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Sunday, August 20, 2006

Solum on "It Takes a Theory"

Larry Solum's weekend "Legal Theory Lexicon" takes on the "it takes a theory to beat a theory" adage, with an unusual (for him) but delightful touch of the snarky.

In particular, I like the Daniel Farber quote on the problem of "physics envy" in the social sciences.  It took Einstein's theory of general relativity to beat Newton's gravitation theory, and it did so by predicting curvature of light, testable during an eclipse, that Newton's theory could not explain.  As Farber points out, rational choice theorists roll out "it takes a theory to beat a theory" against the behavioral economists, with both sides assuming implicitly that (a) the goal of social science is to state a unified predictive theory of human behavior, and (b) that it is possible to state a unified predictive theory of human behavior.

I'll add two brief comments,  if I think about it long enough, the inspiration for which I must lay at the feet of Professor Solum and his great blog.  First, a thoroughly enjoyable screed, if you are into this kind of epistemological debate, is The Flight from Reality in the Human Sciences by Ian Shapiro (Yale, Political Science), who argues, primarily in connection with the rational choicers, that maintaining the integrity of expansive social science theory has become the tail that wags the dog of social science research.   Second, to my mind, the real problem with the application of "it takes a theory to beat a theory" in connection with divining (note my deliberate word choice) a unified predictive theory of human behavior is Hume's dictum in A Treatise on Human Nature about conflating the descriptive with the normative:

[T]he author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not.

Posted by Jeff Lipshaw on August 20, 2006 at 05:27 PM in Legal Theory, Lipshaw | Permalink

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Comments

Jeff, you're a blogging machine! On my last guest stint at Prawfs, I wasn't nearly as prolific as you have been. I did, however, offer some thoughts on the "Theory v. Theory" issue. Here's the post and associated comments, if anyone's interested:
http://prawfsblawg.blogs.com/prawfsblawg/2006/03/theory_v_theory.html

Posted by: Adam Kolber | Aug 20, 2006 5:48:26 PM

You are absolutely right. Looking back, I was flogging the Shapiro book there as well as a comment to your post. I don't remember as well as I once did - we AARP members call these senior moments.

Posted by: Jeff Lipshaw | Aug 20, 2006 6:14:31 PM

Fundamentally, I don't see why it takes a theory to beat a theory anyway. If I announce a theory that claims that the only way to explain the tides in Lake Michigan is if we assume a moon with a mass consistent with being made of green cheese, proving that the moon is not made of green cheese would beat it. You don't need to assert a Moon is Made of Rock theory to refute the Moon is Made of Green Cheese theory.

Posted by: Paul Gowder | Aug 21, 2006 1:06:33 PM

None of the countermoves offered really seem to amount to much, in my view. They might suffice to provide a sort of rhetorical ellipsis to prevent one from looking entirely bereft of a response, but in the end, it's rather like trying to prove that the world is flat. The long and short of it is, as Larry observes, if you're a judge, "[y]ou can't just stop interpreting the constitution if you reject originalism; it takes some other interpretive practice to substitute for originalism." Ergo, unless you take the view that one can (or, angels and ministers of grace defend us, should) interpret the Constitution without a theory, it really does take a theory to beat a theory. You have to offer some theory other than originalism, and frankly, if Justice Breyer's book is anything to go by, the reason nonoriginalists hate the "it takes a theory" move is because they have still yet to come up with a theory. As I suggested here, "this whole business [of theory v. theory] is starting to seem like the quest to write the Great American Novel: you all keep saying that it's possible (easy, even: 'well, if all it takes is a theory,' one might scoff), but at some point, someone has to stop talking about it and actually sit down and come up with one."

That is, it seems to me that the only cogent escape for non-originalists from the "it takes a theory" treadmill is to deny that one should seek an overarching interpretative methodology - and since that is a de facto rejection of judging by application of neutral principles, it isn't a very attractive defense.

Posted by: Simon | Aug 21, 2006 1:20:22 PM

Simon: why on earth is denying that one should seek an overarching interpretative methodology a de facto rejection of judging by application of neutral principles?

Posted by: Paul Gowder | Aug 21, 2006 1:35:09 PM

Paul,
Because one either has some overarching theory of how to construe an authoritative text, a set of interpretative principles which are applied equally whether you're interpreting the ADA or Article II, or you're just making it up as you go along. A interpretative principal is not neutral unless it is formulated independently of the text to which it is to be applied - by definition, if it is tailored to a particular provision, it is contextual rather than neutral.

