Beck’s The Parts We Skip: A Taxonomy of Constitutional Irrelevancy

From Peter Beck, The Parts We Skip: A Taxonomy of Constitutional Irrelevancy, 34 Constitutional Commentary 223 (2019):

Almost every clause that lacks legal force today can fit into one of four categories. The first is the category the House reading tried to identify: provisions that have been amended—repealed or revised by later additions to the Constitution. The second did not make the House’s cut-list, but may have as little legal force as amended items: lapsed clauses—clauses that have sunset through time or changed circumstances. The third is borrowed from literary theory, paratext, all the bits and pieces of text and style in and around the main text, which frame its reading or interpretation (introductions, titles, dates, formatting, etc.). The fourth category contains all the clauses that have been minimized, typically by judges but sometimes by other constitutional actors (the President, Congress)—clauses that might have held legal force (and might yet again) but for their narrow readings. These categories—amended, lapsed, paratext, and minimized—should be comprehensive. Scholars and citizens will continue to argue over which phrases fit into which categories, but all the clauses that might be inoperative should fit into at least one. Furthermore, like Philip Bobbitt’s typology of constitutional argument, this typology of constitutional irrelevancy serves more than just an organizational function. Each kind of irrelevancy is different—each has different implications for how the clauses should be studied, what force (interpretive, if not legal) they should have, and what might happen to them in the future.

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