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Tuesday, October 30, 2007
A Note on Originalism and Judicial Practice
JB
Brian Leiter has offered some very interesting remarks about originalism and constitutional interpretation that are well worth reading. He points out that:
Comments:
Jack, thanks for your remarks, but unfortunately I lost you on the first long paragraph of your post.
It is, of course, one part of the rule of recognition of the American legal system that constitutionality is a criterion of legal validity (so constitutionality is necessary, but not sufficient, for legal validity, while unconstitutionality is sufficient, but not necessary, for a norm being legally invalid). The difficulty is that, in the absence of either (1) a legally valid norm specifying how the Constitution’s meaning is to be fixed, or (2) a social rule (established by the practice of judges) establishing how the meaning ought to be fixed, there is no legal obligation to interpret the Constitution one way rather than another. (Even if there were a legal obligation to read the Constitution one way rather than another this would not establish what judges morally ought to do, but it would at least result in a reframing of the question.) That, then, puts the question of how the Constitution ought to be interpreted front and center, even if one thinks that the Constitution has (and ought to have) authority. I do not understand how you propose to avoid this question, unless you think that the question of the moral authority of the Constitution or the courts is, for some reason, not relevant. That would be surprising, and I don’t think you are trying to motivate that position in your posting. But then what does motivate bracketing the central question about the authority of any particular interpretive method?
The reason I bracketed the central question is that you haven't yet posed it properly. You view interpretation in terms of a rule by and for judges. But the point of my post is that the question of the proper interpretation of the Constitution is not limited to judges and in fact can't be settled by asking what judges should do. That is especially so if, as you suggest, we are trying to tie theories of interpretation to legitimacy. You need to reformulate the question in a way that doesn't necessarily make judges the central players in constitutional interpretation. Citizens might be important or even central players, depending on how we construct our theory of legitimacy.
Jack,
As Brian reformulates the question in the manner you suggest (if he chooses to do so), perhaps you should identify with some specificity "the central players in constitutional interpretation" beyond judges. You seem to open the door wide to perhaps "We the People" as being "important or even central players ...." How is the role of citizens, or "We the People", to be coordinated in constructing "our theory of legitimacy"?
I don't think Leiter's being so unreasonable in asking for either "a legally valid norm specifying how the Constitution’s meaning is to be fixed," or a norm established by judicial practice, or a moral argument. Leiter in his (1) doesn't limit the possible "legally valid norm[s]" to those governing judges, and while he might have referred instead to a norm established by general interpretive practice, the lack of sufficient consensus among judges suggests a lack of sufficient consensus among interpreters more generally.
That said, I think that Balkin's response in his first paragraph--to point to Article VI--can suggest how to find such a "legally valid norm." Article VI makes "this Constitution" supreme, and looking at the various constitutional uses of the phrase, together with forms of other indexicals like "we" and "now" and "here," makes it tolerably clear that the Constitution sees itself as a historically-situated textual command. If that's right, and if we've sworn an Article VI oath, then we should take the sense historically expressed by the constitutional language as supreme.
Jack, thanks for the clarification. I can now reframe my puzzlement, and (perhaps) join the issue.
It is part of the rule of recognition of the American legal system that (since John Marshall) judicial interpretation of the Constitution fixes the constitutional validitiy of norms, whereas popular interpretation of the document does not. If popular interpretation did have a bearing on the legal validity of norms, then we would need to ask more broadly about the interpretive method that can claim authority.
"It is part of the rule of recognition of the American legal system that (since John Marshall) judicial interpretation of the Constitution fixes the constitutional validity of norms, whereas popular interpretation of the document does not."
Not sure about that. That's more Cooper v. Aaron than Marbury v. Madison. See, e.g., Michael Paulsen's work.
I was gratified to be able to answer promptly, and I did. I said I didn’t know.
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