Now, to be sure, I'm not saying that you have to have a rule that a particular word means the same thing whether you're interpreting the Fourteenth Amendment or Title III, but what I am saying is that if you have an interpretative rule that says you determine that you look only to the dictionary and never to structure for the former, you can't then declare structure to trump dictionary definition in the latter. You have to have a theory of how a text should be construed which is consistently and neutrally applied, whatever the text is. You have to have a criterion, but just as importantly, in my view, you have to have a criterion.

Posted by: Simon | Aug 21, 2006 1:51:23 PM

Do physical scientists debate the question whether it takes a theory to beat a theory? I know I will be hopelessly out of date on this, but my understanding of the philosophy of science is that it takes empirical falsification of the predictive capability to beat a hypothesis. That explains the green cheese problem.

But a theory is something more than a hypothesis, e.g. that the moon is made of green cheese (I'm flipping through my copy of Carl Hempel's Philosophy of Natural Science as I write this). Hempel says, for example, a good theory "offers a systematically unified account of quite diverse phenomena." So while falsification could beat a theory by showing that it doesn't predict on a systematically unified basis, it seems to me that a theory could beat a theory by being a more complete or even more systemic explanation. Isn't that the story of the search to unify the classical physics of relativity with quantum theory?

(Aside: does even Einsteinian physics beat Newtonian physics? I'm no physicist (that's clear) but my understanding is that the value of Einstein's relativity is at the far extremes, and that Newtonian physics still works just fine (and more simply) to predict outside of those conditions.)

Now having said that, I'm still struggling. I see how somebody who thinks she has a systematically unified account of quite diverse phenomena, like the full span of constitutional interpretation, and believes such a theory is possible and necessary for descriptive understanding, would say, if the game is so defined, you can't beat me without another theory. But I still don't see how this debate as it relates to constitutional interpretation is anything but the conflation of the "is" and the "ought." Each side in a normative debate is trying to prove that its side is the one applying neutral principles, and most likely, neither are.

Finally, I have not followed this as a constitutional issue at all (I'm really just a corporate guy), but I did read Justice Scalia's review of Steven D. Smith's Law's Quandary in First Things. Smith's quandary is why we speak of law in language that suggests it is somehow there transcendentally to be discovered, as in a neutral principle, but are at the same time legal realists believing there are no neutral principles. Prof. Smith talks at the end about a hypothetical Author, and for this Justice Scalia takes him to task, suggesting that we ought to stop pussyfooting around and get right to the heart of it: there is an Author and the Author is God. Regardless how I otherwise feel about it, at that point I don't see how the use of a scientific term like "theory" is anything but absurd.

Posted by: Jeff Lipshaw | Aug 21, 2006 2:09:45 PM

Wait a second, you're saying that contextual is the opposite of neutral? I thought the sense of "neutral" you were using was in opposition to, say, "consciously inserting the court's policy preferences into the law."

If by "neutral," you mean what you stated above, then why is neutrality a virtue?

Posted by: Paul Gowder | Aug 21, 2006 2:21:21 PM

If I announce a theory that claims that the only way to explain the tides in Lake Michigan is if we assume a moon with a mass consistent with being made of green cheese, proving that the moon is not made of green cheese would beat it.

Proving that the moon is not made of green cheese does not actually beat the theory; you are trying to negate the antecedent of a hypothetical, which is illogical. Because the moon is not made of green cheese, there is no way to verify or falisfy the theory that only if the moon is made of green cheese can we explain the tides in Lake Michigan. You might say that is nutty, because the moon is not made of green cheese and we can explain the tides in Lake Michigan, but the point is that we can never know whether or not we have fully explained the tides in Lake Michigan because we have never observed the tides in Lake Michigan in a world where the moon is made of green cheese. So, yes, you would actually need a theory to explain why observation in the counterfactual world isn't necessary to justify your epistemic claims.

Posted by: Pope Benedict | Aug 21, 2006 2:24:39 PM

Jeff: My philosophy of science is a bit weak too. I'm not aware of any real distinction between a "theory" and a "hypothesis" except that the former has had the benefit of enough failed attempts to falsify it that someone starts calling it a theory.

I *think* a theory can beat a theory in the physical sciences. Einstein's physics did (until a physicist shows up and tells us otherwise) beat Newton's. But showing a theory is sufficient to beat a theory doesn't show that it's necessary. Wouldn't falsifying data beat a theory too though? If we observed (somehow) something moving faster than the speed of light, wouldn't that fry special relativity totally notwithstanding the absence of a Really Special Relativity to take its place?

Posted by: Paul Gowder | Aug 21, 2006 2:26:00 PM

Pope: You're right, but only because I expressed the theory in a horrible way.

