October 27, 2007
A couple of weeks ago, Randy Barnett (Georgetown) was in town and gave an illuminating, synoptic presentation about the "new originalism," of which he is one of the leading proponents. I have written before about the peculiarity that originalism is so widely embraced, notwithstanding the absence of a theoretical justification for its authority. That charge is misplaced against Barnett, since his theory--as set out, e.g., in his 2004 book Restoring the Lost Constitution--has the correct theoretical structure any credible account of constitutional interpretation should have (yet, remarkably, a structure most of them don't even acknowledge as required!). So, from a philosophical point of view, this makes Barnett's contribution to the debate of particular interest. Before turning to what I learned from Barnett's presentation, let me set the stage for the general problem.
When it comes to constitutional interpretation in the United States, certainly at the highest appellate levels (where precedent imposes the least constraint), there is no convergent practice of behavior by judges: they tend towards opportunism (a point famously captured in my colleague Philip Bobbitt's 1982 book on Constitutional Fate, though that was not his primary aim). Sometimes they will appeal to original intent, sometimes to original meaning, sometimes to structural considerations, sometimes to plain meaning, sometimes to animating moral principles, and so on.
There is, then, often no legal obligation to read the Constitution one way rather than another in the U.S. A defense of originalism is, then, in the American context necessarily a theory about what judges (morally) ought to do, and, as such, it must be grounded in some broadly moral considerations. The most pertinent of these, within the liberal political framework that I will take for granted here, will be those that bear on the question when courts are justified in exercising authority over individuals or when they are justified in bringing the coercive power of the state to bear against individuals. (Dworkin, of course, thinks this last question is decisive about the nature of law, but he is mistaken about that for reasons we do not need to belabor here.) For purposes here, I'm going to treat the two questions as interchangeable. (Maybe there is a reason I shouldn't?)
I'm not going to pretend that I can give an accurate summary of Barnett's overview of the literature; to the extent I get things right, readers may assume I recorded Barnett's comments correctly, otherwise not.
The "old" originalism (of the 1980s) treated the original intention of the framers/ratifiers of the Constitution as authoritative. This "old originalism" was subjected to three objections (only one of which pertained to the key moral question, namely, about the authority of the original intent):
According to what I will call the "M&E Objection," there either does not exist a collective intention of the requisite kind or we have no reliable method for acquiring knowledge of such an intention.
According to the "Self-Contradiction Objection," the original intent of the framers/ratifiers was that their original intent about the Constitution should not be controlling; ergo, anyone who assumes original intent is authoritative has a reason not to consider original intent in interpreting the Constitution. (Jeff Powell [Duke] supplied the argument, in a 1985 Harvard Law Review article, that the framers did not intent the original content to control.)
According to what Barnett called the "Dead Hand Objection," why should the intentions of long-dead ancestors bind us?
These three objections, correctly I would venture, buried the "old originalism."
The New Originalism--first articulated by Justice Scalia, and defended most importantly by Barnett and Keith Whittington (Princeton, Politics Dept.)--claims that what is binding is the original public meaning of the text of the Constitution at the time of adoption (or at the time of amendment). This new approach defeats the first two objections: the Self-Contradiction Objection quite obviously so; the M&E Objection, because (as both Barnett and Whittington plausibly argue), the original public meaning is in many cases both determinate and knowable. To be sure, original public meaning runs out, at which point judges must engage in "construction" (Whittington's term) of the Constitution, but in a way that does not contradict original public meaning.
That leaves, of course, the "Dead Hand Objection," which is (as Barnett acknowledges) the central objection to an originalist theory. A theory of (as Barnett puts it) "constitutional legitimacy" is a constraint on any theory of constitutional interpretation: the constitution must be interpreted in such a way that the state may legitimately exercise coercive power over people on that basis. Barnett, as is well-known, thinks that the constitution is legitimate insofar as it comports with a certain kind of rights-based view of justice that is more-or-less libertarian in character. The New Originalism is then justified on the grounds that the original public meaning of the U.S. constitution embodies that view of justice.
