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Saturday, January 28, 2006

If all it takes is a theory, what is so hard about coming up with one?

James E. Ryan (UVA) has posted "Does It Take a Theory?" to SSRN, a review essay about Sunstein's Radicals in Robes and Breyer's Active Liberty.  At its core, Ryan's essay criticizes Sunstein and Breyer for failing to come up with a satisfactory alternative to originalism.  It helpfully adumbrates all the holes each author has been able to find in originalism; but Ryan remains frustrated that the authors do not argue for a coherent alternative that could bury originalism once and for all.  Supposing with Scalia that it takes a theory to beat a theory, Ryan charges that originalism cannot be defeated until its opponents do more than poke holes.  Originalism must be replaced with something else and the left has failed to garner consensus around a real vision of constitutional interpretation that can be used to decide cases based on constitutional text.

I suppose I find it moderately perplexing that this should be such a difficult task.  I fully understand the charm of originalism, its parsimony, and its convenience.  And I tend to agree that the consequentialist arguments against it (that it would produce a society most of us wouldn't want to inhabit) are not especially strong. 

Yet, it strikes me that one has to engage in a substantial fantasy of faux social contract theory -- and, in particular, see the document as "ours" because it was agreed to by prior generations of Americans -- to be ultimately taken by the theory of originalism.  Once one is divested of that illusion, many potential theories of constitutional interpretation emerge, some of which can claim precisely the democratic legitimacy that originalism too often claims for itself too quickly. 

While a blog post is not a place to settle THE question of constitutional interpretation, I only hope to convey here that the question about constitutional interpretation needs to be distilled into a much more fundamental question of political theory:  what accounts for the bindingness of the document?  To be sure, if your answer is that over 200 years ago some people you aren't related to agreed to adopt a document illegally (for the Article of Confederation must surely have bound those framers), then originalism may be the best you can do.  But if you have a more subtle argument about what kind of consent/assent the governed continue to give to their rulers and their governing documents, you might be able to construct a theory of constitutional interpretation that gives the text its due -- but where certain contemporary public meanings can trump the public meanings of the ratifiers.  Admittedly, this sort of theory gives judges the capacity to use their "will" to cloud their "judgment" -- but the potential for abuse is always there, even in originalism.  The intertemporal difficulty is at least as disconcerting as the countermajoritarian one.

Posted by Ethan Leib on January 28, 2006 at 08:09 AM in Article Spotlight | Permalink

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Comments

By the way, the "migration or importation of such persons as any of the states now existing shall think proper to admit" is one of the key clauses for my argument, since it doesn't make sense to give "now" a contemporary meaning, as if it were spoken today. We have to give that provision the meaning it had when spoken at the time the Constitution was adopted; the text of the Constitution takes itself to be speaking at the time it is adopted, not today.

Posted by: Chris | Jan 31, 2006 6:47:03 PM

Will,
Actually, even as a non-Judge, I couldn't. As I mentioned in pssing above, the Constitution is legitimate and binding to me is because I wasn't born in America: I emmigrated here from England, so my private citizenship is very strongly and directly tied to an oath to support and defend the Constitution, and to bear true faith and allegiance to the same. That includes warts and all, and probably has a great deal to do with why I hold the jurisprudential views that I do. I think perhaps natural-born citizens don't have quite the same relationship with the Constitution that immigrants should.

Posted by: Simon | Jan 31, 2006 2:08:02 PM

Good. And for a non-judge presumably the choice could be different. You or I as private citizens might well decide-- as a moral political matter-- that this whole constitution (or some other one) is quite rotten and deserving of no allegiance at all.

Posted by: Will Baude | Jan 31, 2006 11:15:54 AM

Oh, I see. Well, in that sense, then, I agree - I mean, the preferred course should be to stay on the bench and rule against one's preferences, since that's in the nature of the job, but I can agree with that point.

Posted by: Simon | Jan 31, 2006 8:45:58 AM

But that's my point. Resigning rather than continuing to swear fealty to an evil document is a choice that's definitely available to a judge, and it comes after deducing whether the document is evil.

