Friday, October 16, 2015

Originalism and Living Constitutionalism: Concluding Thoughts

Stephen Griffin

I will begin my last post on this topic (I decided not to do two) by praising Jim Fleming’s new book Fidelity to Our Imperfect Constitution, just out from Oxford UP.  At first glance, Jim interjects (politely) some asperity in the debate over originalism.  He throws a few sharp elbows in favor of reminding people that his own Dworkinian “moral reading” approach is still a contender, but that’s all to the good!

One of the first topics Jim discusses is that of newcomer “positive” originalism, the idea that at the very least, originalism is “our law.”  I strongly agree with him that there seems to be nothing more to this position than the insistence that all methods of interpretation be consistent with the Constitution, something that has never been at issue between originalists and nonoriginalists.  Is it too speculative to suggest that the idea of originalism as “our law” as a basis for bottom line agreement reflects the influence of Chief Justice Roberts on his former clerks Will Baude and Stephen Sachs – that is, insisting that there must be a middle way between the contending camps on the Court and in the academy.

One version of originalism Baude rejects in his forthcoming article “Is Originalism our Law?” is exclusive originalism, the claim that originalism is the only legitimate method of constitutional interpretation.  He defends “inclusive originalism.”  As Jim argues, this version of originalism is so inclusive that it pretty much subsumes the entire originalism-nonoriginalism debate.  This makes it hard to see how Baude’s formulation can function as a way forward.  Exclusive originalism was my specific target in “Rebooting Originalism.”  Some do deny that exclusive originalism is a meaningful contender in the debate, but after further study I’m sure that notable originalists, like Justice Scalia, really do hold this position.  But who cares?  Shouldn’t we concentrate on the best current version of originalism rather than, say, Scalia’s individual version?

Actually, no.  True, this is a common way for scholars to proceed with respect to normative theories like utilitarianism.  Normally the best way to refute a given theoretical position is to refute its best version.  But I suggest there are special problems in supposing the best version of originalism is one developed by scholars rather than judges.  We should be “weighting” versions of originalism – that is, concentrating on those versions most commonly used in the real world of adjudication.  Originalism is plausibly being used to determine the outcome in constitutional cases.  As such, it has a different status than an abstract theory like utilitarianism.  Originalism can determine whether statutes and regulations (or human beings, for that matter) live or die.  If it deserves the label of “theory,” it is nonetheless a theory being implemented in a specific institutional context.  To the extent it is making a difference in case outcomes and in how lawyers argue in front of the Court and so on, we should seek to understand it in that context.  The primary context in which originalism exists is that of constitutional adjudication, the determination of constitutional meaning in a judicial framework.      

I see this as posing a difficulty for the recent effort by a few originalists to distinguish sharply between the realms of interpretation and construction.  There is no doubt that the traditional debate over originalism is centered in the realm of adjudication.  It’s a debate about how the Supreme Court decides cases, however much it may be recognized that disputes over constitutional meaning occur in the other branches as well.  Now mark well that the main effect of the interpretation/construction distinction is to shift the entire traditional debate into the realm of construction.  I don’t see any conceptual flaw in the distinction itself.  But I also don’t see that much is gained either, for two reasons.

First, the interpretation/construction distinction creates a practical problem within constitutional adjudication that has to do with legitimacy.  Our justices are supposed to, first and foremost, interpret the Constitution.  Any justice willing to admit that they are instead operating in the “construction zone” must necessarily also admit that they are not interpreting the Constitution.  That’s a tricky position to be in.  The first justice willing to make that admission in an opinion will no doubt be trumped by an argument to the effect that what they are supposed to be doing is interpreting the Constitution and, moreover, that is exactly what the justices on the opposite side of the case are doing.  Can’t you just see Scalia making that argument?  The interpretation/construction distinction thus faces a legitimacy bootstrap problem.  It is hard to imagine how this theory could be implemented within the practice of adjudication.  I sense many originalists are resisting the distinction in part because of this practical logic.

Second, the interpretation/construction distinction steers us away from understanding originalism in its most relevant “weighted” context, the theory and practice of adjudication.  Here I have to strongly disagree with the path some scholars (both originalists and nonoriginalists) I respect greatly are evidently pursuing.  We should not study methods of interpretation as if they were philosophical theories of law and we should certainly not expect approaches like originalism used in adjudication to have the rigor expected of philosophical theories.  Obviously I believe that theories of law can be helpful if people are taking positions about law that are inconsistent with what such theories teach us (hence what I termed in earlier posts the “RoR fallacy”).  But it is nonetheless the case that originalism was developed in an adjudicatory context and still makes the most sense in that context.  The practice of adjudication may involve normative and practical considerations that prevent any theory of interpretation from being implemented in a “pure” form.  Originalist justices are often criticized for being inconsistent – for not following the tenets of originalism in all cases.  But they are far from alone in this respect.  It is likely that no abstract theory of interpretation is adequate to the practical demands of common law case by case adjudication.  If so, we go in the wrong direction by analyzing the process of adjudication with a theory that, in effect, off-loads all of the heavy lifting into the relatively unfamiliar realm of construction.

Perhaps part of the difficulty here is the difference between tracks of analysis that emphasize understanding the Constitution as a text first and those that emphasize it as a structure for government.  On the first track the Constitution is regarded, well, as a text like other texts and so we look for the best way to interpret or construe any text.  By contrast, on the second track we understand the Constitution as providing the legitimate legal structure for our government.  Any subsequent action of government must be squared with the Constitution’s supreme legitimacy.  On the legitimacy track, some outcomes are illegitimate ab initio and any method of interpretation that produces them is therefore suspect, however sound it may be in philosophical terms.  I’m pretty sure that Justice Scalia, in fact the entire federal judiciary, are on track two.  But scholars advocating a more philosophically sound approach to the task of interpretation are on track one.  Hence my skepticism as to whether their methodology can help us cope with the challenge of understanding the Court and its role in American constitutionalism.

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