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Saturday, July 20, 2019

What makes history constitutionally relevant? Some Reservations about Baude and Sachs’ view of the past

I am alternately puzzled and exasperated by originalist scholars’ attitude towards eighteenth century history. On one hand, they flyspeck old documents unrelated to specific constitutional texts to figure out what those texts mean. (Consider, for instance, Jennifer Mascott’s painstakingly erudite analysis of how eighteenth century writers used the noun “officer” in various corpora of texts to figure out what “Officer of the United States” means in Article II). On the other hand, they mostly ignore the great partisan disputes about banks, monarchy, natural aristocracy, religion, and public debt and the like, that motivated these texts. The historical past in legal scholarship on “original public meaning” has this dignified but misleadingly monotonous look of a white marble Classical Roman statue — misleading, because those statues were originally painted in life-like colors that only washed away with the passage of time. Colorlessly apolitical constitutional interpretations, like colorless Classical statues, are just historically inaccurate.

William Baude and Stephen Sachs have helped me think about this attitude towards history with a typically lucid and analytically deep essay. They argue that lawyers should focus on “legal doctrines and instruments specifically, rather than intellectual movements generally” when trying to figure out what past laws mean, because our law today “grants continuing force to the law of the past,” not the cultural or intellectual movements of the past. Sure, cultural movements, partisan motivations, ideological fights might be the cause of those old legal doctrines, but our modern law “typically” does not incorporate these extra-legal forces. Instead, it incorporates only “legal doctrine (treatises, court cases, and so on).” Baude and Sachs cite Hart’s Rule of Recognition to support the idea that the “internal point of view” leaves out the political, partisan, cultural motivations for the law: In their view, modern law incorporates only this “internal point of view” of the law, not the law’s “external” causes.

As I explain after the jump, I think but am not quite sure that I disagree with almost every part of their argument. Baude’s and Sach’s essay is, however, by far the most careful effort so far to justify a scholarly practice that has previously been followed but not much defended by originalists. For those readers who want the short version, here are my two bones to pick. First, Hart’s “internal point of view” nowhere suggests that the law consists only of “legal doctrine.” Instead, ideological, cultural, even partisan platforms found outside conventional law sources, can just as easily be the basis for an elite’s “internal” consensus of what “law” is. Second, the ideological purposes and functions of constitutional language must be part of legal interpretation of constitutional text from the outset, because (as Ryan Doerfler has persuasively argued) the pragmatic function of words is just as much part of their meaning as semantic usage.


1. Does Hart’s Internal Point of View or Rule of Recognition suggest that we should focus only on doctrinal rather than extra-doctrinal statements of past officials?

Maybe I am misreading them, but Baude and Sachs seem to me to conflate Hart’s “internal point of view” with the doctrinal point of view. Here’s the relevant passage:

Present law typically gives force to past doctrine, not to that doctrine’s role in past society. How to identify legal doctrine is actively debated among philosophers; one standard view urges particular attention to the rules recognized by “the officials or the experts of the system.” A modern lawyer, directed to investigate how the law stood in the past, might thus focus on operative legal texts and on “internal” accounts of legal doctrine (treatises, court cases, and so on), rather than on “external ” accounts of law’s wider reception and operation—unless, of course, the doctrines themselves direct attention to these widespread understandings.
A lot depends on what exactly Baude and Sachs mean by “treatises, cases, and so on,” but, if they mean that Hart’s “internal point of view” is exhausted by conventional legal sources used by courts and lawyers, then I think that they misunderstand Hart.

For Hart, the “internal point of view” on law was simply the attitude of someone who accepted some system of rules as not merely prudentially, but also as normatively, binding. (I rely on Scott Shapiro’s gloss on Hart here). In Hart’s words, "it is possible to be concerned with the rules, either merely as an observer who does not accept them, or as a member of the group which accepts and uses them as guides to conduct.” An example of the former — the “observer” — is (for instance) Holmes’ “bad man,” that is, the person who recognizes the existence of rules only “externally,” as considerations affecting his power to achieve personal goals. The latter — “member of the group” — treats the rules as normative “guides to conduct” irrespective of the sanctions that might follow (or not) from violation of the rules.

Nothing whatsoever about this “internal”/“external” distinction has anything at all to do with the distinction between conventional legal materials addressed to courts and ideological or even partisan materials addressed to the public at large outside of courts. Both can establish norms to guide conduct that the elites of a system might recognize as binding in Hart’s “internal” sense. For instance, Jefferson’s and Madison’s Democratic-Republicans regarded private banking corporations as threats to republican equality, because financiers allegedly had special inside connections that could be used to corrupt government. They sought to make this belief a part of American constitutional law not through lawsuits but through elections. Andrew Jackson succeeded in making this suspicion of federal aid to corporations into a constitutional rule for roughly thirty years (between 1832 and 1862).