Let me rephrase my theory to avoid your objection. I observe the tides in Lake Michigan, do some calculations, and conclude that Moon as Green Cheese can explain these tides. I have established something that we might call the Green Cheese Hypothesis. I do some more testing. I calculate what the tides would have to be in the Pacific if the moon was made of green cheese. I then pop over to the Pacific and measure. It's consistent. So I go over to the Indian ocean. Ditto. At a certain point, I have something that we can call the Green Cheese Theory. Don't I?

Then someone shoots a bunch of radiation at the moon. That radiation is reflected in such a fashion that whatever else the moon is made out of, it's not made out of green cheese. Have they beaten the Green Cheese theory?

Posted by: Paul Gowder | Aug 21, 2006 2:32:30 PM

If we observed (somehow) something moving faster than the speed of light, wouldn't that fry special relativity totally notwithstanding the absence of a Really Special Relativity to take its place?

Observing something moving faster than the speed of light is "observation in the counterfacual world" -- and theorizing that as the antecedent to your hypothetical is ... oh, nevermind.

Posted by: Pope Benedict | Aug 21, 2006 2:37:21 PM

Let me rephrase my theory to avoid your objection.

The point is you're claiming that you don't need theory -- and that claim is theoretical, as you just conceded. Your position is self-refuting.

Posted by: Pope Benedict | Aug 21, 2006 2:41:53 PM

Pope: Eh? The theory I was rephrasing was my example of the Green Cheese. I wasn't conceding some theory to which I actually held.

I mean, ok, yes, in some super-broad sense the claim "I don't need a theory to refute a theory" constitutes a theory, perhaps in philosophy of science or something. But the claim "you need a theory to beat a theory" isn't usually made at that level of generality. The claim is usually raised when theory A, which is meant to explain some feature of the world (economic reasoning) or compel some normative result (originalism), which we'll call phenomenon X, is being attacked on the ground that it fails to explain something within its claimed scope, or is internally inconsistent, or leads to ridiculous results. When the proponents of theory A say "you need a theory to beat a theory," they don't mean "you need a theory (of what it takes to beat a theory) to beat a theory of phenomenon X." It means "you need a theory of phenomenon X to beat a theory of phenomenon X." And this is the claim to which I object.

Posted by: Paul Gowder | Aug 21, 2006 2:50:54 PM

I observe the tides in Lake Michigan, do some calculations, and conclude that Moon as Green Cheese can explain these tides...radiation is reflected in such a fashion that whatever else the moon is made out of, it's not made out of green cheese. Have they beaten the Green Cheese theory?

No. Your theory is that if the moon were made of green cheese, it would produce the tide formations one observes at Lake Michigan. It might be true that if the moon were made of green cheese, it would produce the tide formations one observes at Lake Michigan. We have no way of verifying or falsifying what the world would be like if the moon were made of green cheese, because the moon isn't made of green cheese. Some might say your theory is metaphysical as opposed to scientific, but that doesn't falsify it -- the fact that it can't be falsified is what makes it non-scientific!

Posted by: Pope Benedict | Aug 21, 2006 2:53:25 PM

I mean, ok, yes, in some super-broad sense the claim "I don't need a theory to refute a theory" constitutes a theory, perhaps in philosophy of science or something.

This is the point. And it is not "super-broad" at all. It renders your position incoherent.

Posted by: Pope Benedict | Aug 21, 2006 2:55:51 PM

When the proponents of theory A say "you need a theory to beat a theory," they don't mean "you need a theory (of what it takes to beat a theory) to beat a theory of phenomenon X."

Ah, so now we see your position is nothing but semantics, which still doesn't help you, because it seems you need a theory of ordinary language to rationally reconstruct your theory's incoherence...

Posted by: Pope Benedict | Aug 21, 2006 2:58:47 PM

Pope, we're arguing in circles here. Accept the theory I'm proposing on the terms I am offering. The theory is not "if the moon were made of green cheese, it would produce the tide formations one observes at Lake Michigan." The theory is "the moon is made of green cheese." The observation of lake michigan's tide formations is merely the original event which I thought to explain with the hypothesis/theory of the moon's being made of green cheese.

Accept that there is a theory -- that exists for whatever reason -- that suggests that the moon is made of green cheese. Accept that observations have been made which are consistent with the moon being made of green cheese. Then accept that an observation is subsequently made that is inconsistent with the moon being made of green cheese. (In the above, the radiation-shooting.) That would appear to falsify it. Wouldn't it?


