its connected structure that, despite its gaps—some deliberate and others unintended—invites understanding as a coherent, if at times internally inconsistent, whole. Constitutional silences, like silences of other kinds, are everywhere and come in many varieties. There are as many reasons to be silent as there are to speak and as many ways to hear meaning in the sounds of silence as there are to attribute meaning to statements. The first section of this essay distinguishes silences that open a constitutional conversation by leaving options on the table from those that shut conversation down by limiting the options to one. The second section separates silences that bear on the structure created by the Constitution from those that bear on the individual rights the Constitution protects against government infringement. The third section turns to the special case of silences in the Constitution’s rules of interpretation and asks whether the Supreme Court should be silent on a particular constitutional matter or should address it squarely, recognizing that whatever an authoritative interpreter says about what the Constitution itself says or omits can be evaluated only against the background alternative of somehow contriving to remain silent.
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Publisher: Cambridge University Press
Print publication year: 2018

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