Allocative Silence: Threshold-Normativity and the Collapse of Whittington’s Distinction

[By Devansh Shrivastava, Fourth Year B.A. LL.B. (Hons.) student at NLSIU, Bengaluru]

The central anxiety of constitutional theory is the “counter-majoritarian difficulty”. In a democracy, the legitimacy of unelected judges striking down laws enacted by elected representatives is perpetually suspect. The aim then is to ensure that judges function as faithful agents of the text rather than as political actors. Keith Whittington attempts to solve this problem in Constitutional Interpretation. He proposes a strict bifurcation between “Interpretation”, the discovery of fixed textual meaning and “Construction”, the creative filling of indeterminate gaps. If the judge restricts themselves to discovery, the argument goes, they remain neutral servants of the sovereign people.

However I argue that Whittington’s attempt to insulate judicial review from politics fails because the decision to declare a constitutional text “indeterminate”, the “Threshold of Indeterminacy”, is not an epistemic fact but a normative political choice. By placing this threshold, the judge does not discover where the law ends, they decide where to silence it. The argument for this claim is developed across the paper through theoretical reconstruction and doctrinal analysis.

To that end, in this paper I aim to show that my claim is correct in the following ways. Firstly, I reconstruct Whittington’s interpretation–construction model. Secondly, I show Dworkin collapses its boundary. Thirdly, I test both against India’s Article 21 evolution. Fourthly, I develop Allocative Silence to explain judicial power-shifting. Finally, I defend abstract-intent adjudication and show Whittington’s method manufactures silence rather than discovers constitutional meaning.

The Architecture of Constraint: Whittington’s Bifurcation

To understand the failure of the model, we must first reconstruct Whittington’s architecture of constraint. Whittington acknowledges that the Constitution is not a comprehensive code. It contains gaps, ambiguities, and silences. His solution is to divide constitutional elaboration into two distinct domains.

Interpretation as Discovery: Whittington defines “Interpretation” as a process of discovery. It is the judicial act of determining the meaning that was effectively placed into the text by the ratifiers at the moment of enactment. This activity is essentially legalistic. It assumes that a “right answer” exists within the historical record and the semantic context of the enactment. When the judiciary strikes down a law, it must do so based on this discovered meaning. If the text is clear, or if historical inquiry yields a determinate original intent, the judge is bound by it.

Construction as Politics: Whittington concedes that interpretation is finite. Eventually, the historical record runs dry, or the text speaks in vague generalities. This leads to the second category: “Construction.” Construction is “essentially creative, though the foundations for the ultimate structure are taken as given”. Unlike interpretation, construction is a political activity. It involves selecting a meaning from among several permissible options based on contemporary political needs rather than historical mandates. Whittington’s central point is that courts should stick to interpretation. When interpretation runs out, when the text is indeterminate, the court should defer to the constructions derived by the political branches.

Whittington’s defence of originalism, in my understanding, relies on the following logical chain:

1. Premise 1: Democratic legitimacy requires that judges enforce only the discoverable will of the ratifiers (Interpretation).
2. Premise 2: Historical evidence can make the ratifiers’ will determinate up to a point; beyond that point, the text is indeterminate.
3. Premise 3: When the text is indeterminate, democratic authority shifts from the Court (Law) to political actors (Construction).
4. Conclusion: Therefore, legitimate judicial review requires a strict separation between discoverable meaning (Interpretation) and creative gap-filling (Construction).

The Implication:

The implication is that the “Construction Zone” acts as a safety valve. By admitting that text runs out, Whittington attempts to save the objectivity of Interpretation. He effectively argues: “Judges are not political because whenever the law becomes political, the judges stop.”

A Permeable Boundary: The Dworkinian Challenge

The stability of Whittington’s model depends entirely on the stability of the boundary between Interpretation and Construction. Whittington assumes this boundary is epistemic, that we interpret until we “run out: of facts.” However, Ronald Dworkin’s analysis in A Matter of Principle reveals that this boundary is normative. The text does not “run out” of meaning; the judge chooses to stop reading.