Posted by: Will Baude | Jan 30, 2006 11:43:18 PM

This decision is supposed to be content-based.I disagree. I mean, when confronting the clause from the perspective of a legislator or a private citizen, perhaps - but not as a judge. Had I sat on the Supreme Court in 1798 and a case had come before me in which Congress passed a law unambiguously prohibiting "[t]he migration or importation of such persons as any of the states now existing shall think proper to admit" in violation of Art. I §9, I would have faced a simple choice: strike down the law, no matter how much I might like the law and despise slavery, or resign from the bench. Were I a federal judge, and someone showed me evidence that the original understanding of the fourth amendment created a right to an abortion, I would have to strike down a state ban on abortion or resign as a judge. That's the choice.

If formalism stands for anything, it stands for the proposition that a judge has no right to substitute his moral calculus - no mattter how justified it might seem - for the actual meaning of the text. If the original meaning is authoritative, we shouldn't get to make content-based choices based on whether we like that outcome or not.

Posted by: Simon | Jan 30, 2006 11:10:56 PM

Simon:

In retrospect, I should have said that the originalist ordering of the questions is probably this:

First, one decides what method to use to determine the meaning of a constitutional provision. (This answers your fear of pre-judging outcomes.)

Second, one determines what the provision in question says, using the method from step one.

Third, having determine what the constitution requires, one makes the moral-political decision whether to obey it or ignore it. This decision is supposed to be content-based. A constitution that, e.g., required Massachusetts Blacks to surrender their freedom whenever a southern slaveowner and a federal admin law judge said so might or might not be worthy of one's fealty. But it would be odd to suppose that one couldn't make the fealty decision (which is very very distinct from the interpretative decision) once one knew what one was swearing fealty to.

Posted by: Will Baude | Jan 30, 2006 9:08:19 PM

I'm genuinely not sure whether the Constitution is binding on Americans who haven't taken an oath to support it. But all officials have to take such an oath according to Article VI. And officials' oaths, of course, should matter to anyone who is arguing that officials should do something different, or to anyone who wants to be an official. I suppose we do need to know what contemporary oaths mean, but I would think virtually all contemporary officials think that they are "bound on oath" to support what Article VI itself requires that they be "bound on oath" to support--that is, that they are taking the Constitution on its own terms.

Posted by: Chris | Jan 30, 2006 6:50:16 PM

Of course it does. We have to know what the oath means and why it matters to me and the vast majority of Americans, who haven't taken an oath recently.

Posted by: Ethan Leib | Jan 30, 2006 6:28:04 PM

Ethan,

I still don't see it. Most officials think the Constitution is binding because they swore an oath to uphold it, and they thought that their oath was the same oath that is required in Article VI. That doesn't give much room for taking the Constitution on terms other than its own, does it?

Posted by: Chris | Jan 30, 2006 5:09:17 PM

[I]f it is binding because we assent to it in some non-fictively attributable sense, we need to parse the text in light of that assent" - if the Constitution changes depending on who assents to it, when and how, how do you know what you're assenting to? Can a given act of Congress ever be held unconstitutional; the case could be made that the most reliable indicia for whether the people have assented to Congress' power to carry out a certain action is the willingness of the people to elect a Congressional majority which pledges to enact the given law, in which case, isn't the answer no?

As Harry eloquently pointed out, the power of judicial review is democratically legitimated because it does not (or should not) measure a statute against the Judge's own imagination, but against the higher authority of the Constitution; if the Constitution is whatever the majority says it is, what's the point of it? What does it do? Wouldn't we be, in all reality, back to precisely where we started, with a Parliament whose authority is controlled only by popular sentiment - and if not, what does control it?

Posted by: Simon | Jan 30, 2006 2:23:47 PM

"If we think the Constitution is binding, we have to take it on its own terms, and that means being a textualist (semi-)originalist."

It's this that I don't think follows. If we think it is binding, we have to have a theory of how we arrived at that conclusion. For example, if it is binding because we assent to it in some non-fictively attributable sense, we need to parse the text in light of that assent. It may turn out that the assent takes us back to the "original intent." But I don't think that is a necessary -- or likely -- conclusion. It is in this way that the question of the bindingness of the document is inextricably intertwined with "what it tells us to do." That was really the point of the post in the first place.

Posted by: Ethan Leib | Jan 30, 2006 1:57:01 PM

I'm only a semi-originalist, but my foundational argument for a form of originalism rests on the constitutional text's self-understanding: the use of phrases like "this Constitution," "we," forms of "here," and "now" indicate that the Constitution embeds a view of itself as a historically-situated, textually-expressed command. (Email me for details.) If we think the Constitution is binding, we have to take it on its own terms, and that means being a textualist (semi-)originalist. We might not think that the Constitution is legitimate, but that's a question of whether we should obey it, not the interpretive question of what it tells us to do.

