Tuesday, October 30, 2007

A Note on Originalism and Judicial Practice


Brian Leiter has offered some very interesting remarks about originalism and constitutional interpretation that are well worth reading. He points out that:
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.

From this Leiter infers:
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 sure that this is the central question that originalism (or, indeed, any theory of constitutional interpretation) needs to answer. The proper question it seems to me, is what is required of legal officials in general in order for them to be faithful to the Constitution as the basic law of the country. That is, if we assume that the rule of recognition in the United States is that the U.S. Constitution is the supreme law of the land, that it trumps any other law to the contrary, and that all government officials, whether local, state or federal, must not act contrary to it, the question of interpretation is what they have to do in order to obey that legal requirement. This is not the same thing as what justifies courts in exercising coercive power over individuals, because courts do not exhaust the set of legal officials who must conform their conduct to the requirements of the Constitution.

Why do I emphasize this? Because a key move in my theory of originalism is to separate out the question of interpretive fidelity from the question of institutional role. That is, one question is what the best account of the Constitution is, and a second question is how a person's institutional role shapes and limits how they might implement the answer to the first question. Lower courts, for example, must obey higher court precedents even if they believe those interpretations are incorrect; government officials must obey court judgments directly made against them even if they are based on faulty interpretations. On the other hand, legislators may vote for or against legislation on the basis of their judgments of the meaning of the Constitution independent of what courts say. Executive and legislative officials may disagree about the meaning of the Constitution and act accordingly, and courts may never pass on their disagreements. Much executive branch law, for example, is made in the OLC and not in the courts. Executive officials may also disagree with court decisions that are not directly binding on them as parties to the litigation. In this sense, the question of the proper interpretation of the Constitution goes well beyond what courts are supposed to do or not do with respect to individuals.

And it goes further than this: Leiter is entirely correct that theories of interpretation must be tied to theories of political legitimacy, which, I should add, are not necessarily the same thing as theories of justice. Depending on your theory of legitimacy, constitutional interpretation by citizens who are not government officials might be important. For example, both Frank Michelman and I take the position that the political legitimacy of the Constitution depends in part on whether or not citizens could reasonably understand the Constitution and constitutional system to be sufficiently worthy of respect to enjoy the benefits of political union even if the Constitution-in-practice as currently applied by legal officials fails this test. Under this conception of legitimacy, citizen interpretations of the Constitution are quite important, and the question of legitimacy is not settled by interpretations by legal officials. Indeed, political legitimacy may depend precisely on the differences between citizen interpretations of the Constitution and interpretations by legal officials. (Actually, both Michelman's and my views are more complicated than this, but for purposes of this discussion the differences do not matter).

I have argued that theories of constitutional interpretation must be based on the citizen's perspective and that the perspective of legal officials should be treated as a special case of the citizen's perspective. What this means is that the way interpretation is related to legitimacy may be somewhat different than the way that Leiter poses the question.

That is important to debates over originalism for many reasons, but here is one of them: Modern originalism arises from conservative legal movements that sought to critique what they regarded as liberal judicial activism. These originalists wanted their theory of interpretation do two things at once. They wanted their theory of interpretation to give criteria for constitutional fidelity and they wanted it to constrain judges and prevent judges from overturing decisions by legislatures and executive officials. My claim is that a theory of originalism can't do both of these things. It is an approach that helps give an account of why certain actions by officials are faithful or not faithful to the Constitution. Thus, it may provide a degree of legitimacy to their actions, no matter what justifications they themselves offer. (That is why Leiter is not quite right when he suggests that the diversity of judicial practice undermines the legitimating claims of originalism.) But originalism cannot serve as a comprehensive theory of judicial restraint, because originalism simply doesn't constrain in the most important (or contested) cases in the way that originalists hoped it would. (That is, originalism, properly understood, might be consistent with a range of results in contested cases, although particular practitioners might insist that some interpretations are more faithful than the others). Originalism is not primarily a theory of judicial practice, and if you try to make it so you end up distorting both originalism and judicial practice. That is not to say that originalism has nothing to say about how judges should do their jobs. It does. It just cannot do all the work that originalists like Bork or Scalia wanted it to.


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.

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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