Dworkin dismantles the “neutrality” of originalism through his analysis of “intention”. He observes that the “Framers’ intention” is not a brute historical fact waiting to be discovered.  It is a complex psychological state that exists at different levels of abstraction. He distinguishes between two kinds of intent. Abstract Intent is the broad moral principle a lawgiver intends to enact. For example, a ban on “cruel and unusual punishment” evinces an abstract intent to forbid inhuman treatment, whatever that may be. Concrete Intent, on the other hand, is the specific application the lawgiver expected the principle to have. For example, the expectation that capital punishment is not cruel.

Reconstruction of the Dworkinian Critique:

1. Premise 1: A single constitutional provision embodies both an abstract intent and a concrete intent.
2. Premise 2: These two intentions often conflict. The authors may have enacted a broad principle of equality while simultaneously holding segregationist views that violate that principle.
3. Premise 3: Historical fact cannot resolve this conflict because the framers held both intentions simultaneously. There is no historical fact that says the concrete expectation overrides the abstract text.
4. Conclusion: The decision to prioritize one level of intent over the other is a substantive decision of political morality, not a historical discovery.

Whittington’s failure lies in his assumption that “Interpretation” defaults to Concrete Intent.  He argues that we must defer to Construction when Interpretation is exhausted. However, “exhaustion” depends entirely on what we count as meaning.

If we count only Concrete Intent, the text runs out quickly. The framers did not have concrete expectations about digital privacy or genetic engineering. Therefore, Interpretation ends, and the legislature gains power.

If we count Abstract Intent, the text applies to new circumstances. The principle of “Liberty” or “Search and Seizure” covers new technologies. Therefore, Interpretation continues, and the judiciary retains power.

Therefore, the judge does not “find” the Construction zone; instead, they choose to enter it by discarding Abstract Intent. This choice is pre-interpretive. A judge must construct a theory of relevance, deciding that “what the framers expected” matters more than “what the framers wrote”, before interpretation begins. This confirms Dworkin’s claim: the “original intention” is not a fact waiting to be discovered, but a concept waiting to be invented. Whittington attempts to wall off politics from law, but the bricks he uses to build the wall are made of political choices.

Testing the Framework on Article 21 Jurisprudence

To demonstrate that Whittington’s method is a mechanism of silence rather than discovery, we must test it against a constitutional contradiction. To that end, I will examine the Indian Supreme Court’s evolution on Article 21 which states:

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The Constituent Assembly of India explicitly debated including the American phrase “Due Process of Law.” They rejected “Due Process” and chose “Procedure Established by Law” specifically to prevent judges from reviewing the substantive fairness of legislation.

In the case of A.K. Gopalan v. State of Madras (1950), the Indian Supreme Court adopted a method akin to Whittington’s.

1. The Step: The judge seeks the discoverable meaning of Article 21.
2. The Evidence: The drafting history reveals a specific rejection of substantive review. The concrete intent is clear, the legislature is supreme regarding procedure.
3. The Result: The Court held that “Law” simply meant “enacted statute.” Even if a law was arbitrary or oppressive, if it was validly enacted, the procedure was established.
4. The Implication: The Whittingtonian approach forced the Court to ignore the semantic meaning of the word “Law” (which implies non-arbitrariness) and enforce an unfair procedure. The Court found the text “determinate” based on legislative history, and thus refused to construct a broader right.

In Maneka Gandhi v. Union of India (1978), the Supreme Court reversed this logic, adopting a Dworkinian “Forum of Principle” approach.

1. The Step: The judge acknowledges the framers expected limited review (Concrete Intent) but enacted the word “Law” (Abstract Intent).
2. The Reasoning: The concept of “Law” is not merely “statute.” Law, as a concept of political integrity, cannot be arbitrary. A procedure that is fanciful, oppressive, or arbitrary is not “Law” at all. Therefore, “procedure established by law” must mean “fair, just, and reasonable procedure”.
3. The Result: The Court read the requirements of Due Process back into Article 21, effectively overriding the concrete expectations of the drafters to save the abstract meaning of the text.
4. The Implication: By prioritizing Abstract Intent, the court redeems the text actually ratified, even if it contradicts the authors’ private expectations.

The contrast between Gopalan and Maneka Gandhi reveals the flaw in Whittington’s model. Under Whittington’s strict dichotomy, Maneka Gandhi is illegitimate “Unconstitutional Creation”. Yet, Gopalan resulted in a judiciary powerless to stop tyranny because it was enslaved to a historical footnote. Whittington’s method requires the judge to treat the text as a husk for the drafting committee’s diary. Dworkin’s method treats the text as the law. The difference is not one of interpretive technique, but of what counts as law.

