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Thursday, February 04, 2010

Does the Constitution Prescribe Rules for its Own Interpretation?

This question is the title of a provocative recent article by Michael Stokes Paulsen, who answers in the affirmative. For reasons I explain in a forthcoming article, I think the argument supporting this answer is mistaken. Nevertheless, it is an interesting puzzle whether a constitutional text (or any other text) can ever authoritatively supply the methodology for its own interpretation. Imagine, for example, that Article VI contained a 4th section explicitly instructing judges and other officials to interpret the Constitution according to its original public meaning. Would this resolve all doubt about how contemporary interpreters should approach the text?

It would not. And not just because the new section would itself have to be interpreted. We can presume that an explicitly worded instruction of this sort would—read in isolation—have the same meaning under any plausible contemporary interpretive approach. Nevertheless, a normative argument would still be required for adhering to this instruction in interpreting the rest of the Constitution. Of course, the instruction itself would raise the costs of applying a nonoriginalist interpretive approach to other provisions. If judges (and other officials) could ignore this language, would any constitutional provision be safe? But these costs could—at least in principle—be outweighed by the substantive unattractiveness of an originalist approach relative to plausible nonoriginalist alternatives (and to the alternative of scrapping the Constitution altogether). If an originalist approach were sufficiently unattractive substantively but so was jettisoning the Constitution, the normatively best option might be for contemporary interpreters to ignore even an explicit instruction to be originalists and instead apply some other interpretive approach to the remainder of the constitutional text. It follows a fortiori that contemporary interpreters might be normatively justified in ignoring the implicit interpretive instructions Paulsen purports to find in Article VI, which unlike an explicit instruction, simply disappear under a range of plausible nonoriginalist interpretive approaches.

An important implication is that interpretive choice need not be all or nothing, pace many originalists. Both constitutional text and original meaning can be embraced in part or in whole, depending on the values that would be served thereby.

Posted by Andrew Coan on February 4, 2010 at 09:00 AM | Permalink

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"[T]o the extent that you contend that Art VI imposes a particular interpretive method upon us, I would simply say that (again, as a descriptive matter) it is not doing a very good job of imposing itself."

Article VI, of course, is doing a very good job imposing itself--officials talk about their Article VI oaths quite a lot. As for the historically-embedded-textual-expression-of-meaning constitutional self-presentation contained in it, well, that's where I come in. And if I'm misreading the evidence I present in the article, please explain how.

"I agree that the Constitution sets down pretty clear sidewalks in some places, but I disagree that it sets down sidewalks that govern (or could ever govern) how we will argue about, and decide, what vague language means in the face of evolving circumstances. The idea that it could do that is, I think, based on an impoverished account of how language (and judicial decision making) work."

Again, you haven't had a chance to review the details of my argument yet, but it's *not* based on any general account of how language *has* to work. I think a common-law, intergenerationally-authored Strauss/Rubenfeld constitution is a coherent way to run things; it's just not the way the Constitution defines itself. See 1637-41. As for what the Constitution did or didn't, or could or couldn't, do, again I think you've got to grapple with my evidence about how the phrase "this Constitution" actually has been used.

Posted by: Chris | Feb 6, 2010 8:50:24 AM

Hi Chris:

It probably says more than anything that I'm posting this response at 12:30 on a Friday night, but oh well... I suppose I understand your reaction to my earlier post. Maybe I was a little hyperbolic; let me try to be slightly more circumspect.

When I say the rules allow us to make assertions that don't depend on the text, I mean things as basic as doctrinal argument. I think that most of us would have to agree that, the text of the 14th Am notwithstanding, the practice does not currently accept the assertion that it is the P&I clause that incorporates the bill of rights. Or it could be prudential arguments, like those motivating the decision in McCulloch authorizing creation of the the federal bank. Assuming arguendo that I accept your claim that the constitution presents itself for interpretation in a particular way, and our current practices ARE inconsistent--they are still our practices, and it is simply a descriptive matter when I say that we currently have non-textual ways of arriving at constitutional meanings. Yet the constitution endures and functions (I think) quite well.

And I'm not suggesting that you're trying to impose any norms on anyone, and to the extent that you contend that Art VI imposes a particular interpretive method upon us, I would simply say that (again, as a descriptive matter) it is not doing a very good job of imposing itself--and thus these are not "norms" that it is imposing. Again, I'm not making any assertion of "ought" here, only of what "is". It may well be that we'd all be a lot better off if we had a clear set of rules that everyone agreed upon, and thus we could churn out constitutional answers by formula. It's just that that is not what we do (nor, I would point out, is it what lawyers in 1789 did when interpreting texts).

And to the final point about the sidewalks, maybe I was being a little flip, and I apologize. But I think we're talking past each other to a certain extent here. The fact that we adopted a written constitution is an essential part of our practice; one that makes our constitutional arguments very different from those that might take place in England or elsewhere. And I agree that the Constitution sets down pretty clear sidewalks in some places, but I disagree that it sets down sidewalks that govern (or could ever govern) how we will argue about, and decide, what vague language means in the face of evolving circumstances. The idea that it could do that is, I think, based on an impoverished account of how language (and judicial decision making) work.

I do appreciate the pushback, though. And I look forward to reading your paper.

Posted by: ian Bartrum | Feb 6, 2010 1:39:22 AM

"[A]s currently constructed, those rules allow us to make assertions of constitutional meaning that don't depend on the text itself."