We have no way of verifying or falsifying what the world would be like if the moon were made of green cheese, because the moon isn't made of green cheese. Some might say your theory is metaphysical as opposed to scientific, but that doesn't falsify it -- the fact that it can't be falsified is what makes it non-scientific!

Are you pushing some kind of radical skeptic thing here? On that logic, no theory is scientific. We have no way of verifying or falsifying what the world would be like if things fell away from massive objects instead of toward them, because things fall toward massive objects, therefore, gravity is nonscientific?

Posted by: Paul Gowder | Aug 21, 2006 2:59:16 PM

so now we see your position is nothing but semantics

Pope, do you take the position that there's no difference between a theory about what it takes to beat a theory, and a theory about economics or constitutional interpretation, or the properties of the moon?

Posted by: Paul Gowder | Aug 21, 2006 3:02:16 PM

Are you pushing some kind of radical skeptic thing here?

No, just radical skepticism of your theory that you don't need a theory to have a theory that you don't need a theory.

Accept that there is a theory -- that exists for whatever reason -- that suggests that the moon is made of green cheese. ... That would appear to falsify it. Wouldn't it?

I agree that if one presumes one's conclusion, then one's conclusion is presumptively true. But one hasn't proven anything, one has just presumed one's conclusion. It's called begging the question. I believe Hume had some famous writing on that.

Posted by: Pope Benedict | Aug 21, 2006 3:03:47 PM

Pope, do you take the position that

The only position I have taken is that your position is fallacious.

Posted by: Pope Benedict | Aug 21, 2006 3:04:47 PM

Pope, we're arguing in circles here.

No, your logic is circular.

Posted by: Pope Benedict | Aug 21, 2006 3:06:21 PM

Ok, Pope, lets break this down.

1. Do you agree that it is possible to hold to a theory, designed to explain something (for example, explaining an observed physical fact, like the behavior of light, with reference to unobserved physical facts, like the presence of black holes) in the real world, that is false?

If yes, then:

2. Do you agree that a false theory as described in (1) can be "scientific," under whatever definition of "scientific" you accept (seems Popperian right now, which is fine with me)?

If yes, then:

3. Do you agree that such a theory could be falsified, in principle? (Indeed, that this is the condition for calling the theory "scientific?")

If yes, then:

4. Do you agree that the in principle falsification of such a theory would occur by the observation of data inconsistent with that theory?

If yes (and this may be where we diverge), then:

5(a). How do you possibly hold to your expressed position that observation can't defeat a false theory because we can never wholly know what the world would look like if it were true? You have to reject #2 and deny that any false theory can be called "scientific," at least in Popperian terms. And that's clearly absurd. And you lose.

If no to #4, then:

5(b). If falsification of a false scientific theory doesn't occur by the observation of contrary data, how does falsification of a false scientific theory occur? Again, you seem to have no choice but to deny that incorrect theories can be falsifiable, hence scientific. And, again, that's clearly absurd. And you lose.

Posted by: Paul Gowder | Aug 21, 2006 3:13:52 PM

(4 above is the denial of your position, incidentally. I'd love to hear what you think a theory can be falsified by, if not by observation.)

Posted by: Paul Gowder | Aug 21, 2006 3:16:55 PM

In fact, just to make the comment above follow completely by deduction, I'm going to offer you a 3.5:

3.5. Do you agree that, for those theories which are falsifiable, the thing that makes them falsifiable is that it is possible in principle to observe things which are contrary to them?

Now 4 follows deductively from 1-3.5.

Posted by: Paul Gowder | Aug 21, 2006 3:22:16 PM

Again, you seem to have no choice but to deny that incorrect theories can be falsifiable, hence scientific. And, again, that's clearly absurd. And you lose.

This is a bizarre distortion of the statement that "metaphysical theories are non-scientific theories". What is "clearly absurd" is that you have confabulated a straw-man to knock down because you think this is a nerd competition. Get a woman.

Posted by: Pope Benedict | Aug 21, 2006 3:23:35 PM

Pope: "We have no way of verifying or falsifying what the world would be like if the moon were made of green cheese, because the moon isn't made of green cheese."

How is that anything other than a denial that false theories can be falsifiable?

Posted by: Paul Gowder | Aug 21, 2006 3:25:33 PM

Believer: But you can't deny the existence of God, because God exists.
Agnostic: I am not denying the existence of God. How do you know that God exists?
Believer: God exists because God exists.
Agnostic: That is question-begging.
Believer: You're denying the existence of gravity!

