an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This is a somewhat lengthy post on Larry Solum’s massive intervention into the ongoing debates over originalism. Solum’s long article may prove to be a turning point, although I suspect he faces many hurdles in winning acceptance for his central contention that the foundations of originalism are firmly rooted in a semantic, factual, and non-normative account of the meaning of the Constitution. Except for the next paragraph, I will not attempt to summarize Solum’s article. A decent summary would probably take up 10-15 law review pages and, after all, this is a blog! I will raise some questions about Solum’s theory of originalism and make some comments, starting with questions I believe he can answer fairly easily and working up to problems I see as more difficult.
In the dance of arguments on originalism, Solum is right to point out that the debate has been almost entirely normative, analyzing the relationship of originalism to constitutional practice. Solum’s theory, in my view only hinted at in work by other scholars (and thus quite original), changes the focus to how meaning is determined as a fact. To put it one way, the Constitution of 1787 was a proposal that communicated a meaningful semantic message. That’s why the participants to the ratification conventions could have serious debates over whether the proposal should be adopted. So Solum’s four theses: (1) Fixation: the semantic content (linguistic meaning) of constitutional provisions is fixed at the time of framing and ratification; (2) Clause meaning: original public meaning provides the semantic content of constitutional provisions (with several important modifications); (3) Contribution: semantic content contributes (is directly relevant to) extant doctrines of constitutional law; (4) Fidelity (a normative claim): we have a defeasible obligation of fidelity to law. While these are Solum’s central theses, there are a number of other very important points and qualifications that I will try to note as relevant to the questions and comments I make below. And obviously I believe everyone interested in constitutional theory should read Solum’s great opus.
1. Solum provides a theory of how the various clauses (provisions) in the Constitution acquire meaning. But why is meaning limited to clauses? Articles might also have meaning, especially in relationship to one another. So some might view the message of Articles I, II, III as saying there should be three co-equal branches of government. And some view the entire Constitution as communicating a meaning best summarized in the Preamble. Is there a reason to limit meaning to clauses? 2. The Constitution is not annotated. Amendments were placed separately (not, as Madison wanted, inside the 1787 document) and do not have clauses that explain how they relate to the 1787 document. How do we synthesize the meaning of later amendments with the original document if their semantic meaning does not tell us how to do this?
3. Solum believes it follows from his theory (the four theses above) that the Supreme Court should link every decision to a constitutional clause. What are we to make of decisions based on general principles of federalism and separation of powers (principles such as respect for state sovereignty and non-aggrandizement)? Are we not able to decide cases invoking such principles simply because the word “federalism” and the phrase “separation of powers” do not literally appear in the Constitution? 4. Can there be disagreement over semantic content? I presume Solum thinks so because he hard-wires a distinction between clear and vague constitutional clauses into his analysis. Some clauses have clear semantic content such as the one limiting each state to two senators (and that’s not the baseball team!). Others, including most of those involved in litigation, are vague. He draws a further distinction between interpretation and construction. Interpretation determines meaning for non-vague clauses and construction does the same for vague clauses (relying on adoption context to determine meaning). But can there be disagreement over whether a clause is vague or not? Some framers might have believed the enumerated powers and the necessary and proper clause were not vague. I understand that vagueness for Solum is a matter of stipulation. But I wonder how far this can take us in understanding the Constitution if we start stipulating clauses as vague that the framers thought were clear and vice-versa. Also, I understand that the meaning of “interpretation” and “construction” are stipulated, but I don’t think they match practice. Whether this is a problem is hard to say, how construction works remains to be worked out.
5. Solum identifies Dworkin’s theory of constitutional interpretation as a competitor to his own. But I didn’t find one of Dworkin’s most famous claims clearly addressed. This is the idea that the abstract provisions of the Constitution, such as the equal protection clause, are not vague because they directly invoke important concepts of political morality. I know this idea was developed in greater detail in Chris Eisgruber’s 2001 book, perhaps also in Jim Fleming’s. I would be interested to see Solum’s response to these second-generation Dworkinians, as well as to this characteristic claim of Dworkin’s.
