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Thursday, May 05, 2005
Semantics and Originalism
At long last, Sunstein is finally offering a response to Barnett's originalism at the Legal Affairs Debate Club. But boy has it been fun thus far to watch them argue over what term to debate. One really has to wonder what these conservatives think is really at stake in the term "Constitution-in-Exile": David Bernstein is still talking about this fascinating issue of nomenclature! I would have thought this exilic community would just embrace the romanticism of exilic communities.
Posted by Ethan Leib on May 5, 2005 at 11:49 AM in Current Affairs | Permalink
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Comments
Well, I suspect you are being fascetious here, but I'm not sure.
I don't know what "equality" entails precisely in all cases. But I do know that "equal" does not mean "piss poor education as compared with a better one." A dictionary from the late nineteenth century--or any other--will not include such a definition. So while "separate" may be equal in theory, in actual practice is proved itself to not be equal at all. Is that really controversial?
As for the Federalist Papers, reading them and relying on them doesn't make you a textualist. Indeed, I wouldn't look at them at all if the text were absolutely clear (as in the case of the 11th amendment, I think), regardless of what they have to say. But reading them DOES make you a kind of originalist because you are moving beyond the text to look at another source, and the source you are looking at can tell you no more than the original intent or understanding (at best). It sure doesn't tell you what today's understanding is.
So text (including structure) first, and then other stuff later. Other stuff might include originalist sources, but may not be limited to that. The sources you turn to will depend on your outlook. For instance, turning to contemporary western european law is not going to be a source for originalists (except in certain very limited kinds of cases), but looking at state constitutions would be. Others will look to precedent. You get the picture.
So yes, textualism first, other stuff next. Since I have no unifying theory to fall back on, I can't tell you what "other stuff" I'd limit myself to. But I do know that I will be more interested in the Federalist Papers than in contemporary French law. But maybe that's just me.
Posted by: amosanon1 | May 5, 2005 3:04:06 PM
Thank you for your clarification; I confessed confusion about your position and now it is somewhat clearer. I guess it took a little needling, but I now understand that you are a textualist first and foremost (and you know exactly what equality entails because the text is very clear about that)--and you believe that the Federalist Papers are important. Okay.
Posted by: Ethan Leib | May 5, 2005 2:53:53 PM
Your characterization of me as an "originalist unless I don't like the result" is both unfair and incorrect. First and foremost, I am a textualist. But I agree with you that in so many cases, you can't just rest on being a textualist. As for originalism as a fallback, I've never adopted that; though I think it is very useful to know what the framers thought they were doing and what the ratifiers thought they were ratifying. That's why it is useful to read the Federalist Papers in order to understand the role of the courts. I assume you are willing to do that much, but I also assume that it doesn't make you a scorned originalist. That is, if you read Hamilton to buttress judicial interpretive supremacy, then you too are an originalist. And I assume you do find some value in the Federalist Papers.
Beyond adherence to the text where possible, I don't have a single unified theory. At this point, I lean towards originalism over whatever the "living constitution" means simply because I don't know what a "living constitution" is, which is precisely why I am keen to hear Sunstein expound on his personal version and look forward to reading Lessig, as suggested by Paul.
So you have me pegged wrong in two ways: (1) for me, the text is primary and, where possible, settles any doubts; and (2) where (as is often, perhaps usually, the case) the text alone is insufficient, I am not a committed originalist, but rather a seeker.
Posted by: amosanon1 | May 5, 2005 2:15:32 PM
Oh, I see. You are a originalist unless you don't like the result--at which point you become a textualist. Textualism is no more sustainable than originalism and relies just as much on a formalistic thin theory of legitimacy.
It is just too hard to play the textualist game with the "open-textured clauses". They said "justice". "Justice is justice." They said "welfare". "Welfare is welfare". This gets us nowhere. Though I agree with you about the 11th amendment.
Posted by: Ethan Leib | May 5, 2005 2:01:34 PM
The word "equal" means "equal." It meant the same thing a hundred years ago as it does today. The framers may well have believed that something could be separate and still equal, but they surely didn't say so. Once life shows that separate is in fact not equal (in many, but perhaps not all, circumstances), it is clearly reasonable--indeed, imperative--to demand equality even if it means denying the "separate but equal" method of achieving it.
Another example of textual primacy over original understanding: The 11th Amendment does not say that a person may not sue her own state. It says that a person may not sue another state. It makes no difference what Madison or anyone else believed about suing one's own state (or that it was a thing "unknown in the law"). What matters is that the Constitution says nothing about it, and there is no dictionary or other reasonable definition of the words in the constitution that could possibly be understood to mean that a person could not sue her own state. So whatever we think about originalism, it is only important when the words themselves do not have a clear and obvious meaning. This is no different from construction of statutes or of contracts.
"What they said" is always more important than "what they meant to say." In the case of equality, they said "equal." They did not say "one acceptable means of achieving equality is through 'separate but equal,' even if it turns out that separate isn't equal."
Posted by: amosanon1 | May 5, 2005 1:52:59 PM
I'm completely confused. The "promise of the very words of the text" "take[s] primacy over original understanding [and] where there is a conflict, it is reasonable to eschew the original understanding in favor of the text itself." But how do those words have meaning apart from their original understanding? Are you saying that contemporary understandings of the "words of the text" can justify departures from original understandings? Where do the words themselves get their meaning? Or their legitimacy? And where does this promise come from? If it is the promise of the orginal authors, you are back at square one and cannot justify Brown (which, by the way, is a legitimate position that never gets defended)? Haven't you made a huge concession: If judges get to "establish justice," "ensure domestic tranquility" and "promote the general welfare" according to non-original ideas of those words, I'm not sure originalism is sustainable.
