Tuesday, November 06, 2007
David Strauss on Originalism-- Round Two
You write: "I think constitutional law is better described as a process of resolving disputed issues using the tools of the common lawyer—precedent and past practice, which we use out of a sense of intellectual humility and also because of the importance of stability, coupled with essentially moral arguments of fairness and good policy. If we can get the Framers on our side, so much the better. But basically we are making the decisions, not implementing decisions made a century or more ago."
Why then are such decisions beyond revision by the political branches -- except through the very difficult process of revising the constitution which, on this approach, hasn't actually played much of a role in the decision-making? What is the basis for the extraordinary authority which courts claim when deciding questions of constitutional law?
"The 'original expected applications' originalists have a solution to this problem, in theory. They would say that a provision should be construed at the level of generality that was originally understood ... [C]an the Cruel and Unusual Punishment Clause be interpreted to forbid capital punishment? That would depend on whether the original understanding was that the Clause was to be interpreted dynamically; and if so, how dynamically..."
This seems to get the original-expectations view--that is, Raoul Berger's view--wrong, and thereby misconstrues what the rejection of original-expectations view requires. Berger thinks that constitutional interpretation is not dynamic. His argument against Brown does not allow for framer error about anything; he says (a) the framers thought that the 14A did the same thing as the CRA1866--and their view on that is binding on us--and (b) Wilson said that an earlier, broader version of the CRA1866 didn't desegregate schools--and his view on that is also binding on us. End of story. He doesn't look to see whether, for instance, Wilson's view of the tangible effect of the CRA1866 depends on facts about the world that might have changed, or about which Wilson might've been wrong.
"But if you’re not an 'original expected application' originalist, as Jack is not, then I think you’re stuck. You're not going to look for the level of generality in the original understandings (if you did, you’d be an original expected application person); you’re going to get the appropriate level of generality from somewhere else."
I think the misconstrual of how an original-expected-application theory approaches interpretive change affects the assessment of how someone who rejects that theory can deal with it.
A textualist semi-originalist like me responds to Berger by saying, not that we should look to how dynamic framers thought the 14A was, but by looking to how dynamic the text actually makes the 14A. The text expresses, in its historic context, a function from possible worlds to outcomes--that is, something that can produce different outcomes depending on which possible world we're in. Now, the framers had beliefs about which world we're in, and those beliefs aren't binding. They also had beliefs about which worlds we might be likely to be in--that is, beliefs which, if fully considered, would determine how dynamic the interpretation of the 14A would be. And those beliefs aren't binding on us either. The only thing that's binding is the textually-expressed function from possible worlds to outcomes.
So, in short, what matters is what sense competent users of the historically-situated terms that comprise the constitutional language would understand that language to express. That sense, when added the the actual state of the world, produces the referent and tangible outcome. Neither the framers' view of the reference-yielding facts, nor their view of likely future reference-yielding facts, is interpretively binding.
All of this has been fascinating, but I still don't understand what useful work any version of originalism does. On originalist grounds, were the following cases correctly decided and why, or why not? McCulloch v. Maryland; Hans v. Louisiana; Loving v. Virgina? If "originalism" can't answer these questions clearly, what does it do?
I suppose that depends on how you define "useful work". Originalism won't function as a means of rationalizing that the Constitution already means what you want it to mean, so that an amendment isn't necessary for your policy preferences to be 'constitutional'. And that's about the only "useful work" non-originalist approaches do. Actually figuring out what a clause of the Constitution means, instead of rationalizing that it means something you want, is pretty much always an example of originalism.
I define "useful work" as being helpful in deciding cases unclear enough to be worth litigating, and having some tendency to constrain judges from doing whatever they think makes sense. I don't think the various versions of originalism floating out there do that, and I picked three cases to illustrate. One is, on any version of originalism, undecidable. The next is, on any version of originalism with any teeth, clearly wrong yet generally endorsed by most self-styled originalists. The last is, on any non-Balkin-esque version of originalism, also dead wrong, but that's too embarassing for respectable originalists to admit.
By the way, how come I have to sign up for a Google account every time I want to post a comment?
"Cases unclear enough to be worth litigating" are not an objectively defined class. They're a function not only of how unclear the Constitution actually is, but also of how productive litigators consider it to pursue frankly implausible claims in the courts.Post a Comment
Given what passes for "interpretation" today, a claim has to get damned implausible to not be worth pursuing, if it end it aims to achieve is one 5 Justices might approve of.