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Wednesday, October 02, 2019

How Should Article VII’s Ultimatum Game Affect Constitutional Interpretation?

Suppose that you accept the originalists’ premise that 18th century linguistic norms ought to determine the communicative content of American constitutional words and phrases. Which 18th century norms should you use, if 18th century speakers disagreed about the applicable norms? As Jack Rakove has noted, the Constitution was ratified during Revolutionary times when the meaning of words were in flux. What if 18th century Americans were in ferocious disagreement with each other about how to read constitutional text?

I have recently posted a draft article arguing Article VII of the U.S. Constitution defined a revolutionarily new legislative process with interpretative consequences. That Article VII process amounted to a one-shot Ultimatum Game. The essence of this Ultimatum Game was that Federalist proposers who drafted a proposed Constitution in a secret Philadelphia Convention sent it for an up-or-down vote to state ratifying conventions where amendments to the proposal were forbidden. Anti-Federalists dominated several important ratifying Conventions (in particular, Massachusetts, Virginia, and New York), and they bitterly resented the Article VII process, complaining that the process amounted to (using their oft-repeated phrase) “cramming the Constitution down our throats.” As modern political science notes, such a process gives the proposer a decisive advantage over the ratifiers whenever the ratifiers’ preferences lie somewhere between the status quo and the proposers’ preferences. The further the ratifiers’ preferences are from the status quo to which the situation will revert if the proposal is rejected, the greater the proposers’ power to cram a proposal down the ratifiers’ throats that the ratifier dislikes. Because Anti-Federalists generally hated the Articles of Confederation (albeit not as much as the Federalists), they would theoretically hold their noses and approve any proposal that they really, really disliked to avoid reversion to the dreaded anarchy of the Articles.

What interpretative conventions ought to accompany a document ratified through such a process? In the article, I suggest that the Federalists deliberately adopted a stance of presuming that contested constitutional terms were ambiguous in order to assuage Anti-Federalist resentment over Article VII. Especially during the Massachusetts ratifying convention and thereafter, two standard Federalist talking points were that (1) popular ratification through state conventions required a proposal filled with vague language but (2) Anti-Federalists would have equal odds of influencing the interpretation of ambiguous phrases after ratification. This ratification strategy suggests an interpretative convention: When in doubt, construe constitutional phrases to be strategically (meaning deliberately) ambiguous. As originalists generally agree, strategically ambiguities cannot be resolved by looking to facts contemporary with ratification such as linguistic usage or shared constitutional purposes. Instead, the legal meaning of strategic ambiguities must be resolved through constitutional “construction” using post-ratification materials.

After the jump, I have provided some answers to FAQs I’ve encountered when discussing this idea with colleagues. The broad take-away, however, is that the contested character of Article VII really matters to originalism. One cannot figure out what norms should apply to any linguistic artifact — a novel, a card game, a love letter, an elevator pitch, a treaty, a statute, etc. — until one investigates the process that produces that artifact. The Article VII process suggests IMHO that the right linguistic norm is a presumption of strategic ambiguity, but, even if you reject that position, you really need to take Article VII’s contested character into account when devising one of your own.


1. Don’t originalists already take into account the special character of the Article VII ratification process when interpreting the Constitution?

Nope. Most simply ignore the distinction between ordinary legislative processes and the U.S. Constitution’s Article VII. Sometimes they ignore these distinctions eve when they are drawing inferences from how ordinary legislative processes work to interpret the Constitution.

Consider, for instance, Dean John Manning’s argument that constitutional text should, when unambiguous, be taken to exclude unwritten constitutional purposes that cannot find a home in text. Dean Manning draws on the familiar idea that the specific wording of a statute memorializes compromises between rival interests, each of which has the power to block the statutory bargain. To enforce a single purpose of the statute beyond the specific text is to subvert these bargains.

The problem with Dean Manning’s analogy of the U.S. Constitution to statutes is that the Article VII ratifying process bears no resemblance to the process by which a statute is drafted and enacted. The state ratifying conventions — the “legislature” for the U.S. Constitution — had no power to bargain over specific text, because Article VII did not permit any amendments. Moreover, the members of the Philadelphia drafting convention pretty much came from a single faction — the “Federalists,” based in Tidewater plantations near the coast or major trading cities like New York and Boston —so they could not bargain with their major rivals in the western hinterland, dubbed “Anti-Federalists” by their Federalist opponents.