Nothing in the constitutional rhetoric of Madison and Jackson denouncing banks as threats to equal citizenship found its way into any legal treatise — not even into St. George Tucker’s treatise that was most sympathetic to this typically Southern point of view. But the anti-corporate principle was nonetheless a constitutional convention that guided political elites in control of the United States for three decades. From Hart’s “internal point of view,” the theory that Congress lacked the power to grant charters to private corporations was no less “law” in antebellum America than the statements found in treatises and the like, because the elites who ran the system “internalized” this principle as a normatively binding gloss on the Necessary and Proper clause of Article I.

More generally, to the extent that modern law today borrows from laws enacted in the past, modern law must take account of the partisan and cultural movements that formed part of the normative basis for elites’ internalizing those laws as guides for their conduct. I am not sure that Baude and Sachs disagree. To the extent that they concede the point, they should also recognize that modern law (and legal scholarship) needs to pay attention to the great ideological fights and fears of the 1780s and 1790s (about, for instance, insidious popish plots of the Anglican and Congregationalist churches, stockjobbers’ corrupting influences over Congress, machinations of the Society of the Cincinnati to create a Cromwellian monarchy, and Anglo- or Francophilic treason in foreign affairs).

2. Can we understand constitutional text without considering ideological function?

There is a second reason why I believe that modern law must incorporate old laws’ partisan and ideological functions. Those functions form part of the old law’s legal meaning. There is a tendency among originalists to use the good ol’ “plain statement rule” to arrange interpretative sources in lexical order: First, look at evidence of purely semantic usage to infer textual meaning, and examine the pragmatic functions served by the text only if the “plain text” is unclear. As Ryan Doerfler persuasively argued (see especially Part I of Who Cares How Congress Really Works?), this lexical ordering makes no linguistic sense: Interpretation of text must be based on “what [the lawmaker] is trying to do” rather than just on “what the [lawmaker] is trying to say,” such that consideration of practical circumstance is built into any interpretation of text from the outset. Once one considers pragmatic function, however, one must think about all of the normative motivations behind the old laws’ words, and those motivations extend far beyond the abstractions in legal treatises and judicial reports.

Here’s an example of how semantic form must follow political function. The old constitutional rule adopted by Andrew Jackson in his Maysville Road Veto Message was that the federal government could not fund intrastate roads, because they were local improvements that did not serve the “general welfare.” Jackson’s motivation was fear of corrupting federal patronage to road-building corporations as well as worries that infrastructure log-rolling would exacerbate sectional divisions between South and West. To the extent that those ideological motivations were voiced as part of the reason for the rule, they are part of the rule just as surely as old dictionaries and corpora of contemporary texts that use the phrase “general welfare.” To the extent that modern law seeks to incorporate such an old doctrine, it must also incorporate those purposes in order to get an accurate read of the old law. (Only such an incorporation of purposes can explain, for instance, why there were fewer constitutional objections to the federal government’s’ giving states land grants dedicated to the funding of railroad lines).

Again, I am not quite sure whether or not Baude and Sachs would disagree with any of this. (Baude is the co-author, with Ryan, of a brilliant essay attacking the notion that semantics can take lexical but not absolute priority over purpose in legal interpretation). To the extent that they agree with me, then I think they would have to enlarge vastly the sorts of texts that originalists typically consider as relevant to fixing the meaning of old laws.

3. Why do originalists want to de-politicize old laws?

I will end by asking a tendentious question and offering a speculative answer. Why do the “new originalists” seem to want to de-politicize old laws like the U.S. Constitution? They seem obsessed with all sorts of lawyerly semantic stuff — lawyerly canons of construction, corpora of texts having nothing to do with politics or the constitution, etc. — that was manifestly not the concern of 18th century constitutional disputants. For the most part, early constitutional interpreters from Madison to Marshall, from Hylton and the carriage tax to Chisholm and states’ sovereign immunity to McCulloch and the Second Bank, all invoked giant, disputed principles about liberty, citizenship, rule of law, and the like to settle constitutional disputes. They did not (indeed, could not) search vast databases to see how a particular word was used in apolitical contexts. Indeed, they rarely spent much time on semantics at all. Why, then, adopt a narrow focus on legal texts that was not shared by the people who wrote and initially enforced those texts?

One reason is that originalists, like formalists in general, want to sidestep heated political disputes in favor of stable, apolitical past settlements. In a typically eloquent passage, Baude and Sachs suggest such a longing for quiet stability: they write

if the legal slate were wiped clean with every new Congress, every election would be a “Flight 93” election. Relying on past law lets us give particular government officials particular limited authorities to affect that law, thereby lowering the stakes of any one official’s selection.

I share Baude and Sachs’ desire for legal repose. Like them, I’d like to find a trove of old documents that, like some ancient deed in the county register’s office, could settle our current fights over basic issues with bare semantics and obscure legal conventions. But I doubt that the U.S. Constitution provides much in the way of such calm. Going back to the 18th century for apolitical, legalistic settlements of big issues is like going to a saloon in 19th century Deadwood to curl up with a nice cup of tea for a quiet read. The 1780s and 1790s were a constitutional barroom brawl. The Federalist and Anti-Federalists managed to create a document together only by ducking the biggest issues with abstractions and ambiguities, strategically deferring fights that could have doomed the whole project of Union.