That would, of course, make the argument for the New Originalism (non-pejoratively) parochial, i.e., contingent on the content of any particular constitution. (Cass Sunstein [Chicago], I take it, exploits that fact in his recent intervention into this debate.) But that is not quite Barnett's conclusion, as he made clear when I posed this worry to him. He also thinks that the writtenness of the Constitution is a fact supporting the New Originalism, becaue the original public meaning as written is something that binds those who make laws that, in turn, purport to bind us as citizens. At this point, I confess I don't follow the arguments. If "constitutional legitimacy" in Barnett's terms (or "authority" in Razian terms) is the benchmark for the method of interpretation we should apply to a text, then I can not see how the writtenness of the text figures as an independent consideration.
Indeed, it seems to me a stronger conclusion is suggested: namely, that once we acknowledge (as Barnett rightly does) that a theory of constitutional interpretation must answer to a theory of constitutional legitimacy, then the constitution (as a written document, or as a document about which framers had some original intention, or as a document which had an original "public" meaning, and so on) drops almost entirely out of the picture: the theory of constitutional legitimacy tells judges how they should decide cases, and the written constitution is, at best, a proxy for what is constitutionally legitimate or is relevant because of its effect on the reasonable expectations of citizens (the latter being a factor bearing on constitutional legitimacy). In other words, Barnett's theory of constitutional interpretation, because it (unlike most theories--Ackerman's, Amar's, etc.) has the correct moral structure is not really a defense of originalism, but a defense of whatever method of interpretation produces "legitimate" (i.e., morally authoritative) outcomes. The writtenness of the constitution, and its original meaing, might, indeed, figure at this point, but only in the way that Raz (who, in an odd way, echoes Posner) suggests: namely, because some moral value (some moral value that bears on authority) attaches to the fact that some understanding of the constitution (original or otherwise) has been stable, relied upon, figures in the public understanding of the society in which people plan their lives, etc.
I have invited Professor Barnett to comment on these issues, and I hope he will do so. A note, also, for those new to this blog about commenting: signed comments are preferred, but signed or otherwise, all comments are reviewed for substance, and only those that make an intellectual contribution are approved. Post only once; comments may take awhile to appear.
UPDATE: Professor Barnett's detailed reply is here. I shall let commenters discuss this for a bit, before trying to put together my own thoughts in response.
ANOTHER: Larry Solum (Illinois) has a long post on the subject du jour here. I had thought it obvious that the post above presupposed legal positivism, and thus presupposed that if there were a legal obligation to employ a particular method of constitutional interpretation it could only be because of the actual practice of officials constituting the social rule that is the Rule of Recognition in the American legal system. (In principle, there could be a legal obligation to employ a particular interpretive method because such a method is required by a properly sourced norm, but there is no such authoritative source in the American context: the Constitution, e.g., is silent on how it is to be interpreted.) But Solum's comments, as well as some of the discussion in the comments here, make clear that it wasn't obvious!
ONE MORE: This is useful by way of reply to Solum.
Thanks to Professor Leiter for laying out this interesting debate and for providing a forum for discussion of this and other issues of philosophical interest.
Though there is, obviously, much to say on this topic, I will just make two quick points, both of which are elaborated in my recent article on constitutional comparativism, available at 59 STAN. L. REV. 1249 (2007) and, with permission of the law review, on ssrn at http://ssrn.com/abstract=929095.
First, I am not persuaded that the shift from founders’ intent to public meaning at the founding resolves completely the “self-contradiction” problem. If one accepts the premise that those who read and wrote the Eighth Amendment, say, were moral realists, then it follows that the public meaning of “Cruel” in 1792 was a natural moral category. If that is so, then focusing on 1792 beliefs about conduct populating that category entails an equivocation.