Posted by: Chris | Jan 30, 2006 1:46:35 PM

I don't have much to add, but since I think Ethan is at least partially referring to something I wrote with his mention of "faux-social contract theory" reference, I guess I should chime in a little.

As I argued before, the key insight of the American experiment is that government can only claim legitimacy from the consent of the governed. The way our government is structured, this consent is usually measured by the actions taken by our elected representatives. In some cases, however, courts strike down those actions as unconstitutional. By what authority can judges claim that right? Only if their actions are somehow clothed in a stronger law that has been approved by the consent of the governed.

If you reject the idea that the constitution has somehow been given the consent of the governed, that is not an argument for an evolving constitution (or at least it isn't if you have any regard for republican democratic government). It is an argument for jettisoning the constitution and simply letting the political branches rule.

The people only consented to any provision of the constitution as it was understood at the time of ratification. We have never had votes on any contemporary, evolving constitutional principles except for the initial ratification vote and the subsequent vote on each amendment (unless you count presidential elections, and then I suppose only Scalia, Thomas, Roberts, Alito, and Miers should get to be on the Supreme Court until 2009). As a result, it seems to me to follow that the only reason judges can ever claim legitimacy to override a decision of the political branches is if they can clothe their decision in the original understanding of some constitutional provision.

Posted by: Harry | Jan 30, 2006 12:51:52 PM

Will,
The objection I had in mind was that if we determine the original understanding of, for example, the second amendment before we determine whether it is binding, the temptation will surely be to be influenced by whether one likes or does not like the result of the inquiry into the meaning. Whereas, if one concludes before the study that the result of that study is binding, one is more likely to accept the result, even if it isn't a result that one likes.

There are times when Justice Scalia, for example, has transparently abandoned textualism and/or originalism because he finds the result unpalatable (Green v. Bock Laundry Machine Co., 490 U.S. 504, is the case that most immediately jumps to mind as the case which irks me most, although I'm sure you have your own favorites) (I do not include Raich as an example); this never sits well with me, because it seems to me that having declared that the original meaning governs, or that the text governs - or even, if you like, that the evolving standards of decency govern - one should stick by that methodology, even in the face of disagreeable results. Of course, while originalism may be manipulable, to some extent, it compares favorably to the alternatives (such as they are); if one has so squishy a standard as intentionalism or the "evolving standards of decency", such a theory practically invites manipulation. By contrast, one of the primary benefits of originalism is quite aside from its other virutes, it seems to me that once you have bought into the theory - which surely requires the acceptance of the legitimacy of the Constitution as a binding authority? - you are far more likely to accept a result it mandates, even when it means you have to vote for "bearded weirdos who like to burn flags."

Posted by: Simon | Jan 30, 2006 12:51:12 PM

Simon,

"By placing the question of whether we care after the question of what the document says, doesn't that lend itself to answering the second question in light of the first question?"

Well, yes, that is the general idea. What's wrong with that? One might well care what a document says for one's own education or for other purposes even if it weren't binding-- this is why con law students often study the Articles of Confederation.

Posted by: Will Baude | Jan 30, 2006 12:27:20 PM

Ethan:What doesn't follow, however, is that the consent/assent of the modern citizen has any necessary correlation to the historical public meanings of the Constitution's provision. Rather, the modern American's adoption and ratification of the binding Constitution requires that it be interpreted in light of a modern citizen's textual understandingIn essence, the reason I disagree with this is because I think the Constitution is authoritative and binding. If the Constitution is authoritative and binding, in my view, its original meaning must also be. I don't mean to sound conclusory, but that just seems obvious to me, in the same way it seems obvious to me that foreign law is irrelevant to the task of interpreting it: the Constitution is a valid, binding and authoritative document which includes provisions for its own amendment. It can be changed at any time, just as laws made pursuant to it can be changed at any time, by mechanisms specified within the document. This just seems axiomatic to me.

However, I think Will mentioned a key question above (although I'd place the emphasis in a different way): I'm curious to know what rule governs which parts of the Constitution are still enforcable and which turn on current societal norms.