Maybe Baude and Sachs will be able to persuade us that all of those angry fights are not really part of our modern law today. If they do, however, I doubt that there will be much meaningful old law left over for originalists to ponder.

Posted by Rick Hills on July 20, 2019 at 02:03 PM | Permalink

Comments

I won't speak for Steve, but I'll jump in to say I agree with most of Rick's restated point 1, except for some of the words like "lot." I think it just depends.

More generally, I don't think there's any need for an "exclusionary rule" that people who study law shouldn't also study or know something about politics. For instance, I'm sure many of us have studied or taught Marbury v. Madison. And to fully understand the case, there are some important things one has to know about the political context of the case, the rise of the Jeffersonians, the repeal debates, the backdrop of Stuart v. Laird, etc. etc. But I think most of us recognize that law professors are as competent to study and teach Marbury as anybody is, in part because of Marbury's relationship to the law; it contains important legal arguments, and remains an important ingredient in other legal arguments today.

I think a lot of originalist constitutional history is like Marbury v. Madison. Political and historical context can be important to understanding the law, but lawyers can handle this as well or as badly as they handle most other aspects of the law. They aren't incapable of doing so simply because it involves the law of the past.

Posted by: William Baude | Jul 22, 2019 6:27:01 PM

A few more responses to make sure I am clear on what you folks are saying:

1. I think I agree with the following statement by Steve:

“Doing that dry legal analysis doesn't mean ignoring the bar brawl; it just means valuing the bar brawl for what it tells us about the legal events, and not the other way around....So non-doctrinal sources are fine, and indeed unavoidable. But they can also be misused; these are issues of weight, not admissibility.”

Steve, I take you to be saying that, before one uses a “pragmatic source” (excuse the antiseptic shorthand here for “bar brawl,” slang, in turn, for “publicly accessible political context), one should explain the way in which it fits with enacted law. Is that the idea?

If so, I think I agree with that, with two caveats, one of which is unquestionably Doerflerian and one that, I think, is a natural corollary of Ryan’s work that nevertheless Ryan might resist :

A. The Doerflerian Caveat: Pragmatic sources are always relevant and should always be consulted, however “plain” the propositional content of the text from a “semantic” point of view. (Apologies to Asher btw for using “semantic” to mean “linguistic usage divorced from political or cultural context”: That’s how Solum, Manning, and other textualists use the term, so I’ll stick with the prevailing usage in legal academy — even though this usage DOES use “semantic” as a weird shorthand for “oddly anaemic semantics plus rules of syntax that are not “semantic” at all).

We should never read past law through the eyes of a linguistically competent political ignoramus. So it is a mistake to think that the only function of such pragmatic sources is to disambiguate text that is “semantically” (again pace Asher) unclear.

B. My corollary: That Doerflerian premise means that reading old law will usually — always? — involve knowing a lot about old politics — albeit only the politics of the “winners.”

Suppose, for instance that we want to know whether or not the Seventeenth Amendment allows a popular referendum to fulfill the role of “the legislature of any State” in “empower[ing] the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” I would say that one should consult the publicly accessible political philosophy of the folks who pushed through the 17th Amendment to figure out the scope of the term “the legislature of any State,” regardless of whether or not the phrase “legislature of any State” was deemed to be “semantically” ambiguous or “plain.” The political background might itself, all by itself, render otherwise “abstractly plain” text to be sufficiently ambiguous to justify the use of that political background. That’s not boot-strapping: That’s how language works. (See Doerflerian Premise A above).

Steve, what do you think of A and B above? In principle, you’re on board?

2. Neal Goldfarb notes that serious investigation of linguistic details can reveal important stuff about the communicative content of the law. Agreed. I just do not see why the lexical priority required by the Plain Statement Rule is required to achieve those benefits of linguistic research. I love Saul’s work on the Second amendment, and I enjoyed and learned from Jennifer Mascott’s article on the meaning of “officer.” But why should any such work’s revealing a “semantic” ambiguity be necessary to investigate the political background? It is not either/or, as Progressives like to say nowadays: It’s both/and.