I suppose it depends to some extent what crowd you run with, and I'm not sure exactly where you're getting rules like this. But officeholders' current practice clearly includes the Article VI oath. See my article at 1643-48. So (it seems to me) if we agree with that practice, and if our other practices conflict with the constitutional self-presentation, our current practices are inconsistent. The mere inconsistency doesn't tell *us* which to jettison--Article VI's constitutional self-definition or other practices that might be inconsistent with it--but Article-VI-oath-taking officeholders don't have the same liberty.

"[W]e cannot impose norms on the practice; it goes where it needs to."

Again, I'm not trying to impose any norms myself; I'm just trying to explain the norms I think the Constitution itself imposes in Article VI.

"Don't pave the sidewalks around campus until you see where the students wear paths in the grass."

Might be a reason not to adopt a Constitution, or to move to England, but for good or ill the Constitution seems to have paved a lot of the sidewalks for us without waiting for our advice.

Posted by: Chris | Feb 5, 2010 10:32:58 PM

Chris:
I guess my larger view of what the "Constitution" is perhaps a bit idiosyncratic, and I should explain myself a little. I see it as an ongoing argument, or argumentative practice, with the text serving (only) as a common focal point. I view the text this way, because (as a descriptive matter) that is how we treat it when we argue about constitutional meaning.

Our argumentative practice, like other language games, is governed by any number of rules or norms, and, as currently constructed, those rules allow us to make assertions of constitutional meaning that don't depend on the text itself. Now, of course, we could try to impose a particular and limited set of rules upon the language game (Andrew hypothesizes "original public meaning" as a definitive rule), but my contention is that the practice itself would soon find that limitation inadequate to confront new problems. It would then evolve, as all language practices do, to fill in the communcative gaps. (I have a piece exploring this with a bit of metaphor theory). My position is that we cannot impose norms on the practice; it goes where it needs to.

Saying this reminds me of a bit of advice (I think) Frank Boyden gives in his book The Headmaster: Don't pave the sidewalks around campus until you see where the students wear paths in the grass.

Posted by: Ian Bartrum | Feb 4, 2010 7:17:43 PM

Ian: "...discovering original public meaning is, itself, an almost impossible task..."

My article explains why I think the Constitution defines itself as a historically-embedded textual expression of meaning. If, then, it's hard to discern the meaning historically expressed by the constitutional text, that just means it's just hard to tell what the Constitution requires. Our possibly unfortunate epistemic condition doesn't warrant us in disagreeing with the Constitution's presentation of its own nature. We can't just assume (1) the Constitution is clear; (2) the original public meaning of the constitutional text isn't clear, so (3) the Constitution doesn't consist of the original public meaning of the constitutional text. (2) gives us reason to doubt (1), especially in conjunction with reason to think ~(3).

Posted by: Chris | Feb 4, 2010 3:13:20 PM

I would also point out that John McGinnis and Michael Rappaport explore related kinds of questions in their recent piece (Original Methods Originalism) in the Northwestern Law Review; and that Randy Barnett presented McGinnis with this precise kind of hypothetical at the AALS panel on the Interpretation/ Construction distinction.

My first thought is a straightforward pragmatic one: discovering original public meaning is, itself, an almost impossible task in any kind of "empirical" sense. Think how difficult it would be to discover a "contemporary public meaning" and then add on the fog of time and generations of conflicting historiography. So, my instict says that such a constitutional provision would not, as a practical matter, provide for any greater "objectivity" in constitutional decision-making.

My second thought is that, for these and other reasons, "original public meaning" would quickly prove to be an impoverished and inadequate interpretive maxim, and--for reasons explored in my post earlier this week--a much richer argumentative practice (governed by a more diverse body of rules and norms) would soon grow up. And I suggest that this would be true no matter which interpretive maxim was entrenched in the constitutional text.

Posted by: Ian Bartrum | Feb 4, 2010 1:58:28 PM

If this were Facebook, I could correct my subject-verb agreement!

Posted by: Chris | Feb 4, 2010 12:12:31 PM

I've got an article similar to Paulsen's here, though I think Paulsen's arguments comes up short--see 1611-12 n.8.

"Nevertheless, a normative argument would still be required for adhering to this instruction in interpreting the rest of the Constitution."

If judges swore an oath to obey it, that'd be enough of a normative reason, I think.

"If an originalist approach were sufficiently unattractive substantively but so was jettisoning the Constitution, the normatively best option might be for contemporary interpreters to ignore even an explicit instruction to be originalists and instead apply some other interpretive approach to the remainder of the constitutional text."

Not if they swear an explicit oath to obey that very instruction, though, would it?

Posted by: Chris | Feb 4, 2010 11:54:26 AM

The most influential originalist theorists today understand that there is a difference between original understanding and judicial application. The normative arguments (and there are several) in favor of applying original understanding form one family of normative theories regarding proper judicial behavior. There are others.

It is not, true , however, that "interpretive choice" need not be "all or nothing" if by that you mean that one has a choice to ignore original understanding in the act of interpretation. As theorists like Lawrence Solum, Keith Whittington and Randy Barnett have pointed out, there is an important distinction between the act of textual interpretation and judicial application. All texts are acts of communication; interpreting a text cannot sensibly be divorced from the rules of language that applied at the time of the text's creation. Thus, the act of interpretation is inextricably tied to the original meaning (or, better, the original public understanding) of words.

Having interpreted a text, it requires a second act to determine whether and how to apply the text to a case at hand. At this point, all kinds of normative values might be applied, from rule of law considerations (stare decisis) to considerations of various theories of justice. But these normative values have nothing to do with the basic act of interpretation.


Posted by: Kurt Lash | Feb 4, 2010 10:33:03 AM

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