Politics is part of life, by the way. What is being said is not just that social facts require jiggering with what the document means, but that political facts do as well. Indeed, precisely by paying attention to political facts can the courts reclaim political legitimacy.
Posted by: Ethan Leib | May 5, 2005 1:43:48 PM
Anon: I think he debunked the whole shebang, although he does so not by directly defeating it but by suggesting an alternative which is just as sensible and compelling. But your mileage may vary, and I wuv Lessig, so I'm biased.
Posted by: Paul Gowder | May 5, 2005 1:42:35 PM
Paul: Did he debunk the theory, or its application? There's a world of difference there. If the latter, then that's no big deal. If the former, then the article belyond in the top-25 list we discussed earlier.
Ethan: Judges interpreted the commerce clause differently than they had before in order to accomodate the New Deal. I'm not taking a position on whether this was wrong or right at this point. I'm merely saying that we can't ignore that this "new" understanding of the commerce clause has to do with the political forces brought to bear on the judges; and ultimately with their own glosses on the text--and not the gloss of "life."
By contrast, there are certain changes to the world that do illuminate the text. For instance, whatever you think about the (14th amendment) framers' vision of "separate but equal," life experience showed, long before Brown but certainly by then, that separate is in fact NOT equal in (at least) a whole bunch of cases). So the promise of equality rooted in the text could not be realized by the "separate but equal" principle that was, supposedly, a MEANS towards equality, but one not demanded by the text. Therefore, in order to achieve the promise of the very words of the text, which (in my view) take primacy over original understanding where there is a conflict, it is reasonable to eschew the original understanding in favor of the text itself. In that case, unlike in the case of the New Deal, life really did illuminate the text.
As it happens, I believe that the Constitution ought to be amended much more frequently precisely because the world changes. But changes in the world don't themselves signify changes in the text. I will do a post on what I propose (which may have been proposed before; if so, people will please tell me where; and if not, perhaps it is fodder for a law review article).
Posted by: amosanon1 | May 5, 2005 1:22:29 PM
Can I just point out that originalism has been convincingly rebutted by Larry Lessig since at least 1993? Lawrence Lessig, “Fidelity in Translation,” 71 Tex. L. Rev. 1165 (1993).
Online
Posted by: Paul Gowder | May 5, 2005 12:54:30 PM
Judges didn't create the New Deal. "Democratic" legislatures did that in real "life". Judges just let them "get away with it".
Obviously, Sunstein has not offered a fully worked out rebuttal of originalism during the Debate Club. That would be a bit much to ask of the silly forum (though if they didn't waste three days on semantics, we migth have some more substance to work with). But he has started sketching an alternative and has asked the central question: WHY is the original meaning/intent/document binding? Once we start to see that originalism's answer to the legitimacy problem is very formalistic and none too convincing, we can start to see that its elegant parsimony leaves it thinner than a fully worked out theory of legitimate interpretation should be.
Posted by: Ethan Leib | May 5, 2005 12:43:22 PM
One other point: Randy has been pretty upfront about his originalist approach. Sunstein hasn't been upfront about his. He has reeled of a list to establish that he's not just some results-oriented wacko, but he hasn't given us an alternative to originalism, other than to say that originalism is bad and offer some vague alternative that seems to be "the gloss of life," but which would actually be better understood as "the gloss of judges."
I really like Sunstein a lot, and he can do better. But he hasn't yet.
Posted by: amosanon1 | May 5, 2005 12:22:34 PM
We've had this out already, Amos. See http://prawfsblawg.blogs.com/prawfsblawg/2005/04/note_still_in_d.html.
In short, my response was something like: it was the New York Times, so let's not get too worked up. And the "cabal" element wasn't really a big piece of Rosen's article; that is just the Vast Right Wing Conspiracy enjoying its own caricature. To be fair, some people got really worked up about those scary photographs. See http://www.dissemination.org/archives/2005/05/a_dishonest_por.html
Posted by: Ethan Leib | May 5, 2005 12:06:05 PM
I think what they object to is having their various approaches lumped and labeled together as though they form some sort of monolithic and secretive cabal out to take over the judiciary. The most that can be said about them all is that they believe that the court has improperly interpreted the Constitution, and that some earlier interpretation represents the better view. They don't really agree about which cases were wrongly decided, which earlier interpretations were better, how to go about "restoring," or even which sources to look at. There are all different sorts of originalists (meaning, intent, or understanding?), and not even all these devotees to the "exiled constitution" are really originalists!
For the most part, they are just a bunch of scholars trying their best to make sense out of politics, political theory, jurisprudence, and law. It isn't easy to do, and it is made more difficult when you are made out to be a monolithic dark force in the universe that wants to steal your social security and burn the forests. I think that's what the objection is.
At the same time, I agree with you that the discussion of substance is bound to be more interesting than that of nomenclature. But if I were among "them," and I were given the opportunity to respond to Rosen's piece, I would be hard-pressed to get past the nomenclature issue right from the start.
Posted by: amosanon1 | May 5, 2005 11:59:54 AM
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