Here’s the interpretative method that has gradually driven me to drink and depression: A SCOTUS justice or Larry Solum or some other very smart person fly-specks some phrase like “the legislature of any State” by running it through dictionaries or corpora of texts or really silly canons like the anti-redundancy canon, all of which are unrelated to the political background of the constitutional or statutory provision in question, to determine whether it is plain or ambiguous AS A CONDITION FOR considering its pragmatic purpose. It strikes me as ludicrous for a judge to consult the political background of a provision only if they can find such a “semantic” ambiguity through means that ignore the political background. That seems to me senseless for the reasons outlined by Baude & Doerfler in their article on the “(Not So) Plain Statement Rule” (discussed and linked here: https://prawfsblawg.blogs.com/prawfsblawg/2017/07/why-the-plain-statement-rule-for-statutory-interpretation-is-normatively-justifiable-but-practically-impossible.html ). It is also a recipe for judicial bad faith, in which justices/judges make up strained grammatical or linguistic arguments all the while really caring about what they should really care about — the spirit of the law, as reflected in the text, yes, but also...the spirit of the law. (For three examples of such judicial bad faith IMHO, see Lockhart v US (https://supreme.justia.com/cases/federal/us/577/14-8358/), Ali v Bureau of Prisons (https://supreme.justia.com/cases/federal/us/552/214/), United States v Hayes (https://supreme.justia.com/cases/federal/us/555/415/).

So I follow a modified version of 2 Corinthians 3:6. The Letter doesn’t killeth unless it excludes the Spirit, but the Letter and Spirit together giveth light. Just wondering if the “New Positivists of Originalism” agree.


Posted by: Rick Hills | Jul 22, 2019 3:08:22 PM

I think it's worth pointing out that the kind of lexical analysis that Rick thinks is overemphasized can be synergistic with paying attention to the political thought of the day.

IMO, that's one of the lessons that emerges from the linguistic analysis (mostly corpus-based) I've been doing of the Second Amendment. The linguistic evidence turns out to be much more consistent with the "civic right" interpretation advanced by, e.g., Saul Cornell than with Heller's "individual self-defense" interpretation. And significant pieces of evidence come from, of all places, etymology -- specifically, the near-total replacement of "bear" by "carry" as the word primarily used to mean, um, 'carry,' and the great extent to which "arms" was used figuratively in ways dealing with warfare and the military.

Studying linguistic history can be a way of studying history history.

Posted by: Neal Goldfarb | Jul 22, 2019 1:06:30 PM

"As Ryan Doerfler persuasively argued (see especially Part I of Who Cares How Congress Really Works?), this lexical ordering makes no linguistic sense: Interpretation of text must be based on “what [the lawmaker] is trying to do” rather than just on “what the [lawmaker] is trying to say,”

"Ryan and Asher, by “pragmatic concerns,” I mean precisely “the consideration of apparent, perhaps hypothetical, intentions, usually discerned from context.”

"Ryan, I think that (1) above means that Parts II and III of your article are actually irrelevant to my argument. I am not urging what you call “eavesdropping“ on actual lawmakers, and I am not attributing any corporate intentionality or agency to any collective body."

Ryan: Thanks. I shall give your article a careful read.

Rick: I don't see how your claims here are reconcilable (whether "the lawmaker" be Congress, some "generic lawmaker", or a particular person). If Ryan's arguments in II and III of his article are sound, moreover, then you seemingly do need them to dismiss the aforementioned charges.

Posted by: KeepcalmandToryon-RIPJohnGardner | Jul 21, 2019 5:45:38 PM

PS: I was urging the other commenter, not Rick, to check out Parts II & III to assuage any "intentionalist fallacy" concerns.

Posted by: Ryan Doerfler | Jul 21, 2019 2:47:53 PM

The basic position is, as Rick says, that practical considerations come in right away because we are always interested in "meaning" in a broad, pragmatic sense, as opposed to a narrow, semantic one. At the same time, as Asher observes, the goal remains identification of *linguistic* meaning, such that if there is no way to hear the language at issue in some way that might otherwise seem to advance some larger purpose, an interpreter can't just ignore that linguistic constraint. I agree with Asher that Bond is a good illustration of Roberts doing exactly that (e.g., his reading effectively erases the relevant definitional provisions of the chemical weapons statute); Holy Trinity is the canonical example. I am not sure whether Rick goes in for, or needs to go in for, Holy-Trinity-style revision -- the "officer" example sounds like domain restriction, but maybe there are cases where he would.

As far as "political evidence" (use this as shorthand for the additional information Rick has in mind), I think the question comes down to whether that is the sort of evidence to which we would or should expect the audience(s) of a legal text to attend. Rick is right that, in the course of figuring out what she was trying to "say," an interpreter inevitably forms a view about what the (hypothetical) author of a legal text was trying to "do." An interpreter could, of course, try do that by attending only to formally enacted documents. But maybe we think it would be implausible or unattractive for her to do so. Here, King is a good example. In that opinion, Roberts implies that he is able to discern the design of the ACA by attending only to the formally enacted text. Now, maybe one could get there looking just at that information. In reality, though, Roberts (and everyone else) was fully aware of all of the "three-legged stool" talk surrounding the ACA, and that political evidence surely informed his reading. Is that good? Bad? It strikes me as sort of implausible that a contemporaneous interpreter could avoid attending such political evidence. On the other hand, if (as seems unlikely at this point) the ACA were on the books 50 years from now, it would seem sort of burdensome for those subject to the ACA then to have to dig out old newspapers. The more I think about it, the more I am inclined to let everything in. There are obviously arguments on the other side though. The challenge for the capacious approach, I think, is to preserve a sense of relative salience (e.g., it will always be tempting to exaggerate the salience of some bit of evidence that seems to speak directly to the question at issue).

