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Wednesday, December 07, 2011

The Interpretation/Construction Distinction Revisited

You probably recognize the “interpretation/construction distinction” as a crucial part of the “New Originalism,” at least as presented by the likes of Keith Whittington, Randy Barnett, and Larry Solum.  The concept, as I understand it (and my understanding, or lack thereof, may be the real problem here) is something likes this.  When interpreting legal texts, we go through a two-step process: (1) We interpret the language’s bare “semantic meaning”; (2) We then use this semantic meaning as a cornerstone in constructing the language’s “legal meaning.”  In the first step, we are concerned with fairly straightforward problems like textual ambiguity and anachronism.  In the second step, we must resolve any residual semantic vagueness by constructing a determinate legal meaning. 

A year or so ago I contributed to a discussion on this topic in an issue of Constitutional Commentary, and I tried (rather ham-handedly, in retrospect) to explain that, while I think that the distinction exists and fairly describes a limited class of interpretive processes, ultimately it can do very little theoretical work in the controversial cases that are of most consequence.   In that piece I mentioned Willard Quine’s attack on the dogmas of empiricism in passing, but I failed to make it a central part of my critique.  In doing some new work on Quine, however, I have come to wonder whether my real issue with the interpretation/construction distinction is that it falls prey—at least in roughly analogous ways—to the Quineian critique of the analytic-synthetic distinction.  I’ll try to explain below, hopefully with less hammy hands.

First, let me give an abbreviated take on Quine and the analytic-synthetic distinction.  Analytic statements (going back at least to Kant) are thought to be those that we can assess as either true or false based simply on the meaning of their terms.  The classic example is “All bachelors are unmarried men.”  Synthetic statements are those that require us to do some empirical and/or theoretical work to verify or falsify.  In some sense, analytic statements are the a priori truths we can use to synthetize more elaborate views—they are the “foundation” in some sense of our later buildings.  Quine pointed out, however, that analyticity (at least in informative contexts) depends on the concept of synonymy, which itself requires at least some theoretical constructs and some empirical work.   We have to disambiguate different kinds of bachelors for one (degrees vs. men-about-town), and we have to have some at least basic theory of linguistic reference already in place.  Quine concedes that analytic statements exist—and that they are conceptually distinct from synthetic statements—but contends that the distinction gets very porous when we move beyond the most basic kinds of statement.  We can all agree, for example, that “All bachelors are bachelors” is analytic—but this doesn’t get us very far.  In other words, to say that anything beyond “A=A” is analytic is to embed and understand a statement within some preexisting theoretical context—and this ultimately makes the distinction quite fuzzy.

 Now, let me move on to the interpretation/construction distinction.  I think (though I could be wrong) that most New Originalists concede that “semantic meaning” (which we interpret) is not something analytic in the sense I’ve described above.   They happily acknowledge that we should do things like disambiguate terms and avoid anachronism (“domestic violence” doesn’t mean what it once did) in the interpretation phase, which means that we must have some theoretical pieces already in place as we “interpret”.    As a very simple example, there would be no need to clear up anachronism if we didn’t already think that “semantic meaning” should be fixed at the time of utterance, or something like that.  Further, for purposes of the distinction, its proponents are generally agnostic about the theoretical choices that should guide either the interpretation or construction phases.   But…

In the context of a larger originalist approach—as a piece of the apparatus, so to speak—I think the “interpretation” phase is meant to reveal something (“semantic meaning”) which functions in roughly the same way that analytic statements do in logical positivism.  After some basic moves, made in light of broadly accepted theoretical commitments, we arrive at a semantic meaning based on something like “linguistic facts.”   This meaning is, in theory, something that for practical purposes is objective or verifiable on the face of the language itself (given some set of “linguistic facts” that, again, we can theoretically verify).    With this bit of semantic foundation in place, we can go about the more difficult business of “constructing” (or synthesizing) determinate legal meanings when the semantic meaning is problematically vague.  As Randy Barnett is fond of saying, “There’s a there there”—and what’s “there” is the language’s semantic meaning.  So far, so good.  The interpretation/construction distinction seems to be doing much of the same work the analytic/synthetic distinction was once thought to do.