6. When he turns to normative theory, the fidelity thesis, Solum’s comments about interpretive pluralism (the theory I defend in “Rebooting Originalism”) are hard to fathom. Interpretive pluralism was at least partly a consequence of early constitutional interpreters perceiving accurately that the constitution was a unique kind of law, one not reducible to other forms. There were genuine questions of what sort of interpretive principles to bring to bear, questions that have been illuminated by Caleb Nelson and others. Working through these questions was necessary before the Constitution could be implemented routinely in courts of law. In this way, a variety of methods of interpretation contributed to the Constitution’s status as a rule of law and thus to the stability of American law as a whole.
7. Solum wants judicial opinions to be transparent and sincere. Here are some crucial points: “Supreme Court Justices have a special obligation to identify the relevant provisions of the Constitution when they write their opinions” (mentioned above). “If the opinion departs from original meaning, it should explain why and offer a justification.” “This means that if the opinion calls for an amending construction of the Constitution (a construction that alters the original public meaning), the opinion should identify the amendment construction, state the inconsistency, and then offer a justification for the departure from original meaning.” (p. 121) I take it as clear that none of these points are supported by current Supreme Court practice. So much the worse for the Court, originalists might say. But because Solum thinks these points follow uncontroversially from fidelity to law (which everyone on some level accepts) should he not be put to inquiry why they are not followed? Perhaps the rule of law is more complex than Solum allows, especially when the Constitution is the rule. 8. One important similarity among the originalist theories offered by Whittington, Barnett, and Solum is that they all end, in one form or another, by discussing the need to amend the Constitution when original meaning runs out. As the quotes above demonstrate, Solum thinks judges should frankly acknowledge when they are amending the Constitution. But suppose there were reasons why we have not typically responded, especially in the twentieth century and since the New Deal, with amendments to ratify fundamental changes in our constitutional order. Suppose those reasons were internal to the Constitution as a rule of law and exposed the more complex and uncertain features of the functioning of our constitutional system. Suppose we started not only from the reality that amendments are off the table as a practical matter but from the insight that this is generally a good thing (see Eisgruber’s 2001 book) or to be regretted but necessary to the new democratic constitutional order founded by the New Deal (see my book!). Then we might have a start on explaining, as I think Solum cannot, some central features of contemporary judicial practice. We would also have a purchase on understanding how ideas of the “living Constitution” became real and credible.
I would just observe that when someone actually digs into the weeds of originalism, as this post did, our resident conservatives don't seem that interested. Originalism is only useful to conservatives as a political argument. As for actual interpretative theory, it is of no interest, because it can't be used to paint the judiciary as a good vs. evil struggle between conservatives who follow the law and liberals who don't.
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I don't think it's correct to say that the clauses of the Constitution had a fixed meaning at the time of the adoption. How could the differences between the Federalists and the Republicans have grown so extreme in 12 years if the Constitution had the same meaning to both? Indeed, it appears that these two groups differed even on what it meant to be a nation-state, the governance of which the Constitution was trying to achieve. There certainly seems to be no unity of understanding around the powers of the federal government vis-a-vis the Bank of the United States, excise taxes, or the Louisiana Purchase.
There is no dispute that what Jeremiah Wright says has semantic content, we take meaning from his words. But what we say he says depends on why we say what he says, and at this point his words have been polemicized to the point that they no longer mean what he meant them to mean. (BTW, this has taken only one year.)
From the time the Constitution emerged from the Convention, it entered into public discourse and its meaning began to change as people began construing clauses together and describing the powers and possibilities which those constructions admitted. Certain meanings were favorable to certain interests, others to others; philosophical feralism/republicanism became reified as political Federalism/Republicanism.
Constitutional interpretation is politics by another means, and originalism (phony or otherwise) is just another mode.
Stephen Griffin said (original post) -- >>>>> So some might view the message of Articles I, II, III as saying there should be three co-equal branches of government. <<<<<<
How does covering the three branches in three separate articles convey a message that the branches were intended to be co-equal? It is obvious that the Constitution gave more power to the legislative branch than to the executive and judicial branches. If the three branches appear to be co-equal today, that is because the executive and judicial branches have usurped powers not delegated to them by the Constitution.
>>>>>> And some view the entire Constitution as communicating a meaning best summarized in the Preamble. <<<<<
The Preamble is so general that it is of no use in interpreting the Constitution.