Posted by: Pope Benedict | Aug 21, 2006 3:35:47 PM

Fascinating post. Here are two follow-ups on "physics envy" based on
Alasdair MacIntyre on the nature of generalizations in social science (I'm afraid I accidentally posted this to Adam K's post earlier, so if you want working links, look there!):


1) From Michael Froomkin's jurisprudence course (href="http://osaka.law.miami.edu/~froomkin/jurisprudence/jI.4.htm">examining
whether law is a science)

2) from some notes
on MacIntyre backing up the difference between natural and social
sciences:

Four elements make human life radically unpredictable and not amenable
to theories:

a) Radical conceptual innovation
b) Unpredictability based upon not knowing the future events.
c) Game theory forgets the difference between prospective and
retrospective knowledge.
d) Pure contingency (99)

And some eloquent resulting reflections:

"It is necessary, if life is to be meaningful, for us to be able to
engage in long-term projects, and this requires predictability; it is
necessary, if life is to be meaningful, for us to be in possession of
ourselves and not merely to be the creations of other people's
projects, intentions and desires, and this requires unpredictability.
We are thus involved in a world in which we are simultaneously trying
to render the rest of society predictable and ourselves unpredictable,
to devise generalizations which will capture the behavior of others and
to cast our own behavior into forms which will elude the
generalizations which others frame. If these are general features of
social life, what will be the characteristics of the best possible
available stock of generalizations about social life?" (104)

My answer-in-a-nutshell: generalizations that balance an objective
observation of human behavior with a subjective, hermeneutic,
interpretive sense of what that behavior means to its doers and those
around them.

Posted by: Frank | Aug 21, 2006 4:05:33 PM

I had resolved (not two minutes ago) to drop out of this thread given your complete failure to answer my little syllogism at all. I may still do so. However, I'm terribly curious about what question it is that I'm begging. I can't promise to participate in this discussion any further, because it's really proving a massive waste of time. But here's at least one more comment:

Lets go back for a second to "We have no way of verifying or falsifying what the world would be like if the moon were made of green cheese, because the moon isn't made of green cheese."

The structure of that assertion is as follows.

"We have no way of verifying or falsifying what the world would be like if p, because not-p."

Where p happens to be "the moon is made of green cheese," but could be replaced by any other false proposition about the physical world.*

That's conceptually indistinguishable from saying:

"We have no way of falsifying a theory that says p, because not p."

This is so if you agree with my premise (3.5) above, the way that we falsify p is by observing a feature of the world that would not exist if p.

The "because" in the sentence above suggests I can take the generalization of your claim one step further. That claim can be re-written as:

Not-p, therefore p is not falsifiable.

The only way this can be true is if for any p, p is not falsifiable if not-p. (Otherwise, showing not-p would be insufficient to show that p is not falsifiable.)

Therefore, your quoted claim is that a thing is not falsifiable if it is not true. The only concievably contestable claim I've made in this comment is that we falsify theories by observation. But I'd like to see you contest it.

If not, then your claim is manifestly that the mere fact that a theory is false makes it non-falsifiable. The patent absurdity of that claim should be obvious.

----
* This is where you may object that the green cheese proposition is "metaphysical." Even if it were true (on some really broad notions of metaphysics), the green cheese proposition was just an example, and hardly a necessary one. I could replace it with any other false claim about something in the physical world. "Nothing can move faster than sound." "Objects fall away from massive other objects." "Cats can fly." "I have x-ray vision." "Earthquakes are caused by giant worms wiggling around under the ground." "If you sail too far west, you will fall off the edge of the Earth." All of those claims are structurally indistinguishable from the Green Cheese theory, and all are false. If they're all "metaphysical," then you have to explain how all of the physical sciences aren't "metaphysical," and explain how "metaphysical" and "scientific" are inconsistent.

Posted by: Paul Gowder | Aug 21, 2006 4:09:37 PM

(Amusingly, since falsifiability means being able in principle to be shown to be false, that the claim "for any p, p is not falsifiable if not-p" can be restated as "if not-p, it is impossible to show not-p." That is, ahem, a very interesting epistemological position.)

Posted by: Paul Gowder | Aug 21, 2006 4:18:02 PM

Paul,
Actually, I mean it in both those senses - neutral as to existing and being applicable independently of the specific area of law, and neutral as in favoring no particular outcome. My theory of how to interpret a law -- and you can call it originalism, textualism, whatever is prefered -- is neutral in both senses. It is neutral in the sense that I would apply essentially the same tools to a Constitutional case as I would to a statutory case, and it is neutral in the sense that it makes it much harder for me to simply pick a result. It's of interest to me that people criticize Justice Scalia's occaisional departures from originalism as if that were proof enough that the theory doesn't work; I would say it is proof of precisely the opposite: the very fact that it can be said in any meaningful sense that Scalia has departed from originalism demonstrates that originalism produces a range of acceptable results against which a departure can be judged. It is meaningless to say that Scalia and Thomas did anything "wrong" as originalists by joining Justice Kennedy's opinion in Bush v. Gore, unless one concedes that the original meaning of the Fourteenth Amendment cannot be squared with Kennedy's opinion (it can't, in my view, which means they did do something wrong, although one understands why). By contrast, it cannot ever be said that Justice Breyer has "departed" from his judicial theory, because Justice Breyer's judicial theory - insofar as he has one - is incapable of neutral application to produce results against which Justice Breyer's vote can be measured.