On the most important questions dividing Americans, therefore, Dean Manning’s argument for textualism is defeated by the simple facts if the Article VII process: Contrary to Dean Manning, there could be no specific horse-trading over text in the ratification process. Dean Manning overlooks this point when he argues that unambiguous words exclude consideration of extra-textual purpose only because he simply ignores Article VII’s unique and hotly contested character.

2. Ah ha! You concede that sometimes constitutional words can be “unambiguous”! Surely, you agree that such clarity should preclude post-ratification sources, right?

The problem with classifying text as either “ambiguous” or “plain” is that it often ambiguous whether or not text is ambiguous. Sometimes plausible semantic, grammatical, or purpose-based arguments can be marshaled on either side of a disputed question. Whether or not such a conflict among sources amounts to a genuine ambiguity cannot be resolved without some canon for determining how hard one should work to determine whether or text is “plain.” In a context where speakers ordinarily expect each other to be suspicious and cagey with their words, it makes no sense to flyspeck millions off sentences from such corpus of texts to figure out the “correct” usage, because even marginal usage might be “correct enough” to create a genuine dispute about meaning.

The presumption of strategic ambiguity defense din my article suggests that the players in the constitutional debates over ratification adopted a stance of suspicious mistrust towards each other about linguistic arguments. Article VII’s Ultimatum Game was a big source of that distrust.

3. How do you know that Federalists wanted to placate Anti-Federalists by conceding the ambiguity of the proposed Constitution?

Because the Federalists repeatedly said so. In my article, I examine a lot of instances in which the Anti-Federalists accused the Federalist proposers of submitting an excessively ambiguous document for ratification. One of the most common Federalist responses was to concede the ambiguity but reassure critics that those ambiguities could be cleared up later, after ratification. I call this response “the Randolph Strategy” after Edmund Randolph, the governor of Virginia, Philadelphia drafter but non-signer, delegate to the state ratifying convention, reluctant Federalist, and first Attorney General who pressed this position most aggressively.

Randolph was in a good position to adopt this stance, because he had initially refused to sign the Constitution at Philadelphia, citing the unfairness of the Article VII Ultimatum Game. After Randolph’s proposal for a second convention was rejected by the Philadelphia drafters, Randolph initially adopted a stance of hostile neutrality towards the proposed constitution. (His objections were widely circulated among Anti-Federalists). In response to George Washington’s pleas, however, he adopted a stance of moderate support: He conceded that the Constitution was dangerously ambiguous on important questions like the scope of Congress’ powers but argued that those ambiguities could be cleared up through political means after ratification.

Note that the Randolph Strategy fits what we know about responder psychology when confronted by Ultimatum Games. In theory, responders ought to accept even minimal payoffs when confronted with a one-shot offer where the alternative is reversion to a hated status quo. In practice, however, the experimental evidence unanimously suggests that responders reject Ultimatums that give them small shares of the gains from a change from the status quo. The apparent unfairness of letting the agenda-setter call all the shots overwhelms any rational self-interest.

The Randolph Strategy recognized that, if the Federalists attempted to ram a detailed proposal down the Anti-Federalist throats by wielding Article VII’s reversion threat, then the Anti-Federalists might rebel by scuttling the whole proposal. Rather than risk such a disaster, the Federalists adopted a placating tone, conceding linguistically unresolvable ambiguities and inviting the Anti-Federalists to clear them up after ratification using political power rather than interpretative tools.

4. But was there not compromise already built into the original constitution as drafted in Philadelphia?

Yes — but those compromises did not address the objections of Anti-Federalists, because Anti-Federalists simply were not present at the Philadelphia drafting convention in significant numbers, and so Federalists drafters did not know what the Anti-Federalists (especially western and back-country Anti-Federalists) wanted. Most of the compromises debated in that long hot summer of 1787 concerned slave-based versus non-slave-based economies and small versus big states. Neither of these disputes had anything much to do with Anti-Federalists’ worries about East versus West or the anger of over-centralized power’s being used to advantage seaboard cities and their merchants over the back-country.

