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Tuesday, February 02, 2010

Constructing the Canon

Greetings prawfsworld.  It's a real pleasure to be invited to guest blawg, and I want to thank Dan, Rick, et al for the opportunity.  I thought I'd use my first post to plug the paper--or at least the idea--that I presented on the AALS panel with Rick Hills, Larry Solum, Mitch Berman, Laura Cisneros, and John McGinnis.  Some discussion growing out of that panel has already taken place on prawfs, but because my thoughts sort of abandon the interpretation/construction distinction right out of the box (at least as a tool of a foundational kind of constitutional theory), I thought it might be worthwhile to try and summarize here what I was trying to get at there.

You should know first that I endorse, and work within, Philip Bobbitt's approach to constitutional argument and interpretation.  I see Bobbitt's early work as a kind of Kuhnian "paradigm shift" in constitutional theory, and I am happy enough (for now) to simply plug along as a "problem solver" within that framework.  That may be enough to make you stop reading, but, if not, here's a brief description of how that model plays out in the paper I presented at AALS.

Bobbitt's first and most fundamental insight is to recognize the similarity between our practices of constitutional argument and our practices of language.  Importantly, Bobbitt's approach does not seek to clarify provisions of constitutional text with the application of some bit of semantic or literary theory.  Rather, he wants to point out that our practices of arguing about constitutional meaning are contextual and rule-governed in much the same way as are our other language practices.  That is, Bobbitt sees constitutional meaning as analogous to a Wittgensteinian "language game", within which the possibility of communication arises from our ability to understand and follow a shared set of rules.  For Bobbitt, these basic rules break down into six "modalities", or forms, of argument: historical, textual, structural, doctrinal, prudential, and ethical.  If we make arguments within these modalities then we are making "legitimate" or comprehensible assertions of constitutional meaning; if we make other kinds of arguments we are not.

Bobbitt's second insight, which the first makes possible, is that, because it is the product of an argumentative practice, constitutional meaning is rarely foundational (as in "analytic") or permanent.  As with Wittgenstein's view of language--in which meaning often derives from proper usage rather than referential correspondence with objects in the world--Bobbitt's account of constitutional meaning is rule-based and not absolute.  So, if we are playing the constitutional game by the rules, then we can make legitimate assertions of constitutional meaning.  And--and this is the important part--its is the practice itself that generates and enforces these rules.  This means that any effort to impose an external set of rules on the practice--say an effort to make originalism the only real way to play the game--is doomed to fail unless the practice itself accepts and adopts that imposition.  From this it follows (I think) that the most useful kind of constitutional inquiry does not attempt to reveal the "right" formula for interpretation, but rather describes the processes by which the practice generates and adopts argumentative rules and meanings--and then explores the ways that we might influence that process.

The paper I presented at AALS is such a description and exploration.  In it I describe evolutions in the constitutional canon; those texts that a competent practitioner must use, or at least account for, when making constitutional arguments.  I draw on a Wittgensteinian metaphor in comparing the relationship between the canon and the practice to that between a river and its banks.  The canon helps to make up the banks through which our argumentative practice must flow, but, in turn, the flow of the river reshapes the banks over time, such that the practice itself eventually changes the meaning of canonical texts.  My account suggests that we use canonical texts as metonyms in our arguments; that is, as symbolic of some larger set of associated principles--thus Lochner might stand for judicial activism in argument--and that the relevant principles may accrete or decay over time.  I then describe three historical examples of this process in action, and try to illustrate the argumentative processes that brought these evolution about.  How is it, for example, that Brown v. Board, which once stood for something like the virtues of enforced desegregation, was recently employed as symbolic of the evil of racial classifications writ large?

But this post is already too long.  Suffice it to say by way of summary that I don't find the interpretation/construction distinction as useful as others may.  It's not that I don't think the distinction is coherent, or can be a valuable contribution to originalist theory; it's just that I don't believe that historical arguments can themselves reveal definitive constitutional meanings.  In the end, the distinction's greatest  utility is that may give us more precise means of arriving at possible constitutional meanings.  But maybe I'm wrong; maybe one day someone will unfurl an interpretive theory so blindingly brilliant we will all unflinchingly accept it as the right way to do business moving forward--and then all us constitutional types will be out of jobs.  Thoughts?

Posted by Ian Bartrum on February 2, 2010 at 11:06 AM in Constitutional thoughts | Permalink

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