Posted by: Ryan Doerfler | Jul 21, 2019 2:45:18 PM

I'm honored that you liked the paper! But I worry that our disagreements are, in fact, more limited than you suggest.

Works of general or political history discuss all sorts of past phenomena with no particular legal consequences, then or now. As they should! Our point in the paper--and here I'm speaking only for myself, though I imagine Will would agree--is that modern lawyers, trying to identify past law, sensibly look to history for far more limited reasons than someone writing works of general history. As a result, they pay outsized attention to far more limited bodies of evidence--particularly doctrinal sources like statutes, cases, or treatises--than would a legal historian, let alone a general historian. Originalism, as we see it, is among other things a claim that the law of the Founding still has present legal force. So identifying old law, for originalists, takes intellectual priority over identifying old policy views, old democratic theory, old political controversies, etc.

(For example, the views of the "Barron contrarians" on the Bill of Rights’ applying to the states are far more legally relevant today because their intellectual descendants helped shape the Fourteenth Amendment. Had that Amendment failed, they'd just be one of many interesting intellectual schools that had idiosyncratic views about the law.)

As I read your critique, this kind of approach is "[c]olorlessly apolitical" because it would "ignore the great partisan disputes about banks, monarchy, natural aristocracy, religion, and public debt and the like, that motivated these texts"--overlooking the bar brawls of history in favor of dry legal analysis.

Focusing on the politics, though, seems to miss the point of all the politicking. Getting to "dry legal analysis" is exactly what political bar brawls are *for*. Interest groups have knock-down drag-out fights in Congress, spending plenty of good money on lobbyists, just so that they can influence dry formalisms like "which words are put into the statute and which aren’t." Victory in the political fight is having your super-controversial policy views become the durably *less*-controversial lawyers' understanding of some lawmaking event.

Doing that dry legal analysis doesn't mean ignoring the bar brawl; it just means valuing the bar brawl for what it tells us about the legal events, and not the other way around. We've written before (in our "Law of Interpretation" piece) about how looking at legal texts solely as pieces of language can get things wrong. Of course we'd need to know what was going on in early-20th-century politics to properly read the Seventeenth Amendment as leaving Senate terms intact, and not as proposing a temporary six-year trial balloon ("The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years..."). But suggesting that the Seventeenth Amendment codified the political aims of the Progressive movement generally, and not just certain individual changes that managed to get through the ratification process, would also be a mistake.

So non-doctrinal sources are fine, and indeed unavoidable. But they can also be misused; these are issues of weight, not admissibility. Marshall did talk a lot about principles, but as evidence of what rule the Constitution had recently provided, not as free-standing norms that operate independently of its historical content. And while the contending sides sometimes compromised by fudging it, not everything that looks ambiguous to us was equally ambiguous back then--and when it was, it's our job to apply the fudge as best we can. As we note in the paper, "Ordinary business contracts are hardly 'air-tight,' ... but we write them anyway: the parties’ choice to adopt an integrated agreement is a choice to rest their legal relations on contested inferences drawn from a single piece of text."

Separately: I do think we disagree somewhat on jurisprudence. I understand you to read Hart, as glossed by Shapiro, to describe "the 'internal point of view on law' as "the attitude of someone who accepted some system of rules as not merely prudentially, but also as normatively, binding." If the Jeffersonian/Madisonian view of "private banking corporations as threats to republican equality" was a "norm[] to guide conduct that the elites of a system might recognize as binding," then "the theory that Congress lacked the power to grant charters to private corporations was no less 'law' in antebellum America than the statements found in treatises and the like."

Could this be a quantification error? Speaking broadly, Hart says the law is identified by a particular social rule among legal officials, toward which they adopt the internal point of view--not that *everything* identified by *some* social rule among officials, toward which they adopt the internal point of view, is the law. Federal judges have a social rule of wearing black robes, which is a rule of judicial etiquette rather than a legal command: legal actors take it as a guide to conduct and a standard of behavior within some domains but not others. (Federal judges also play chess, but that doesn't make the rules of chess into American law.) One good way--though not the only way--to tell if a rule is taken as a guide to conduct in the legal domain in particular is to see if it shows up in conventional legal sources used by courts and lawyers. Maybe Jacksonian officeholders thought banks were awful and antidemocratic, and maybe that belief was socially required of good Jacksonians, but I don't see much evidence that they took it as "part of American constitutional law" in the Supremacy Clause sense. (Could Congress not have chartered banks within D.C.?) It might have *informed* their views of other things that they *did* understand as law: the principle that the Constitution doesn't hide elephants in mouseholes depends on views about what's an elephant and what's a mousehole, and ditto which powers turn out to be "great substantive and independent" or merely "incidental" for Necessary-and-Proper purposes. But, again, this is about weight rather than admissibility.