5. But why not use “original methods” of interpretation to clear up constitutional ambiguities, as urged by Rappaport and John McGinnis?

Because those “original methods” defended by Rappaport and McGinnis were themselves hotly contested. As Saul Cornell has powerfully argued, attitudes towards legal interpretation, lawyers, and judges varied enormously among framers and ratifiers. Extreme Federalists like James Wilson exulted in legal erudition and the special status of lawyerly canons. But back-country Anti-Federalists deplored the dark arts of legal sophistication and inveighed against lawyers as the lick-spittle servants of the rich and powerful. Given the prevalence of distrust towards lawyers and judges, it was impossible for Federalists to make much headway with the argument that constitutional ambiguities could eventually be cleared up by relying on lawyerly expertise. Precious few ever made such claims. Instead, even really sophisticated lawyers like Oliver Ellsworth argued that the Constitution’s meaning did not depend on lawyerly methods but was instead a document written in necessarily ambiguous terms so that it would not be too detailed to be understood by laypeople.

6. Are you saying that constitutional terms have no meaning at all?

No: I argue only that constitutional terms define a very, very broad zone of ambiguity within which originalist sources are mostly useless. Of course, there are outer limits to the meaning that even ambiguous terms can support. “Commerce” in Article I, section 8, might mean only economic exchanges for the buying and selling of goods and services, or maybe (pace Randy Barnett) it extends to cultural and social exchange such as the migration of persons across national borders, as argued by Jack Balkin. But even Balkin and Barnett can agree that, read in context, it does not include prayer or marriage. Likewise,”domestic violence” in Article IV might refer to a broad and uncertain range of disturbances of the civil peace, but it likely does not extend to violence committed by one spouse or domestic partner against another.

The presumption of strategic ambiguity implied by Article VII implies only that when respectable “originalist” arguments can be marshaled on either side of an interpretative dispute, then the interpreter should declare a tie and rely on post-ratification sources to resolve that dispute. “Respectable” does not mean “correct” or even “most persuasive”: Even if one argument based on linguistic sources might be somewhat better than others, if there are plausible grounds for accepting a rival argument, then one should concede an ambiguity rather than attempt to resolve the difference by weighing the balance of the linguistic evidence. Even a somewhat improbable but nevertheless plausible argument could be accepted in an atmosphere of deep suspicion created by Article VII’s Ultimatum Game. The Randolph Strategy did not try to rebut each such far-fetched argument but instead conceded ambiguity and reassured skeptics that such ambiguities could be controlled politically after ratification.

7. So you are arguing that the Federalists were tough-minded enough to propose an Ultimatum Game but softies when it came to conceding ambiguity? I don’t buy it.

Yep, that’s exactly what I am arguing. As for evidence — read the article and tell me what you think! That’s shameless self-promotion, of course, but ultimately I hope that the evidence I’ve marshaled will carry the day with the average reader. So I’d really like to know whether or not I’ve convinced you.

Posted by Rick Hills on October 2, 2019 at 10:16 AM | Permalink

Comments

jph12 writes: “The Federalists did not find themselves in a predicament. They made one,” by creating the Ultimatum Game of Article VII.

More shameless self-promotion from yours truly: Read pages 56-58 of my draft. The Federalists argued — I think, credibly, but resolving that question conclusively would require far more historío graphical firepower than I can deploy — that they had no choice but propose an unamendable proposal, because otherwise deliberations would stretch on forever, and nothing would ever be decided.

In general, there is a trade-off between deliberative inclusiveness and efficacy in drafting. The Federalists acted reasonably inputting forward a proposal when no other group was capable of unified continental-scale action. I argued that there is no reason to deploy a canon used for construing , say, insurance contracts to a proposal that had to be drafted by the only group sophisticated and unified enough to put a draft constitution on the table. But you should read those three pages and judge the argument for yourself.

Posted by: Rick Hills | Oct 4, 2019 12:10:50 PM

But the Federalists didn't find themselves in a predicament. They made one. Not only did they arguably exceed their mandate in proposing an entirely new constitution rather than amending the existing Articles of Confederation, but they drafted Article VII. They were the ones who decided that there couldn't be any amendments during the ratification process. You seem to recognize this by saying that they created a one-shot Ultimatum Game.