Because there's always such a messianic ballyhoo surrounded the Constitution, perhaps we should back this up into a statutory context. All will agree that - notwithstanding a Munoz-Flores-style challenge - a law passed by the 109th Congress and signed by President Bush that is unquestionably within the scope of Congressional Competance is valid and binding. Unless it is repealed or found unconstitutional (you never know with the evolving constitution, one supposes, what's Constitutional from one day to the next; I said that it was unquestionably in the scope of Congressional competence, but that's today - who knows about tommorow), presumably that law will still be valid and binding in twenty years. So how about a law passed decades ago - the Immigration and Naturalization Act, for example. Is that still valid and binding? I mean, from my perspective, it's valid and binding because it was duly enacted by the Congress per the requirements of the Constitution, but obviously most of the people that are today governed by that Act weren't of voting age when the Act was passed, so they were - I think this is Akhil Amar's phrase - "institutionally unrepresented" in the legislature. How about backing up even further - the Federal Reserve Act? I'm pretty sure that no one alive today was institutionally represented in Congress when the Federal Reserve Act was passed. Obviously, from my perspective, it's valid and binding because it was duly enacted by the Congress per the requirements of the Constitution. But if being enacted by the valid standards of the day is insufficient basis for the authority of a legal instrument, doesn't that beg the question? Is it still valid, authoritative and binding today, in part or whole? Why? What differentiates the parts which are binding and those that aren't - the parts we still like? How old does a statute have to get before we get to start picking and choosing which parts are still authoritative, and most important of all: who gets to choose?

Posted by: Simon | Jan 30, 2006 9:44:42 AM

Will,Originalists and originalist-sympathizers want to recast the argument like so-- First we should ask what the document says. Then we should ask whether we care...Then we should ask what we want judges to do about it...Ordering the questions like this makes the defense of originalism much more intuitive.Isn't there a subtle problem with ordering the questions this way? By placing the question of whether we care after the question of what the document says, doesn't that lend itself to answering the second question in light of the first question? It seems to me that Originalist rests on a presumption that the Constitution is authoritative; if it isn't, the original meaning doesn't matter because the Constitution itself doesn't matter. If it is, surely it doesn't matter whether we care what the original meaning is, because the Constitution is authoritative and thus, should be interpreted according to the original meaning?

Posted by: Simon | Jan 30, 2006 9:18:28 AM

Well, I look forward to hearing more about this in some other forum. I will be curious to know why we can't pick and choose about which parts of the Constitution we assent to as a modern matter.

Posted by: Will Baude | Jan 30, 2006 8:23:53 AM

The "theory" is really not possible to flesh out in a blog post -- or a comment thereto. It isn't fleshed out in my head either. The point was just to draw attention to a direction for further thought. I think the answer to your query has to be that we assent to the whole of it in some way; it isn't like we can use a gallup poll to treat parts as dead letters.

Idiosyncratic was not meant to be a derisive term, by the way.

Posted by: Ethan Leib | Jan 30, 2006 1:45:52 AM

Oh, and apologies if my views are idiosyncratic. They are repeated near-as-I-can-recall in an article by Gary Lawson about fried chicken recipes.

Posted by: Will Baude | Jan 30, 2006 1:36:49 AM

This all makes sense to me, to some degree. So your conception of modern living-constitutionalism remains textualist, it just happens to use a different linguistic community to assess the meanings of the relevant text? That sounds plausible.

Out of curiosity, if we accept this theory as the proper theory of the meaning of the constitution, what would we make of a provision that people did *not* assent to? E.g., suppose that the vast majority of the population decided they were not satisfied with the self-incrimination clause of the constitution, but nonetheless decided not to amend it. What would be the meaning of the text given the contemporary non-assent to that provision? I ask this not to cause trouble but out of a genuine desire to understand the theory.

Posted by: Will Baude | Jan 30, 2006 1:34:57 AM

I appreciate your thoughts as always, Will. But I think it is too sneaky to call the second framing atextual in the slightest. On the contrary, I have repeated time and again that the text remains central -- even on the dynamic view I tried to very briefly sketch in the post. If the document is binding because we all can be said to assent to it, we still are leaving judges the job to interpret it, enforce it, and apply it. The "it" is the same text originalists want enforced. It's just that in the "dynamicists" textual analysis -- their effort to understanding the meaning of the words of the document -- they must look to the contemporary citizen's ratification of those words, for that is the law that binds us today. The originalists, by contrast, have a different source of binding law (even if we are all committed to the same words).