(On whether taking the internal perspective means treating rules as normatively binding, I had read both Hart and Shapiro's gloss quite differently. Shapiro argues that "the internal point of view is not the moral point of view," and he describes Hart as "quite clear that one does not have to believe in the moral legitimacy of the law in order to accept its authority" from the internal point of view: "For Hart, people can have any number of reasons for accepting rules. They may be guided by a rule because they think that it is in their long-term self-interest to be so committed. Judges might apply the law simply in order to pick up their pay checks." Instead, taking the internal point of view toward a rule only requires a certain disposition to use the rule as a guide to future conduct and a standard of behavior for oneself and others. This creates an even broader category of social rules toward which people take the internal point of view, making it more important to distinguish which of these social rules turn out to identify rules of law. We have a draft work-in-progress discussing some of these issues further, as well as questioning the limitation of the recognitional community to officials--would be happy to send along!)

Posted by: Stephen E. Sachs | Jul 21, 2019 2:13:34 PM

Ryan reminds me to be wary of “internationalist fallacy” and urges me to read Parts II and III. Asher suggests that I am misusing the term “pragmatic.” Both are misunderstanding my post, a misunderstanding that I attribute to my own lack of clarity. So let me try again.

1. Ryan and Asher, by “pragmatic concerns,” I mean precisely “the consideration of apparent, perhaps hypothetical, intentions, usually discerned from context.” That context includes social and political context readily available to a well-informed member of society, but it does not include — or at least, does not give special force to — the actual subjective intentions of actual lawmakers. (We profs in statutory interpretation sometimes call the former “purposivism” and the latter “intentionalism”). Pragmatic factors, purposivism, or what traditionally known as the “mischief rule” all indicate roughly the same idea in my lexicon: The interpreter should read text in light of its apparent purpose as understood by a well-informed member of society familiar with the social, cultural, political context of the words and the likely mischief that the words seem plainly adapted to remedy.

2. Ryan, I think that (1) above means that Parts II and III of your article are actually irrelevant to my argument. I am not urging what you call “eavesdropping“ on actual lawmakers, and I am not attributing any corporate intentionality or agency to any collective body. I am merely asking Baude and Sachs and other originalists to pay attention to the political and social context known to what you call a “generic lawmaker” in 1787-1789. Paying attention to such context means paying attention to worries about closet papists, bankers’ conspiracies, military coups, and a whole lot of matters not related to the linguistic usage of words and phrases outside

3. Asher, I think that you misunderstand the radicalism of Ryan’s critique of the plain statement rule. So let me re-state Ryan’s position as I understand it and then let Ryan correct me.

In both the article I cited above and his “High Stakes Interpretation,” Ryan urges that pragmatic (purposivist, “mischief rule” considerations) play a role in interpretation right away, even with apparently unambiguous text. He is rejecting, in other words, the lexical priority assigned by scholars like Larry Solum to acontextual linguistic usage over such political, cultural, social context. So he is actually rejecting your view that pragmatic concerns only come into play “to disambiguate semantically ambiguous texts or utterances, and to enrich semantically unambiguous ones in ways that are consistent with patterns of usage.” Even when confronted with apparently unambiguous terms — that is, terms that have plain propositional content

Let me give you a specific example to make the radicalism of Ryan’s position plain. Suppose that we are trying to figure out whether or not “officer of the United States” in Article II includes “low-level officers with ministerial duties.” Suppose that we canvas hundreds of contemporary textual sources — dictionaries, newspapers, and the like — and discover that the term “officers” does indeed encompass such low-level ministerial positions in common linguistic usage. I understand Ryan to be arguing that, despite the propositional clarity of the term “officers,” we should still considera the practical function served by Article II’s rules on appointment of federal officials, as that function was understood by the “generic lawmaker” in 1789. What mischief would this hypothetical lawmaker imagine this provision to address? In particular, would this hypothetical lawmaker regard Article II as a limit on Congress’ Necessary & Proper power to limit presidential powers of patronage by, for instance, requiring civil servants to pass an exam or to meet other qualifications limiting the President’s or cabinet officers’ appointment powers?

Under the conventional rule of lexical priority for “textual” sources regarding linguistic usage adopted by originalists like Larry Solum, considering all of this “pragmatic” stuff about the practical purpose of defining the appointment of executive officials would be foreclosed by the textual clarity of the term “officers.” But Ryan would argue that such “pragmatic” stuff should always be consulted, even for words with apparently “plain” propositional content. That is, conceding that we should NOT “eavesdrop” — i.e., privilege the statements of actual lawmakers — we should ALWAYS pay attention to the practical consequences of text, as those consequences would be understood by the generic lawmaker.

4. Here’s what I am adding to Ryan’s account, as a challenge to Baude and Sachs: Once one takes account of such practical consequences even for apparently unambiguous text, one really has to pay attention to a lot of non-legal material that Baude and Sachs seem to want to exclude.