So I see little justification in abandoning long standing principles of interpretation just to favor the Federalists. While the Constitution might not be a contract, it's certainly analogous to one in many ways. And the reasons why ambiguities are resolved against the drafters of contracts are rooted in basic principles of equity. I see no no reason why they shouldn't apply with equal force to constitutions.

Posted by: jph12 | Oct 4, 2019 11:10:22 AM

jph12 writes:

“Why shouldn't the ambiguity be resolved in favor of the anti-Federalists instead where there is support for both sides? Isn't resolving ambiguities against the drafter a basic, and long standing, principle of contract interpretation?”

Because the Constitution was not a contract. Or a treaty. Or a statute. Or any number of other legal documents for which there were basic, longstanding principles of interpretation. It was a unique document enacted with a unique process to which those old principles were not necessarily applicable.

And (to continue a theme of shameless self-promotion in search of downloads), see page 61 for a discussion specifically of why contra proferentem should not be applicable (pace Tucker St. George).

Posted by: Rick Hills | Oct 3, 2019 7:45:00 PM

"The presumption of strategic ambiguity implied by Article VII implies only that when respectable “originalist” arguments can be marshaled on either side of an interpretative dispute, then the interpreter should declare a tie and rely on post-ratification sources to resolve that dispute."

Why shouldn't the ambiguity be resolved in favor of the anti-Federalists instead where there is support for both sides? Isn't resolving ambiguities against the drafter a basic, and long standing, principle of contract interpretation?

"“High Federalists” like Fisher Ames and Elias Boudinot did not believe that Congress was limited to exercising only those powers specifically enumerated. Instead, they believed that Congress could enact any law necessary for insuring the federal government’s effectiveness and independence from foreign powers. They were not averse to citing the Preamble as a justification for this view. Such a view would easily encompass most modern federal statutes, including the controversial ones like the ACA."

Is there any evidence these views were widely shared among the people who ratified the Constitution? Otherwise this seems like you are drifting back into original intent territory.

Posted by: jph12 | Oct 3, 2019 12:42:08 PM

Asher writes:

“Why wouldn't it be the case that the ‘very, very broad zone of ambiguity’ provisions of the original Constitution have as a result of the Article VII process and representations made to anti-Federalists is bounded, roughly, by the Federalists' preferred reading and the reading the Anti-Federalists would have preferred? …. If that's so, I just wonder what bearing this very clever and plausible argument has on contemporary disputes…?”

Asher, I think I agree with your premise but not the conclusion. That is, I agree that an exercise of power that fell outside a limit accepted by Federalists and Anti-Federalists alike would be precluded by original public meaning of the Constitution’s terms.

But I doubt that such consensus-based limits would preclude much modern legislation. The reason is that at least some Federalists seemed prepared to accept very, very broad readings of federal power. Take, for example, Congress’ Article I powers. “High Federalists” like Fisher Ames and Elias Boudinot did not believe that Congress was limited to exercising only those powers specifically enumerated. Instead, they believed that Congress could enact any law necessary for insuring the federal government’s effectiveness and independence from foreign powers. They were not averse to citing the Preamble as a justification for this view. Such a view would easily encompass most modern federal statutes, including the controversial ones like the ACA.

Likewise, most Federalists wanted federal courts to have broader powers to protect creditors and enforce treaties than most Anti-Federalists, but they did not want federal courts to have unlimited powers to hear and resolve any sort of complaint. So a federal judge’s assertion of powers that would have been rejected by Federalists would ipso facto fall outside the consensus purposes defining Article III, sections 1 and 2. But what exactly were those consensus purposes? Hard to say. The Scottish Court of Sessions exercised broad powers to hear cases brought on behalf of the general public during the 18th century. Drafters and ratifiers like James Wilson who were heavily influenced by Scottish practice might readily accept a very broad definition of litigants’ standing to sue in Article III courts.

So I predict that, even taking into account commonly shared views of constitutional limits in the 18th century, those views won’t do much to help resolve modern disputes about the scope of federal power. Those views define a broad zone of ambiguity into which most of our contemporary disputes fall, so resolving those disputes will require “construction,” not reliance on original facts about linguistics or purposes.