Your view seems a bit idiosyncratic to me; I don't think of originalists as fundamentalists about acontextual meaning. I see them as very worried about separation of powers, rule of law, and concerns about democratic legitimacy. That drives the project much more than some committment to pre-political meaning. But I could be wrong about that, I suppose. Part of the trouble is fitting everyone into the originalist box -- and generalizations are inevitable in this game.

The view I provisionally adopted in the post was one that I don't think can be adjudged to fail to "bear on the . . . question of what the constitution (as document) says." It takes a position on that question very directly: the legitimate meaning of that text must be applied and interpreted in light of contemporary assent to its provisions; public meanings today contribute "meaning-content."

Posted by: Ethan Leib | Jan 30, 2006 12:30:52 AM

"The theory is, I thought, about what judges interpreting a text are supposed to do in their roles. I don't see how we can guide that practical task without addressing the normative question about what the text is and its role in our political order."

I take it the problem is this. Originalists and originalist-sympathizers want to recast the argument like so-- First we should ask what the document says. Then we should ask whether we care. (Implicit answer = yes). Then we should ask what we want judges to do about it. (Answer = enforce it, with varying degrees of humility). Ordering the questions like this makes the defense of originalism much more intuitive (note: not logically required, just intuitively and rhetorically plausible).

Those with other, often more dynamic, less textual theories often want to cast the argument a different way. First ask what the role of "Constitutional decisionmaking" is in our current political order. Then ask what judges' role in the whole thing should be. Then figure out what kind of constitutional interpretation they should use to make sure they can pull that role off.

Either of these seem like plausible enough ways to cast the debate, but my suggestion is that the latter, non-textualist non-originalist methods of judicial-constitutional-decisionmaking simply aren't plausibly cast as methods of interpreting the document. Instead, they are moral, political, and legal theories about what judges ought to do and why others ought to let them, and that's fine, but I don't see how they bear on the (quite possibly irrelevant) question of what the constitution (as document) says.

Posted by: Will Baude | Jan 30, 2006 12:00:45 AM

In a very real sense, each Amendment to our Constitution amends the meaning of the entire document by infusing it with the values of the Amendment. That is why after the 19th Amendment ‘We the People’ finally included the female sex in a meaningful way that it did not when our founding fathers wrote it. This can be taken one step further to find a theory (as Ethan suggests) “where certain contemporary public meanings can trump the public meanings of the ratifiers” based on the “consent/assent the governed continue to give to their rulers and their governing documents.” In a word, a living constitution.

My entire post at my blog www.billvigen.com

Posted by: Bill | Jan 29, 2006 10:59:13 PM

I haven't finished the paper yet; but it seems to give short shrift to Sunstein's minimalism, which seems pretty well articulated, if perhaps not as hard-and-fast as the stereotypical originalist argument (which is, of course, not as hard-and-fast as its proponents make it out to be.)

Posted by: anon | Jan 29, 2006 8:14:26 PM

1. I like Amar's way out of the illegality problem. I have no idea if it is right -- but it is an argument that perhaps suggets that I wrote the word "surely" too quickly. Surely, I do that all the time.

2. This response strikes me as question-begging at best. The theory is, I thought, about what judges interpreting a text are supposed to do in their roles. I don't see how we can guide that practical task without addressing the normative question about what the text is and its role in our political order. Of course we can try to ascertain the "meaning" of the document in the abstract. But that isn't, I think, what the debate is about. It is a practical and political question that cannot duck the fundamental political theory problems of legitimacy. Even if we are just trying to get a general gist of the document's meaning, I don't think we can avoid the normative questions that frame even that inquiry.

Posted by: Ethan | Jan 29, 2006 4:58:56 PM

1. I like Amar's way out of the illegality problem. I have no idea if it is right -- but it is an argument that perhaps suggets that I wrote the word "surely" too quickly. Surely, I do that all the time.

2. This response strikes me as question-begging at best. The theory is, I thought, about what judges interpreting a text are supposed to do in their roles. I don't see how we can guide that practical task without addressing the normative question about what the text is and its role in our political order. Of course we can try to ascertain the "meaning" of the document in the abstract. But that isn't, I think, what the debate is about. It is a practical and political question that cannot duck the fundamental political theory problems of legitimacy. Even if we are just trying to get a general gist of the document's meaning, I don't think we can avoid the normative questions that frame even that inquiry.