As to why that kind of neutrality is a virtue, I'm not sure how to explain why that's a virtue; it's rather like being asked to explain wy being a nation of laws not men is a virtue. I'm sure there may be some deep philosophical explanation that would fill volume after volume, but so far as I'm concerned, it's axiomatic. It is a virtue insofar as it provides criteria for deciding cases which do not rest exclusively on the preferences of the Judge. Now, granted, originalism - my version of it, at any rate - is not entirely deterministic, and I don't suggest that we can replace judges with computers. But that originalism does not always provide the answer is not the damning indictment opponents seem to think that it is. It is still better than any alternative at providing an actual inquiry against which a result can be measured.

Posted by: Simon | Aug 21, 2006 4:33:24 PM

Simon: I guess my beef is not with the "favoring no particular outcome" bit, but the "I would apply essentially the same tools to a constitutional case as I would to a statutory case" bit.

On first blush, for example, the originalism proponents argue for original public meaning of constitutional provisions rather than original private meaning of the framers. Yet it's fairly well accepted to use legislative history and other bits of the record of a statute that aren't really "public" in interpreting congressional enactments. And that makes sense: congressional enactments are easier to change if the court gets it wrong, for one thing. So even a constitutional originalist need not be an originalist in the same sense with reference to statutes.

Similarly, there might be good reasons to be originalist about certain features of the constitution but not about others. For example, some features of the world surrounding the constitution might be fairly stable over 200 years. For example, concentrated power still leads to abuses, just as it did back then. So the meaning-in-the-world of separation of powers is about the same. By contrast, other features of the world surrounding the constitution have changed in big ways. It is now possible to get the information that, before, would only be gotten by breaking into someone's house and rifling their papers, by intercepting a radio wave on the other side of the world. The principles the framers wanted to institute are no longer protected by the original public meaning of the words they laid down, because the world surrounding them has changed. Originalism makes no sense there. (This is where I like to plug Larry Lessig's old translation article as an alternate theory -- as the theory to beat the theory of originalism, as it were.)

Doing that -- so long as it's done in a principled way, need not be neutral in your "applied the same way to every law" sense, but it can still be neutral in the more important "not just legislating from the bench" sense, can't it?

Posted by: Paul Gowder | Aug 21, 2006 4:52:26 PM

What I take from Paul's response (with which I agree) is the problem of judgment and induction (what Kant divided into reflective and determinative judgment). Let's assume you can, by induction, derive the rule of law you believe is consistent with original intent, whatever it is. Now, as Paul points out, you are faced with a new situation, and you must apply the rule to a new set of facts. Does unreasonable search include sitting out on the street and intercepting unencrypted wireless from inside the house? Without opening up (I hope) a whole new can of worms, Simon's position, it seems to me, is that there is a rule for the application of a rule, which turns into an infinite regress. (If you state a rule for the application of a rule, what is the rule for applying that rule, and so on....) Hence, the Kant/Wittgenstein conclusion that there is no rule for the application of a rule.

This was the basis for arguments that there was no principled basis for judging at all (a post-modern sort of view), which Dennis Patterson answered by saying that the integrity came from something outside the pure application of the rule. That is, we look to the reason for the rule, and attempt to apply the rule in the next circumstance consistent with that rationale. What that means is that originalism has to be a narrative (as Patterson would call it) that serves to justify one's application of the rule to the next set of facts, and it is not inherent in the rule itself or in its logical application. For more on this, see Dennis M. Patterson: Law's Pragmatism: Law as Practice & Narrative, 76 Va. L. Rev. 937 (1990).

Posted by: Jeff Lipshaw | Aug 21, 2006 5:39:37 PM

A couple of somewhat disjoined replies, Paul:

Well, in the first instance, I don't think it's "fairly well accepted to use legislative history and other bits of the record of a statute that aren't really 'public' in interpreting congressional enactments" - in point of fact, the validity of legislative history continues to be a topic of debate that has proponents (any result-oriented judges when it suits their purpose), opponents (Scalia, Kozinski, me) and those to one extent or another inbetween (Alito, Thomas). So I don't accept that point from the outset.