 The problem, however, is that for interpretation to work in this way—as revealing something basically a priori—one of the theoretical constructs that must be in place is an account of linguistic reference and meaning.  And the account that the New Originalists rely on (roughly Gricean?) simply is not accepted broadly enough.  In fact, I think it’s wrong.  This might not be too much of a problem, except that the account of meaning that Iaccept is something much closer to that which the later Wittgenstein gave.   Roughly, according to that account words often don’t actually refer to anything, either in the world or in our minds.  They derive their meaning from their proper use in a given context—in other words they point us towards linguistic rules, not facts.  Solum, for one, seems to argue that we can discover these rules as if they were facts, and then simply apply them in the interpretation phase.  I think that this fundamentally misunderstands what we mean by linguistic rules

 Linguistic rules are in fact imprecise and changing.  There is no necessary or sufficient set of conditions that define when a word is used correctly (ie, its meaning).  Rather the rules map out what Wittgenstein famously called the “family resemblance” a word bears to itself across various contexts (he asked us to consider all the acceptable uses of “game” as an example).   Thus, the rules themselves require quite a bit of interpretation and construction, all done in light of fairly specific contextual conditions. Thus they cannot, I don’t think, serve as “facts” in the ways that Solum hopes.

 More to the point, if we understand meaning in these terms, it starts to look like an awful lot of theory has to be in place and agreed upon before we can arrive at “semantic meaning” in all but very basic kinds of cases—those where the linguistic rules are so clear that they might serve actually as something like facts.  With all of this theorizing and empiricism going on in the interpretation phase, it starts to look at lot like the construction phase, where we are working to iron out textual vagueness.   The borderline between the two phases has become every bit as porous as that Quine posited between analytic and synthetic statements.  

 To put it perhaps more simply, words are always vague, some just more than others.  And before we can construct determinate “legal” meanings in the face of vague “semantic” meanings, we must first construct determinate “semantic” meanings in the face of vague linguistic rules.

 Phew.  That turned out to be a tome, and perhaps more hammy than ever.  I apologize…but if you got this far, I’d love to read your thoughts.




Posted by Ian Bartrum on December 7, 2011 at 10:18 PM | Permalink


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I think your point as to a space of viable interpretation in regard to “equal protection” or any other pregnant legal phrase at the time of its use in a public document is well-taken. It seems to me that the space in question is going to be narrower than you imply, though; those who used “equal protection” in 1868 weren’t consciously thinking of mathematics, police, husbands, etc (at least I doubt that they were) when they first used the phrase to capture the legal concept they were laying out; the two words, each with its complex connotative character, came to hand for them as they sought the right words to craft the concept of equal protection they were seeking to legislate (as it were). And they themselves were necessarily unaware of all of the ways in which the concept might develop legally when applied to unforeseen circumstances by the courts. It remains the case that they had a determinate notion in mind by the phrase which later interpreters can, in some measure, get at. Of course the concept was “constructed” after its initial creation over the course of time, as absurd legal consequences were avoided and reasonable ones sought out by judges. That any new statute carries the potential for further construction doesn’t negate the importance and significance of what the legislators had in mind when they passed it. One need not endorse the “ought” that you and Jeff reject to nevertheless see the importance of the “is”.

It may be that the semantic meaning of equal protection in 1868 is fixable as a space rather than as a point—perhaps the space is broader or narrower than whatever the equivalent space would be today. It still seems to me that we discover what this space is by historical investigation and that there is nothing damagingly a priori about that process. Originalists suggest there is a “there” there because there is a “there” as to what texts meant. You appear to deny that in denying that there is an “is” as to the meaning of statutes passed even yesterday. It seems to me a big step too far to deny determinate meaning to language intended to commuicate such meaning. But you go on to distinguish “practical agreement” from “facts” in a way which strikes me as untenable. Determining the meaning of a text through, say, historical analysis has nothing to do with verifiable/falsifiable “facts” if by that you mean to imply some sort of scientific test. Practical agreement in a linguistic community is the fact of the matter. But that should be enough.

The twists and turns of the construction of further meaning of a statute that occurs with the passage of time is not foreordained but is also far from random. The steps of construction, as each takes place, are eminently criticizable from the vantage point of how the process has happened up to the point beyond which the construction is at issue. I’ve probably gone beyond my capacity here; I cant speak to the interpretive/constructive distinction in contemporary legal debate; heck, I ain’t even a lawyer. But it seems to me that your tack ends up (at least potentially) completely detaching the interpretive/constructive enterprise from the law which is its object. Anyway, fun to kick this stuff around.