Posted by: Ethan | Jan 29, 2006 4:55:48 PM

1: Is it obvious that the Articles of Confederation rendered the Constitution illegal? Surely not. I, at least, find relatively convincing Akhil Amar's argument that since Articles of Confederation (unlike the Constitution) amounted to a treaty, it was subject to the well-recognized principle of the day that material breach by one party rendered the thing a nullity.

2: Does one really want to figure out the normative question of why the constitution binds *before* one figures out the interpretive question of what the constitution says? That seems backwards (not least because it would be hard to know whether one should be willing to disregard the constitution until one knew what it required).

The better approach would first be to contemplate what the document itself demands-- just as first-year law students regularly do when presented with the Articles of Confederation on the first or second day of class. And THEN decide whether or not that document deserved any fealty. (The answer might well be "no").

Posted by: Will Baude | Jan 29, 2006 4:27:08 PM

The consent of its citizens is not presumed by the Constitution. It is a living document, in a sense. It has the ability to be changed with Amendments to conform to the current mores of society. And, unlike the Articles of Confederation, it has the ability to totally invalidate itself through a Constitutional Convention. Originalism only works until the point where its citizenry refuse to bound by it.

Posted by: Mel Gibson | Jan 29, 2006 6:12:50 AM

For the purposes of this post I presumed the bindingness of the text. But I suggested that that bindingness must emerge from some theory about contemporary citizens' consent/assent to the document and its provisions. What doesn't follow, however, is that the consent/assent of the modern citizen has any necessary correlation to the historical public meanings of the Constitution's provision. Rather, the modern American's adoption and ratification of the binding Constitution requires that it be interpreted in light of a modern citizen's textual understanding (informed, of course, by history, text, structure, tradition, political morality, etc.).

There is so much to say about this rich subject. And I'm very pleased with how the conversation is going.

Posted by: Ethan | Jan 29, 2006 3:21:30 AM

For the purposes of this post I presumed the bindingness of the text. But I suggested that that bindingness must emerge from some theory about contemporary citizens' consent/assent to the document and its provisions. What doesn't follow, however, is that the consent/assent of the modern citizen has any necessary correlation to the historical public meanings of the Constitution's provision. Rather, the modern American's adoption and ratification of the binding Constitution requires that it be interpreted in light of a modern citizen's textual understanding (informed, of course, by history, text, structure, tradition, political morality, etc.).

There is so much to say about this rich subject. And I'm very pleased with how the conversation is going.

Posted by: Ethan | Jan 29, 2006 3:20:49 AM

I'm curious to hear an answer to Jorge and Geoff's quesation, stated above. Ethan, are you suggesting that the Constitution is not binding, in part or whole? And if not, what pointare you making when you suggest that originalists "one has to engage in a substantial fantasy of faux social contract theory -- and, in particular, see the document as 'ours' because it was agreed to by prior generations of Americans -- to be ultimately taken by the theory of originalism"?

Without meaning to sound needlessly hyperbolic, and this is an absolutely serious question not a rhetorical one: what is to come of the rule of law if we decide we are not bound by the legislation of a previous generation of Americans?

On a personal note, I remember Paul Gowder trying to draw me into this debate a while ago, but to me, the answer is incredibly simple: the Constitution is legitimate and binding to me is because I took an oath to support and defend it. I don't really care about other reasons, truth be told (I'm sure there are deep philosophical arguments that might explain it), but it seems to me that the legitimacy of legal decisions that were not taken by the current generation is a fairly established one, to the point that I can scarcely believe there's any need to restate it. Why woud the onus be on originalists to explain why the Constitution IS binding, rather than on non-originalists to explain why they think that it shouldn't (and, for that matter, which parts shouldn't be)?

Posted by: Simon | Jan 29, 2006 1:04:50 AM

Ethan,

I wonder what you would consider "giving the text its due." Aren't you in the corner of either treating the text as binding or rejecting it as such? At least some originalists, myself included, duck the question of the democratic legitimacy of binding current generations to a text written long ago. As Mike Klarman wrote, it seems obvious that the Constitution should not govern us now -- and maybe that's what you are getting at with your reference to Social Contract Theory. But we say that IF you're going to be bound by the Constitution, the best way to assess its meaning is to discover (so far as it is possible) what it originally meant.

If you come to the opposite conclusion, though, and believe that the Constitution cannot bind us, then why is any part of the text relevant? Scalia has made the related point that nonoriginalists seem plenty accepting of certain portions of the Constitution -- the establishment of a federal judiciary, for example -- but seek to alter other provisions on the ground of the illegitimacy of the founding generation. Aren't you forced to say all or nothing?