When I say that I'd use the same approach, what I mean is that except where otherwise defined (and unlike most statutes, the Constitution lacks a definitions section) the touchstone is the ordinary, plain meaning of the text, followed by indicators like structure and very possibly even purpose.* But the plain meaning of the text is informed by the context of the time and the understanding of the langauge in that time. So when the cout misinterpreted the DTA in Hamdan, we wouldn't ordinarily think of it this way, but what they should have been concerned with and wasn't was the original meaning of the DTA - i.e. the plain meaning of its terms in the mid-2000s. We don't really need to perform any kind of originalist inquiry on the DTA or ERISA, because they are written in the same era in which we live, but if ERISA is still the bane of Supreme Court Justice's lives in a hundred years, they should be looking for the original meaning just as we notionally would need to do now.

Ultimately, I'm not sure that I understand how you can adopt one theory to interpret a statute and another to interpret the Constitution, because it seems to me that both are authoritative documents, and the manner in which they should be construed is governed by your view of what such a document means. If you believe that its meaning evolves, you should read a statute to evolve just as much as the Constitution. If you think the Constitution's meaning is enduring, you should read a statute to have enduring meaning. Even less defensible, a fortiori, would be applying different methodologies to different sections of the document, although I realize that is presently fashionable. Liberals want a broad construction of Article I and a construction of Article II that's so tight the pips will squeak; many conservatives, on the other hand, want a strict construction of the Bill of Rights, but they want a jaw-droppingly broad construction of Article II. To me, that's totally inconsistent. You apply the same methods to each part (although that obviously does not foreclose the evolving application of those principles, as we saw in Kyllo, for example).

Lastly, it's not clear to me that you're right that just because the world has changed, in ways that make the original meaning of a given provision less important, that originalism makes no sense. Suppose that the original meaning of the Fourth Amendment could be determined sufficiently to determine that the NSA call monitoring program was not unconstitutional. Is that what you mean by originalism making no sense? Because the original meaning of some provisions might not allow you to reach a particular outcome you have in mind? If so, I'm not sure that such reasoning suggests that originalism doesn't make sense. Originalism makes perfect sense if you believe that a law should mean what it meant when it was adopted, and it continues to make perfect sense even if you think that the original meaning no longer applies and should be amended.


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* I might add, though, that a purposive inquiry is only valid insofar as it illuminates the text - a purposive inquiry that seeks to go around the text is never valid, insofar as the law is what its drafter actually wrote, not what they intended to write. There's a lovely little story that came out of the tributes to Chief Justice Rehnquist that a lawyer was arguing a case, and just kept talking, kept talking, kept talking, until eventually the red light went on and Rehnquist cut him off; the lawyer said "I had intended to reserve some time for rebuttal," and the Chief answers, "you didn't." I think of that story now whenver I think about intentionalist arguments: "but your honor, when I wrote that law, I know that I wrote 'may', but I meant to write 'must'." "You didn't."

Posted by: Simon | Aug 21, 2006 5:40:22 PM

Jeff:Let's assume you can, by induction, derive the rule of law you believe is consistent with original intentSpeaking of Larry Solum...

Posted by: Simon | Aug 21, 2006 5:42:02 PM

Does "the moon is made of something other than green cheese" qualify as a theory? That's still a coherent approach to describing the moon. It establishes that there is such an object as the moon, it is composed of some material, and that material is not green cheese. That's still a useful theory and a useful understanding of the moon.

Constitutional interpretation is different. If we simply reject originalism without proposing anything to take it's place, we're not left with a coherent understanding of constitutional interpetation. It's not at all useful to simply know that there is a constitution and it has some meaning, but that meaning is determined by some method other than originalism.

Another important distinction between theories about the moon and theories about constitutional interpretation is that the latter is better understood as a method rather than a theory (at least it's a method when judges do it; it's arguably a theory when academics do it). I don't believe that it's logically possible for a judge to interpret the constitution without a method of some sort. If the judge simply tries to rule in accordance with his own moral intuitions, that's a method. If the judge rejects judicial review and completely abandons the role of interpreting the constitution, that's a method also. As long as the judge is forced to choose a method, I see no excuse for not using the most theoretically defensible method available.