Ryan, does (1)-(3) above correctly state your views? And, if so, why does not (4) follow?

Posted by: Rick Hills | Jul 21, 2019 10:50:55 AM

I think it would help, Rick, if you distinguished between the actual *judges and justices* who purport to be "originalists" or textualists, and the (very small) handful of scholars pushing a theory of original public (semantic) meaning of the text, denuded from the sorts of cultural/political considerations you identify. The former--the Clarence Thomasas and Neal Gorsuchs of the world--don't hide the fact that they're purporting to do something like what you prefer (doing it very badly, mind you, but still), something that doesn't much differ from good ol' "original expected applications" originalism. No jurists in the United States come anywhere close to doing what the academic OPM originalists prescribe. The function of the latter, then--deliberately or not--is simply to give some sort of cover (of "objectivity," "repose," judicial humility, intellectual rigor, what have you) to the very different practice of so-called "originalism" that infects the opinions that Justices actually write. As Mike Dorf put it, the “new originalists" in the academy “make originalism respectable by answering objections leveled at ‘expectations based originalism’— but judges, elected officials, and the public misuse the credibility that these scholars lend to to originalism more broadly by relying on evidence about the framers' and ratifiers' expected applications in considering concrete cases."

More to this effect here, w/reference to Thomas's recent plea to abandon NYT v. Sullivan:

https://balkin.blogspot.com/2019/02/justice-thomas-and-nyt-v-sullivan-old.html

Posted by: Marty Lederman | Jul 21, 2019 6:41:06 AM

I'm not sure you quite understand what Doerfler is talking about when he talks about pragmatics, or that you understand the technical linguistic meaning of the term semantics. (I may be drawing from past posts or offline conversations when I say this, but I do think the misunderstanding is apparent from what you say above.) Pragmatics doesn't mean pragmatism, or "purpose"; it's a linguistic term of art that means, very (very) roughly, the consideration of apparent, perhaps hypothetical, intentions, usually discerned from context, to disambiguate semantically ambiguous texts or utterances, and to enrich semantically unambiguous ones in ways that are consistent with patterns of usage. Everything that Doerfler's doing under the headings of pragmatics is, I believe, what you would call semantics.

For example, the very first example in his paper is of the War Powers Resolution, which says that the President must terminate hostilities within sixty days unless "the Congress has declared war." The purely semantic meaning of that phrase is not restricted to the hostilities in question and is satisfied by any past declaration of war, but there's a well-known linguistic phenomenon, quantifier-domain restriction (though this isn't exactly quantifier-domain restriction), where people use semantically broad phrases to refer more narrowly to the matter at hand. For example, "have you talked to everyone/anyone" is often used to mean "everyone/anyone at this party," and is hardly ever, in fact, used to mean literally everyone or anyone in the world. I suspect that you would describe evidence of that phenomenon as "evidence of purely semantic usage," but that is flat wrong, by most linguists' lights, or Doerfler's. It's precisely what's meant when they talk about pragmatics. The following is perhaps a more tendentious claim, but it's my view that what distinguishes the very traditionally textualist project of pragmatics from what you're talking about is that every interpretation that someone like Doerfler would license is in fact consistent with some pattern of usage, just not always a semantic one, while you would license interpretations that aren't consistent with any usage pattern in pursuit of purpose.

For example, the Chief Justice makes a purposivist argument in Bond to the effect that Congress just wasn't worried about lethal household chemicals when it passed the Chemical Weapons Convention Implementation Act, citing, inter alia, John Singer Sargent paintings of chemical warfare in World War I to get at what Congress really meant to cover. He's very possibly right about that. But that isn't an argument that sounds in pragmatics in the linguistic sense. For there just is no observable phenomenon of people using language like the definition of chemical weapon in the statute, which reads "any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals," to mean "just stuff like sarin gas," as Roberts would read it to mean -- not in a literal semantic sense, of course, but also not in a non-literal sense either. This can be easily seen; it's perfectly coherent, to the point of being rather obvious and pedantic, to say "have you talked to anyone, by which I mean, anyone at this party," but it's just internally contradictory nonsense to say "I forbid the use of any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animal, by which I exclusively mean any chemical [quoting Roberts] of the sort that an ordinary person would associate with instruments of chemical warfare." That is like saying, "you will not let Johnny swim in any body of water, by which I mean, and only mean, the Atlantic and Pacific Oceans." There *are* certain restrictive usages of "body of water" that exclude ponds and so forth, but that isn't one of them.

Posted by: Asher Steinberg | Jul 20, 2019 11:44:46 PM

Very interesting. Just two point to make here:

First, we deal with the " law " and what is the law, and tend to forget, that the law is rather " case " over law. The law is typically meaningless without a case ( in court, or conflicting situation in life ). So, methodology of interpreting the law, meant to serve as a tool for prevailing a given concrete case, not merely for philosophical theoretical debate. One can't steal the property of the other or of his brother. But, typically it has no meaning ( if you are normal person ) until a case is formed. Just pending provision. The case consolidates the law and grants it effective meaning. So, only if you would " steal " the wired line of the telephone of the other or of your neighbor , and make phone calls on his back or at his expenses, a case would be formed, and the court shall have to decide, whether it is a "theft "like shoplifting something, or maybe it has unique feature, rendering it some sort of fraud or alike, not stealing something in conventional terms.