Posted by: Mike Dimino | Jan 29, 2006 12:05:00 AM

Just a clarification: I don't think that those who defend originalism for purely pragmatic reasons can really have much cause to complain when someone simply disagrees with them about the benefits conferred, the disasters averted, and the judicial activism avoided by it. It also strikes me as odd that the argument FOR originalism would consists in an argument about what we don't want judges to do. At the very least, this can't any more be considered a theory than the sorts of accounts Ryan criticizes for failing to provide a positive account of what we do want judges to do. To the extent originalism takes a position on THAT question, I don't think the argument can be purely pragmatic or rule of law driven.

Posted by: Ethan | Jan 28, 2006 8:59:10 PM

Allow me to echo the commenter, Jorge Rossy, above -- why does originalism need to rest on "a fantasy of faux social contract theory"? I don't even know what that means for sure, but I'm pretty sure one can muster a perfectly valid, purely consequentialist (or at least pragmatic) defense of originalism. I'm not sure it can be dismissed as some species of sub-Rousseauian Jingoism.

Posted by: geoff manne | Jan 28, 2006 8:28:13 PM

The above post is an interesting use of the English language, but has very little to do about what "originalists" have written about "originalism." It implies the same strawman argument I've seen elsewhere about originalism: originalism is like Christian fundamentalism because each looks to a text as the answer, and the only answer. This argument then impunes originalists with the belief that God dictated the Constitution just as fundamentalists believe that God dictated the Bible.

Give me a break. Back to the actual issue at hand, Ethan, maybe you have, but it seems in your questions in your post you could do to read Randy Barnett's work, especially the first few chapters of Restoring the Lost Constitution for an originalist view of the Constitution as binding that doesn't resort to social contract theory.

Posted by: Anthony Sanders | Jan 28, 2006 5:28:52 PM

It is convenient to have the link to Ryan's thoughtful essay. An interesting impression as I read the Breyer scholarly work some time ago was how it was readable as a temporally fixed study. The Ryan article appropriately mentions originalism's seance-like air of certainty. Indeed, the rhetoric of the refutation and advocacy in all three authors' work belies the very title of the argument: that somehow there is a preternatural constitution original, an immutable Platonian touchstone form embodied in that document, and that only the originalist-as-exile has the anointed vision capable of beholding that theophany as if present in the constitution hall itself, a private revelation that extracts the social context of the Bay Colony in quintessential form and impeccably overlays its lemmas which are set forth in the constitution, upon our own motor-voter times in complete homologous correspondence. As usual, Laurence Tribe joined the debate from his typically insightful vantage in a related matter, last week, in his precis article written to the pocketpart blog of Yale law students, where he and two other analysts parsed the utility of designing lines of questioning in the US Senate Judiciary Committee centered around specific caselaw questions, such as, 'Would you have decided [casename] differently. Tribe puts it in chronological sense, highlighting the dynamic which occurs in chambers before opinions and dissents are written. My take: in the name of originalism it is not the constitution which is put in exile, rather, it is the jurist's own ideology which is in exile awaiting the moment in which to emerge and apply its definitions. Psychiatrists charmingly have coined the term ideas of reference. I doubt we will arrive at a time when some sects will admit there is a new prophet and rewrite their scripture, although some such written aggregates of advice in fact were a work product of many thinkers, perhaps even many of them unknown in later times and never awarded a fit attribution as pay for their genius. In that quiet moment before the duck, in the blind, facing the primordial urge, preconceptual, the intelligent Justice Scalia still bears arms; the associate mutely vigilant at his side, VP-Cheney, also waits. Neither needs a formal ideation process to guide their acts in the stillness which precipitates into the closing moments of the hunt when ducks arrive, and dogs sally forth to retrieve. Nary a word is spoken for quite a trice, concerning oil exploration, the energy lobby, or planning policy. This is originalism's finest hour apolitical, almost asocial. It must have been like this in colonial times.
Mundane realities resume. The hunting moment and exhilaration are finished. The take bagged and the parties tail off homeward, to the parking area where SUVs and security are staged for the end of the hunt.
As the line of vehicles proceeds up the highway, perhaps they might imagine they are in a safe place in Missouri, where every person who carries a cellphone is imaged on the state department of transportation traffic flow computer, according to newly passed law. GPS is the order of the day. This is the modern social order, or Missouri's rendition of that melody. Fine Mozart plays on the CD in the SUV. The male hunters, going home on the highway.
Why protect the environment, in the duck blind primitive, in colonial times with Delaware Bay teeming with marine life free of pesticides.
Why propose a forward-looking commentary in the original constitution to protect wildlands when the colonies are small settlements in untrammeled terrain so formidable that only civilization pressures will lead to the Cumberland Gap and westward lands.
It is peaceful in the originalist world; only one prophet a few millenia ago; only one omniscient and perfectly harmonious document designed as Athens in its slave-state, presuffragist and flawed Platonian view never could have authored.
The sheer length of time encompassed by these spanning twenty centuries reassures and reinforces the homunculus which beholds the original constitution, now itself ageing nicely at three centuries old. Truly a document that never endured a teenage.
The foregoing is a newsreel in sociologic themes that arrives only to the static nexus posed by the originalist, righteous in ideology in exile in our own times.
As nanotech develops, there will be a new right, privacy of thought.
Then it will more difficult to shield ideology in exile. We might begin to predict the judgment of originalists then, as well. Though one hopes we will cherish our freedoms too much to burnish that mold into which later to cast what are, after all, human beings like us.
Most of the above is metaphor, except the societal insights: that originalism is a rhetorical device serving as a false mask for ideology in exile.
And it is an ideology that is more amorphous than the opprobrium of its partisans are willing to recognize; though Scalia has his moments when he, too, penetrates the haze and admits to a more libertarian view of actual speech, first person proper; let's get the declension right.