Second, in light of this and other critiques, the best case for public meaning originalism may rely on democratic principles, respect for institutional role, and epistemic humility rather than the capacity of a particular interpretation or outcome to preserve “rights” or achieve “active liberty.” Returning to the Eighth Amendment example, to the extent there is a determinate answer to the question of what those who read and wrote the text in 1792 believed to be cruel, it can provide a stable mast to which judges can lash themselves and us, putting consistent and predictable boundaries on the activities of the political branches while guarding against the temptations of judicial activism and unfounded, anti-democratic Article III elitism.
Posted by: David Gray | Oct 29, 2007 9:24:29 AM
"[T]here is no convergent practice of behavior by judges... Sometimes they will appeal to original intent, sometimes to original meaning, sometimes to structural considerations, sometimes to plain meaning, sometimes to animating moral principles, and so on.
"There is, then, often no legal obligation to read the Constitution one way rather than another in the U.S."
I don't think this follows. Legal arguments do not have to be based on what judges are doing. I think that the Constitution's indexical language--"this Constitution" and forms of "we," "now," and "here"--embeds a view of the Constitution as a historically-situated textual command. If we swear the Article VI oath, we are bound to take the Constitution on its own terms, even if judges today don't always do that.
Posted by: Chris Green | Oct 29, 2007 4:39:45 PM
Gray: "If one accepts the premise that those who read and wrote the Eighth Amendment, say, were moral realists, then it follows that the public meaning of 'Cruel' in 1792 was a natural moral category."
That doesn't follow. They might've been moral realists, but still used "cruel" to refer simply to, e.g., punishments involving a great amount of pain. (See, e.g., here: http://www.m-w.com/dictionary/cruel.) Whether they used the term to refer to moral reality is just a historical question. *If* they did, then we'd have to look to moral reality to fill in the reference of the term. (See here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=798466.) But assessing the historical sense expressed by the term is always, I think, just a historical question.
The Stanford piece doesn't present much evidence that "cruel" was used in the 8A as a moral term. All I find there is the ipse dixit that the 8A "indisputably attach[es] to objective right" (p. 1262). Scalia's comment quoted there--that there is *some* reality against which to assess whether a punishment really is cruel--doesn't mean that that reality is a *moral* reality. I'd like to see evidence of how the term was used when the 8A was enacted.
Posted by: Chris Green | Oct 29, 2007 6:31:27 PM
David Grey and Chris Green,
A question: My understanding is that "New Originalism" (and it emphasis on 'public meaning') makes a break with using original intent as the primary authority on interpretation. If that is the case, then it shouldn't matter if those who wrote the Eighth Amendment were moral realists or not, right?
Posted by: Jay J | Oct 29, 2007 6:48:56 PM
Chris Green: Legal arguments do not have to be based on what judges are doing.
It might not be clear, but I think Professor Leiter here is referring to Hart's account of legal obligation, which is certainly the most influential. Hart conceives obligations as stemming from certain types of social rules; legal rules are among the rules that impose obligations.
Part of what makes a legal rule a legal rule is that it's accepted and recognized as a common standard by officials. So for instance, the fact that judges and other officials uniformly accept that provisions written into bills passed by Parliament that receive the Royal Assent as a source of law that they will enforce is what makes Acts of Parliament laws, in a way that provisions in a party's manifesto aren't.
Posted by: Raghav | Oct 29, 2007 6:59:02 PM
I should clarify with apologies for the double post that I think what you (Chris Green) are hinting at there is a moral obligation, presumably something like "When someone swears an oath to do something, he ought to do it."
Here's an example: if a batsman hits a sixer, and the umpire gives her out instead of six points, the umpire is violating a rule that imposes an obligation, in a very similar way to the case of a judge violating a legal obligation. (The rules of cricket aren't exactly like legal rules, mind.)
Posted by: Raghav | Oct 29, 2007 7:09:27 PM
Jay: "[I]t shouldn't matter if those who wrote the Eighth Amendment were moral realists or not, right?"