And, beyond the argument of stability ( what originalists and formalists seek ) one may argue that, in time, all along history, more and more laws and legal texts, and jurisprudence, accumulate. Population grows in size, becoming more diverse. Technology evolves, and affects and complicates the law more and more in time. International norms, also become more and more influential. As such, burden grows, and as well complications. So, naturally, one needs to " travel " more and more deeper in " tunnel of time " to find more and more effective meaning, for more and more complicated issues. So, resulting in longing for more and more stability paradoxically.

By the way, the ruling( itself ) of Hylton v. Us, can be reached here:

https://cdn.loc.gov/service/ll/usrep/usrep003/usrep003171/usrep003171.pdf

Thanks

Posted by: El roam | Jul 20, 2019 4:18:06 PM

"Why doesn't this run afoul of (a) the intentional fallacy and (b) the fallacious attribution of intention to a GROUP (e.g., Congress)? The latter matter has been challenged a lot of late (i.e, whether a group is the sort of thing that can actually have an intention), but it does not solve the problem of how others (interpreters/readers) can (accurately, let alone at all) discern that intention or purpose."

Go on to read Parts II & (esp) III!

Posted by: Ryan Doerfler | Jul 20, 2019 4:11:30 PM

"Nothing whatsoever about this “internal”/“external” distinction has anything at all to do with the distinction between conventional legal materials addressed to courts and ideological or even partisan materials addressed to the public at large outside of courts"

"More generally, to the extent that modern law today borrows from laws enacted in the past, modern law must take account of the partisan and cultural movements that formed part of the normative basis for elites’ internalizing those laws as guides for their conduct."

1. I think part of the problem here is that Hills misunderstands the scope of B&S' "internal point of view" claim here. (Though, concededly, it may perhaps be I instead who does). For it seems to be delimited to officials for their argument's purposes. All (or many, or at least some critical mass of) subjects of a legal system may harbor an internal point of view about its laws. The rule of recognition, by contrast, concerns a master norm: a social rule, harbored by the system's officials (claims Hart, though he seems by the 1980s to have conceded to Raz that there may actually be quite a few such rules), which provides the criteria for what counts as valid law within the legal system. Such rules include a system's interpretive rules, e.g., the canons of interpretation. The internal point of view HERE, it seems, simply concerns that of officials vis-à-vis the rule of recognition. Officials' partisan beliefs and commitments about certain matters do not (cannot?) form part of the rule of recognition, lest it not be able to count as a master NORM, which is SHARED by all of the officials. They are instead simply additional beliefs certain officials bear.

If this interpretation of B&S' stance is correct (or not a correct interpretation, but just independently sound), then it serves to exclude the sort of materials Hills takes to be problematic for Originalists. One need not take account of partisan disputes in the past, for example, as they do not (and did not) form part of the criteria for legal validity, and how officials perceive that criteria - their internal point of view about it, as a norm that guides their conduct in understanding what actually counts as the law within their system. (On the other hand, the same point also serves as a basis for incredulity about Hart's very theory of a "rule of recognition," or at least in regards to the idea that such (a) master rule(s) govern(s) all aspects of legal validity within a system).

"As Ryan Doerfler persuasively argued (see especially Part I of Who Cares How Congress Really Works?), this lexical ordering makes no linguistic sense: Interpretation of text must be based on “what [the lawmaker] is trying to do” rather than just on “what the [lawmaker] is trying to say,” such that consideration of practical circumstance is built into any interpretation of text from the outset."

2. Why doesn't this run afoul of (a) the intentional fallacy and (b) the fallacious attribution of intention to a GROUP (e.g., Congress)? The latter matter has been challenged a lot of late (i.e, whether a group is the sort of thing that can actually have an intention), but it does not solve the problem of how others (interpreters/readers) can (accurately, let alone at all) discern that intention or purpose. Here, what Congress is trying to do: its reason for passing the particular piece of legislation, or, rather, the reasons driving the inclusion of the particular content within their legislation.

"To the extent that those ideological motivations were voiced as part of the reason for the rule, THEY ARE PART OF THE RULE just as surely as old dictionaries and corpora of contemporary texts that use the phrase “general welfare.” (emphasis added)

3. This just begs the question.

"The Federalist and Anti-Federalists managed to create a document together only by ducking the biggest issues with abstractions and ambiguities, strategically deferring fights that could have doomed the whole project of Union."

4. Methinks this actually undermines your case somewhat for the inherent (political) tendentiousness of the Constitution's content.

Posted by: KeepcalmandToryon-RIPJohnGardner | Jul 20, 2019 3:47:01 PM

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