Posted by: Rick Hills | Oct 3, 2019 3:53:15 AM

I look forward to reading this article. I do have a question. Assuming your whole argument is correct, more or less, why wouldn't it be the case that the "very, very broad zone of ambiguity" provisions of the original Constitution have as a result of the Article VII process and representations made to anti-Federalists is bounded, roughly, by the Federalists' preferred reading and the reading the Anti-Federalists would have preferred? I am entirely clueless when it comes to what any participant in the drafting or the ratification of the Constitution thought about anything the Constitution said, so the following may well be purely hypothetical, but assuming it were the case that the Federalists' preferred understanding of the Interstate Commerce Clause was broad enough, but somewhere well shy of Wickard, and that the reading the Anti-Federalists hoped would prevail post-ratification was much narrower (that much I suspect is not hypothetical), can you leverage the assurances of ambiguity the Federalists made to the Anti-Federalists to read the clause as ambiguous between any barely semantically permissible reading, including some that both the Federalists and Anti-Federalists would reject? Isn't the whole point of these promises of ambiguity, very roughly speaking, to promise that the Constitution was amenable to being construed to grant the federal government relatively little power, not to suggest that the Constitution could be read to authorize anything like the federal government of today? If that's so, I just wonder what bearing this very clever and plausible argument has on contemporary disputes, and whether it doesn't just boil down to saying that originalists are more free than they suppose, but only in the sense that the Constitution permits much more aggressively small-federal-government interpretations than they've yet to seriously contemplate.

Posted by: Asher Steinberg | Oct 3, 2019 12:20:39 AM

Benjamin Fischer asks:

“1. Does your ambiguity thesis extend to every term in the Constitution, or only some terms? It might be the case that only certain terms in the Constitution were strategically ambiguous. The habeas corpus clause, for example, uses a legal term of art.

“2. Does your ambiguity thesis apply to amendments to the Constitution? Amendments to the Constitution had a very different ratification structure where the asymmetric thesis does not apply. If not, how do we reconcile amendment interpretation with main text interpretation?”

First, hi Benjamin! Nice to hear from you!
Second, the question of whether or not a clause contains legal terms of art is itself often — I’d say usually — an ambiguous question. Consider, for instance, the debate on the floor of the Virginia ratifying convention on whether “ex post facto” was a technical legal term or a layperson’s term. As Saul Cornell notes, there were multiple legal cultures in the colonies, ranging from backwoods popular lawyers who based “law” on rhetoric prevalent with their neighbors to middling lawyers conversant with Blackstone and little else, to elite lawyers like James Wilson with university educations and quotes from Vattel and the like. These groups disagreed about whether or not a term should be read as a term of art.

Third, the argument doe snot apply in the same way to amendments, because the Congresses that proposed them often could make deals among interest groups in ways that the Philadelphia convention, meeting in secret and containing really only Federalists, could not.

Posted by: Rick Hills | Oct 2, 2019 8:13:51 PM

As a former student, Professor Hills, I want to say reading your paper was a pleasure, and you make a compelling point about the interpretive norm about the enactment process. I do have a few questions.

1. Does your ambiguity thesis extend to every term in the Constitution, or only some terms? It might be the case that only certain terms in the Constitution were strategically ambiguous. The habeas corpus clause, for example, uses a legal term of art.

2. Does your ambiguity thesis apply to amendments to the Constitution? Amendments to the Constitution had a very different ratification structure where the asymmetric thesis does not apply. If not, how do we reconcile amendment interpretation with main text interpretation?

Posted by: Benjamin Fischer | Oct 2, 2019 4:57:05 PM

Interesting. You claim that, I quote:

" One of the most common Federalist responses was to concede the ambiguity but reassure critics that those ambiguities could be cleared up later, after ratification. I call this response “the Randolph Strategy”....... "

But I couldn't understand, in what way exactly could be done ( even theoretically ). How could it be cleared up later ? In light of the Supremacy, and rigidity of the constitution ( naturally) such reassurance, is very suspicious. In this regard, I am pretty convinced.

Thanks

Posted by: El roam | Oct 2, 2019 4:07:33 PM

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