Posted by: JohnLopresti | Jan 28, 2006 4:55:00 PM

Ethanb writes:

"Yet, it strikes me that one has to engage in a substantial fantasy of faux social contract theory -- and, in particular, see the document as "ours" because it was agreed to by prior generations of Americans -- to be ultimately taken by the theory of originalism."

Why? I don't understand this.

Posted by: Jorge Rossy | Jan 28, 2006 4:46:31 PM

I disagree somewhat with Dworkin with there being only one right answer. However, I do believe that a Judge Hercules could strike enough of a balance between judicial restraint and/or activism to choose from a set of acceptable decisions. There's no such thing as good laws - only good judges.

The best recent public example I've seen, and you're going to laugh at me, was in an NFL game. A couple of weeks ago, Sean Taylor (bless his possible 47-year prison sentence - he'll end up getting just probation) spit on Michael Pittman in a game. Pittman retaliated by hitting Taylor upside his helmet. Referee Mike Carey then assessed an unsportsmanlike conduct penalty on Taylor and had him ejected. But he refused to penalize Pittman for hitting Taylor. The NFL has no rule condoning this type of non-call, yet it concluded Carey did not err in his decision (you don't see too much judicial activism in officiating). Yes, the law should not be moved by emotions. However, it must still adhere to the mores of the society in which those laws exist. Heck, even Taylor's own teammates agreed with the referee's decision. Still, Pittman should have been penalized, in my opinion. But Carey's decision was still acceptable.

Posted by: Mel Gibson | Jan 28, 2006 3:26:41 PM

One major flaw in Ryan's essay is its failure to note explicitly that Breyer's incompletely theorized pragmatism is effectively the same thing as Posner's more completely theorized pragmatism. As a mode of interpretation, they seem to me to be basically the same. Ryan devotes a single sentence to the similarities between Breyer and Posner, noting that they have different beliefs about consequences in the voucher case. But this ignores that differences in beliefs about consequences is, in fact, part of the theory. Posner's pragmatism relies on the fact that it gives judges agency and judges with agency will (and should) disagree about consequences. The effect is that Ryan substantially overstates the lack of a Grand Unifying Theory of non-originalist constitutional interpertation; Breyer may eschew a belief that such theories are important, but, as Posner's recent Supreme Court foreward makes clear in its last section, Breyer's theory and practise of judging are pretty consistent with such a theory, pragmatism.

(ryan devot

Posted by: DavidSchleicher | Jan 28, 2006 1:43:35 PM

Dworkin's "Law as Integrity" has always seemed a good way to go to me, and it's spelled out pretty nicely in both _Law's Empire_ and, somewhat less systematicaly, in _Freedom's Law_.

Posted by: Matt | Jan 28, 2006 11:26:19 AM

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