I think what matters is whether "cruel" was, as used in the 8A, a moral term. If we knew that its framers *weren't* moral realists, then we could be confident that they weren't using it as a moral term, but just because they *were* moral realists doesn't mean that the term has to be construed as a moral one. For me, the key is the historic textually-expressed meaning or sense.
I'm not so down on intent myself, actually. Epistemically and metaphysically, I don't think collective intent is very different from corporate intent, which is presupposed whenever a corporation enters a contract. I think, though, that intentions of multi-member bodies generally have to be textually expressed in order to count as collective intentions. I think the main real advantage of New Originalism is the rejection of Raoul Berger's pure WWFD (What Would the Framers Do?) view; see my paper cited above for details. (Now that I check it, I see that the closed-paren goofed up the link. Here it is again: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=798466. The dictionary link can handle it, though.)
Raghav: "[T]there is a moral obligation, presumably something like 'When someone swears an oath to do something, he ought to do it.'" Sounds good to me. Don't know much about sixers, though.
Posted by: Chris Green | Oct 30, 2007 11:15:13 AM
Leiter: "[T]he Constitution ... is silent on how it is to be interpreted."
I don't think this is true--I think that we can unpack constitutional indexicals like "now" and "this" and "we" and "here" to construct a view of the nature of the Constitution that makes the historic textually-expressed meaning supreme. I'm still working on that article, though.
Posted by: Chris Green | Nov 1, 2007 9:01:48 AM
Just a couple quick clarificatory questions from a non-specialist in these matters.
The New Originalism is the view that "what is binding is the original public meaning of the text ... at the time of adoption [or amendment]."
Does 'meaning' here mean the literal semantic content only, or does it include information it unmistakably communicated to those who adopted the text (i.e., the relevant implicatures, to adopt Gricean terms)?
Also, the Constitution took some time (nine months till nine States ratified, and close to three years before RI finally signed on!) to be ratified after being adopted by the convention. I would think that the meaning at *ratification* would be more important than meaning at drafting or adoption by the convention. This would, I think, greatly complicate the New Originalism's ability to answer the M&E objection.
Posted by: John Turri | Nov 2, 2007 11:53:02 AM
Leiter: "once we acknowledge (as Barnett rightly does) that a theory of constitutional interpretation must answer to a theory of constitutional legitimacy, then the constitution (as a written document, or as a document about which framers had some original intention, or as a document which had an original "public" meaning, and so on) drops almost entirely out of the picture: the theory of constitutional legitimacy tells judges how they should decide cases."
An outsider's "worry" here: Perhaps I'm missing something, but it seems to me that, while SOME theories of legitimacy may strongly constrain one's theory of interpretation, others may do so only minimally, or not all. And, is it possible for, say, someone holding a Raz-like positivist theory of legal legitimacy and someone holding a natural-law theory of legal legitimacy both to endorse a Scalia-like doctrine of interpretation? I know of such persons: does at least one of them have an internally inconsistent view?
Posted by: Michael J. White | Nov 2, 2007 9:37:15 PM
Turri: "Does 'meaning' here mean the literal semantic content only, or does it include information it unmistakably communicated to those who adopted the text (i.e., the relevant implicatures, to adopt Gricean terms)?"
To the extent that the expected reference, as opposed to the textually-expressed sense, would be unmistakably communicated, it wouldn't be included in "meaning" on my theory. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=798466 for more. I think most New Originalists would agree, though they haven’t been as explicit about it as I’d like.
In terms of proposal-ratification timing and the M&E question, I think the key is what a hypothetical informed ratifier would think that the text meant when it was composed by the proposers. For instance, if there were some big linguistic change between the proposal and the ratification, it would be silly for a ratifier to think that words composed before the change should bear the meaning they would bear after it.
Posted by: Chris Green | Nov 3, 2007 9:18:45 PM
In case anyone stumbles on this thread later, I've put the constitutional-indexicals paper on SSRN: http://ssrn.com/abstract=1227162
Posted by: Chris Green | Aug 22, 2008 3:26:00 PM
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