Posted by: Tom H | Dec 8, 2011 10:48:15 PM

Thanks Jeff. Again that's helpful and I appreciate your effort to save me from myself and pull me back to a (perhaps) more easily defensible position.

But... while I agree with you on the "ought" part, too, I don't actually concede as you do that there is an "is" in interpretive practice. I don't think we can determinately identify what the "original public meaning" of a statute enacted yesterday "is", never mind text ratified 200+ years ago. Again, in many cases we may be able to basically agree on that meaning closely enough that it makes no practical difference. But that's not the same thing as saying that a meaning "is" in the sense of being verifiable (or falsifiable) in the way we want "facts" to be.

And, in a belated response to Tom, I actually don't think the burden is on ME to show a consequential divergence in possible semantic meanings--rather, to the extent that the New Originalists want to claim that their approach reveals "true and correct" meanings, the burden is on THEM to show something like logical necessity. If they only want to claim a "better" interpretive approach, fine, but then that's more like pragmatism, which they seem to want to avoid--and your "ought" criticism gets a lot more bite...

But back to your original thought, I actually have my own "ought/is" problems to deal with, as my own theoretical approach actually legitimates an interpretive theory (or an actual interpretation, for that matter) based on its acceptance and use within the practices of the relevant interpretive community. Perhaps I am dangerously close to Quine's naturalism now! In any case, I don't think the "ought/is" criticism is particularly damning in my case because I am really only drawing a "functionalist" (rather than a "moral") ought from the "is" state of interpretive/argumentative practice. That, I take it, is still ok ("If one is sea-captain, one ought to do as a sea-captain does.")

In any case, thanks for a great and thought provoking discussion!

Posted by: Ian Bartrum | Dec 8, 2011 6:23:48 PM

Ian, where I part company with (what I understand to be) the "new originalism," and I think it's where you want to be as well, is the melding of the "is" and "ought." I can accept that we can show as a matter of truth what the community of speakers understood in 1787, or what the public meaning was in 1787, as a matter of truth. What they seem to be saying is that once we have that "is" of the meaning, that "ought" to be the meaning now as well as then. It's that "ought" I don't accept. That's because I don't think "ought" statements have the same kind of truth-value as "is" statements. I'm Kantian enough to think we can reason our way to moral imperatives, but not Kantian enough to think we can reason our way to universal moral truths. What that means is that I have to hang somewhere between a foundational platform and complete indeterminacy, whether it's a matter of constitutional law or Jewish law. That just doesn't trouble me a whole lot, and I think you can still have "rule of law" in that gray area.

So the a priori "there" I think you are seeing is the normative "there" of the "ought" exercise" rather than the descriptive or epistemological "there" of the "is" exercise.

I don't if that's makes any sense, but I appreciate your making me pull out my Quine to think about it.

Posted by: Jeff Lipshaw | Dec 8, 2011 5:45:15 PM

Jeff and Tom,

Thanks so much for very thoughtful and thought-provoking comments! Your helping to restore my faith in the value of blogging.

Let me give a few thoughts in response, though I'm not at all sure they will persuade you in any meaningful ways.

I think Tom and I may have a few quibbles on Wittgenstein etc (but who doesn't!?) but I don't think that's a killer here. Really I think it's enough to say that it's possible (I would say true) that many competent members of a particular linguistic community--let's say educated Americans of 1868--had different thoughts about which exact rules the phrase "equal protection" pointed them too when the 14th Amend. was ratified. (Just as members of our modern speech community do). I.e., which family resemblances to the word "equal" from mathematics apply? Which resemblances to the Declaration? Which resemblances to "protection" by the police? By a husband? By a roof? Etc...

The point is, to arrive at the originalists "semantic meaning" you're going to have to make some decisions/exclusions about these things, which requires construction--often even construction of very same kind we do during the construction phase ("that version of equal requires absurd legal result X"). Thus, in the cases of interest, it is all construction with greater or lesser practical consequences. I suggest in the case of something like "equal protection" it may be greater. In any case, the real question remains whether we are doing our construction historically, doctrinally, structurally, prudentially, etc. All are legitimate ways to do it, and nothing foundationally true about language or semantics changes that...

