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Wednesday, October 31, 2007

Interpretive Pluralism

Well, we seem to be at it again.  Originalism just never gets tiring (for bloggers, anyway).  Here's the latest string:  Leiter, Barnett, Balkin, and Solum.  Just one thought from me for the day.  It may be that Balkin is right that theorists are not actually trying to develop a theory of what judges do -- but it does seem somewhat important if originalism has no claim to special authority from the perspective of practice.  This is why Solum wants more from Leiter:

In particular, Leiter would need to show that there is a well-established judicial practice of reading the Constitution in ways that are self-consciously inconsistent with the original public meaning (or the conventional semantic meaning) of the text.

But I find this challenge from Solum somewhat perplexing -- if only because the Court routinely disavows original meaning; judges do this self-consciously all the time.  I have been especially sensitive to this in teaching Con Law I this term.  From interpreting the commerce clause (in its positive and "dormant" aspects) to the treaty power, and from the 10th Amendment to standing doctrine, original public meaning is routinely ignored -- and self-consciously so.  In some of these cases, Solum might reply that these are mere instances of "construction" rather than "interpretation" proper.  Yet, I would think that when construction so clearly disavows or feels free to ignore original public meaning as a relevant factor in picking a rule of decision, this would have to count for Leiter and against Solum.

Of course, I don't think practice is actually decisive on the question of whether anyone should be an originalist.  My little contribution to this field is here.

Posted by Ethan Leib on October 31, 2007 at 12:52 AM in Blogging | Permalink


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Here's Missouri v. Holland in 1920: "[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of out whole experience and not merely in that of what was said a hundred years ago." That doesn't say that meaning changes, just that meaning alone doesn't decide cases. Not controversial once we distinguish meaning from application, as the Court did in Euclid v. Ambler Realty in 1926: "[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. … [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles…"

The 11A, says Blatchford, "stand[s] not so much for what it says, but for the presupposition of our constitutional structure which it confirms." But the cases make very plain that they're applying the background principle of sovereign immunity, not the 11A itself. They're not expressing a freedom to depart from the original meaning of the 11A in light of later developments; they're applying notions expressed in the original ratifying conventions, before the 11A. (Maybe these cases are wrong, of course, but they aren't self-consciously rejecting original meaning.)

Posted by: Chris | Oct 31, 2007 8:44:06 PM

Easy to find examples in Commerce Clause ("both" of them), 11th Amendment, and Missouri v. Holland.

Posted by: Anon | Oct 31, 2007 5:14:30 PM

Is the original meaning explicitly disavowed, or the original expected application? I can't think of an example where the Court said straight up, "We don't care what meaning the constitutional language expressed at the time it was adopted." Stevens has said that more or less in some concurrences, but I can't think of an example from the Court itself.

Posted by: Chris | Oct 31, 2007 4:51:18 PM

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