Posted by: FXKLM | Aug 21, 2006 5:46:12 PM

Oh no, I'm involved in this (but trust me, not for long). Why is either original meaning or original intent the "most theoretical defensible method available"? This is not a debate in which I have any particular emotional or professional stake (or, as is apparent, any knowledge), but that sounds to me like the rationale for fundamentalism, and is the source of division between the orthodox and the modern in almost any religion you'd like to choose. To take my own, because I don't keep kosher and drive my car on Shabbat (indeed, I may keep about six of the 613 commandments in the Shulchan Aruch), am I a theoretically less defensible Jew than my strictly halakhic brothers and sisters? Personally, I don't think so. I prefer to think that tradition (or originalism however you define it) is entitled to respect and long consideration but not preemptive application to modern life (the past has a vote not a veto). I'd like to think that for any orthodox ritual there must have been a universal principle and look to the universal principle rather than the ritual.

So what is the principle of being secure in one's home from unreasonable search or seizure? Why should I be bound by how an upper class Virginian in 1789 might have applied the rule to his 2,000 acre estate in Albemarle County? Why shouldn't I think about the underlying principle of the rule when applying it to a condominium hallway? Should I wear payehs and tsitsit and a black hat and caftan, or instead consider the principle behind the custom (assuming there was one other than late feudal Polish fashion sense)? Is it more theoretically defensible to fear the incipient or the slippery slope, rather than plowing ahead with some concession that the universals hold, but the specifics change?

But I'm outta here.

Posted by: Jeff Lipshaw | Aug 21, 2006 6:13:37 PM

I don't really have anything to add with what Jeff just said. It looks completely right to me. The crux of it is that words have meaning only in context. All the rest seems like detail.

Posted by: Paul Gowder | Aug 21, 2006 6:26:42 PM

I could replace it with any other false claim about something in the physical world.

Except you don't actually know that the moon isn't made of green cheese, nor do you know what the tides would be like if the moon were made of green cheese, so you're in no position to presume that the tides of Lake Michigan would not be the way they are if the moon were made of green cheese. You did not make a "false claim about something in the physical world"; you made a claim about a counterfactual world that cannot be observed.

Posted by: Pope Benedict | Aug 24, 2006 2:25:43 PM

So what is the principle of being secure in one's home from unreasonable search or seizure? Why should I be bound by how an upper class Virginian in 1789 might have applied the rule to his 2,000 acre estate in Albemarle County? Why shouldn't I think about the underlying principle of the rule when applying it to a condominium hallway?

This is easy in the context of constitutional interpretation, because we know the constitution exists. It is quite a different thing to "infer" from the observation of gravity the existence or absence of God. Or "reason" from a certain formation of the tides at Lake Michigan, a conclusion that those tides would be different if "changes" (that we do not know are in fact changes) were made to the world that we cannot confirm will make a difference (because they have not been made, nor can they be, nor could we observe the changes if they were made, given that we are not fourth-dimensional beings).

Posted by: Pope Benedict | Aug 24, 2006 2:44:56 PM

Let’s say that beneath a coat of cosmic dust, the moon is made of green cheese with physical properties indistinguishable from those we observe now (e.g., density). The tides at Lake Michigan would be the same – in theory. But we can’t test my theory, can we? Assuming that the moon is made of rock, how would we test my theory without so changing the world as to preclude reliable testing (i.e., hollowing out the moon and filling it with green cheese)?

Posted by: Pope Benedict | Aug 24, 2006 3:09:35 PM

Pope: I defy you to identify a false claim about the physical world that is not also a claim about a counterfactual world that can not be observed, on your way of thinking. (Other, that is, than claims that can be shown to be false a priori, since those aren't the kinds of claims we'd seek evidence for anyway.)

Unless you can do so, or identify any means whatsoever by which the two types of claims can be distinguished, I refer you back to my previous comments, which demonstrate by induction that you're taking the patently ridiculous position that false claims are not falsifiable.

Posted by: Paul Gowder | Aug 24, 2006 5:59:13 PM

Why would I have the burden of proving an argument that I never made? My argument is very simple. Certain kinds of claims are untestable, e.g., "She is being discriminated against more than she would be were she a man." She doesn't exist as a man, so we cannot make the comparison. By contrast, saying "I am being discriminated against because I am a woman and this document proves it" can be falsified by observing that the sheet of paper is blank and I am a man. Your failure to draw this very simple distinction not only casts doubt on your sanity, it also places you on the wrong side of Occam's razor. But you can continue to grapple with straw-men if you prefer to. (To spell it out for you: you claim to be "inducing" but are really begging the question.)

Posted by: Pope Benedict | Sep 2, 2006 2:10:32 PM

It certainly took Paul Gowder a whole lot of theory to fail at proving it does not take a theory to beat a theory.

Posted by: Irony Maven | Sep 2, 2006 2:19:40 PM

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