This brings me to the important issue that Jeff brings out--the originalists claim that this distinction is an important part of a "true and correct" form of interpretation. This is where--though I know they disavow it--they need semantic meaning to serve as something a priori (let meet get rid of analytic, because that was meant just as analogy to help make Quine's point in this context). They need to believe that "there is a there there," as Randy says, to have a regression-proof place to start their "true and correct" enterprise. Whether or not Quine works on natural language, and regardless of his scientific naturalism, the fact that even the originalists starting point is "theory laden"--that it's not "there" until we see it there in a particular way--is, I think, at least a little disabling to the overall positivist kind of project they are undertaking.

Now, none of this is as devastating to the originalist claim of "truth" as is the circumstance that virtually no competent practitioner around today (not even J Thomas) could participate fully in OUR "constitutional argument" speech community if they utilized ONLY the historical modality. Nor could anyone do that back in 1787, or 1868, or whenever. If "new originalism" were in fact the only "true and correct" way to participate in the interpretive practice we would have a very different, and very impoverished, constitutional discourse. I think that the general failure of the interpretation/construction distinction to actually distinguish two qualitatively different kinds of activities is just a small part of this much larger problem.

Posted by: Ian Bartrum | Dec 8, 2011 2:03:05 PM

You suggest that the interpretation-construction distinction is analogous to the analytic-synthetic distinction criticized by Quine. I think this gets the new originalists wrong, to the extent that they depend upon the later Wittgenstein. I think they would agree with Quine that “all bachelors are unmarried men” is not analytic; its not A=A; but, contra Quine, they would say that what the equivalence presumes is that “bachelors” and “unmarried men” have similar places in a linguistic practice shared by speakers who understand the phrase and, thus, its truth. The statement is not analytic but it is a priori for speakers sharing the relevant concepts. Semantic meaning of empirical statements similarly depends on shared concepts/linguistic practices that determine the manner by which such statements get at what’s in the world. That “manner” is not merely a linguistic issue, though. The linguistic practice in which such statements are embedded does successfully bear on the world in a determinate way grasped by speakers who share the practice.

“Interpretation” of past language is thus not a priori in any disabling sense; it depends upon grasp of a practice which connects to the world, allowing speakers within the practice to successfully refer. Of course such practices evolve and the meanings of words change. At any given time, however, in a given linguistic community speakers generally are able to communicate what they mean; words have determinate meanings. Such meanings are a product not of “linguistic rules” but of the shared use of concepts (labeled by words and intelligible as such according to context) in a practice. Such use is more akin to shared intelligent habits grasped via learning-by-doing than to following rules. Texts written a hundred years ago may not be immediately clear to present day speakers but are readily intelligible to those who grasp the linguistic practice of the time e.g. historians. Of course not everything written in the past may be readily intelligible even to historians, but, in the case, say, of 18th century American educated discourse there will be a great deal of clarity, along with some delimited areas of controversy.

The interpretation phase thus need not involve any substantial theorizing; only an immersion in the texts/linguistic usage of a given linguistic community at a given time. Far from requiring any acquaintance with “vague linguistic rules,” the meaning of texts follows from working one’s way into the acquaintance with the world shared by members of a given linguistic community. The new originalists very plausibly propose that this is attainable and, in the case of much originalist constitutional interpretation, attained.

Even if you take a view that "interpretation" requires the reconstruction of linguistic rules, it seems to me the burden of proof is on you to show that any such rules call into question standard historically-informed understanding of, say, 18th century colonial American educated discourse. I believe Bernard Harrison and Patricia Hanna successfully argue that Quine’s division of proprositions between logically necessary and empiric doesn’t work for natural language. See Harrison and Hanna, Word and World, esp Chs 10 and 12.

Posted by: Tom H | Dec 8, 2011 9:07:44 AM

I'm not sure the reference to Quine is necessary at all. My understanding is that his purpose in deconstructing the analytic/synthetic distinction was to demonstrate that even accepted dogmas of empiricism had a little bit of rationalism baked into them. His is an even more radical empiricism - scientific naturalism - that rejects ANY a priori givens, even those underlying an analytic proposition. Quantum theory has no more epistemic privilege than myths about the Greek gods. The only pertinent question is which explanations have more staying power.

I don't find Larry's and Randy's New Originalism particularly persuasive as a means of finding "true" principles of constitutional interpretation, but suggesting their methodology is theory-laden, contra Quine, seems like a straw man to me. I don't think they would deny that.

Posted by: Jeff Lipshaw | Dec 8, 2011 7:58:17 AM

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