A Conceptual Model: Allocative Silence

Once indeterminacy is understood as a normative allocation of authority rather than an epistemic limit, Whittington’s distinction collapses. The Indian constitutional experience therefore requires an alternative conceptual account. I propose the concept of Allocative Silence.

First, we must recognize that determining the “Threshold of Indeterminacy”, the point where a judge claims the text provides no answer, is a normative act of power. Whittington claims the text is silent when history is silent. But the text is often speaking loudly in abstract moral terms (“Law,” “Liberty,” “Equality”). The decision to ignore this loud abstract voice in favour of the silence of history is a Threshold Judgment.

Allocative Silence is the use of this threshold to mute the text in order to shift power.

1. The Mechanism: The judge using Whittington’s method encounters broad text. They fear judicial discretion. They choose to limit meaning to Concrete Intent. This choice renders the broad text “indeterminate” or “silent” on modern issues.
2. The Effect: This silence forces the issue into the Construction zone, which Whittington assigns to the Legislature.
3. The Implication: Whittington claims the Constitution is silent on substantive fairness in Article 21. But the Constitution is not silent; the method silenced it. Whittington allocates constitutional authority away from the judiciary not because the text is empty, but because he prefers the legislature.

This matters for democratic theory because control over constitutional meaning is itself a form of political power. Whittington argues that “Construction” protects popular sovereignty by ensuring elected representatives decide political questions. But “Allocative Silence” suggests the opposite. When the judiciary uses history to silence the text, it prioritises the historical expectations of the Constituent Assembly over the ongoing application of constitutional rights to contemporary citizens. In Maneka Gandhi, if the Court had used Whittington’s method, it would have allocated the power to detain citizens arbitrarily to the Executive, justified by the silence of the text. By rejecting Allocative Silence, the Court allocated power to the principles of the Constitution.

Objection and Reply

A strong defender of Whittington would object that Dworkin’s reliance on Abstract Intent destroys the fixed nature of the Constitution as a determinate set of meanings fixed at enactment.

1. The Claim: If a judge can ignore the specific rejection of “Due Process” by the Indian Constituent Assembly, then the Constitution is no longer a binding historical document.
2. The Fear: The “text” becomes an infinite resource for judicial invention. The judge becomes a “Platonic Guardian,” imposing their own morality under the guise of  “Law”.
3. The Conclusion: Therefore, only Concrete Intent provides a neutral constraint.

This objection rests on a category error regarding what constitutes “The Constitution.” By “category error,” I mean a philosophical mistake in classification, whereby a normative judgment is misidentified as an epistemic constraint.

1. The Definition: The Constitution is the text that was ratified, not the intentions that were discarded.
2. The Act: The Constituent Assembly rejected “Due Process” in their debates, but they enacted the word “Law” in the statute.
3. The Failure: If they wanted to strictly ban substantive review, they could have written “No judicial review of fairness.” They did not. They used a word, “Law”, that carries significant semantic weight within rule-of-law traditions, including a presumption against arbitrariness.
4. The Reversal: To enforce the concrete rejection over the abstract text is to enforce a law that was never written. It gives binding legal force to the hallway conversations of drafters while ignoring the public statute.
5. The Conclusion: Dworkin’s approach is more faithful to the written Constitution. because the binding source of constitutional authority is the enacted public text, not the framers’ discarded or unenacted expectations. Whittington’s approach upholds the private thoughts of dead men; Dworkin upholds the public law they created. The objection collapses because it mistakes fidelity to history for fidelity to law by treating background expectations as legally authoritative when only the enacted text has binding force.

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Books

1. Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (University Press of Kansas 1999)
2. Ronald Dworkin, A Matter of Principle (Harvard University Press 1985) 39

Articles

1. Ronald Dworkin, ‘The Forum of Principle’ (1981) 56 NYU Law Review 469

Journal Articles

1. Rahul Matthan, ‘Why did the framers of the Indian Constitution not explicitly include the right to privacy?’ (18 July 2018) Scroll.in <https://scroll.in/article/886850/why-did-the-framers-of-the-indian-constitution-not-explicitly-include-the-right-to-privacy> accessed 9 February 2026