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AMA: Chris Green asks about "constitutional truthmakers"
In this installment, Chris Green asks some very interesting theoretical questions about whether there is a single "constitutional truthmaker," and he proposes a single test that will decide all questions of constitutional interpretation. Chris Green: Do you think there is unitary constitutional truthmaker (see https://ssrn.com/paper=2901157 ), i.e., a single reality that tells us when the Supreme Court’s constitutional interpretations are wrong? Is it possible to get from “text and principle” to a single reality that renders constitutional claims true or false? By my lights, “the principle expressed by the text in its original context” would do the job.
JB: By "truthmaker," I assume that you mean something that makes a proposition about the correct interpretation of the Constitution true. I would divide the concept of a truthmaker into necessary and sufficient conditions. Some things might be *necessary* to make a proposition about the interpretation of the Constitution true, while others would be *sufficient* to make it true.
I am an originalist. So I think that, in order to be true, an interpretation of the Constitution must be consistent with original meaning (in the thin sense). With respect to necessary conditions, then, I believe that there is a truthmaker.
But I do not think there is a single sufficient condition for an interpretation of the Constitution to be true. That is, I don't think there is a single criterion that ensures that a proposition, otherwise consistent with original meaning, is also the one true and correct interpretation of the Constitution. There are three reasons for this.
First, because there is a zone of permissible construction, multiple constructions may be consistent with original meaning. It's true that, at any given point in time, there may be a best construction. Surely some constructions will be better than others. For example, some constructions may further the Constitution's purposes and structures better than others. (Cf. Barnett and Bernick). So it's possible that a particular construction is the best one at a given time in the country's history. But it does not follow from the fact that some constructions are better than others that there is a single criterion or property that always points to a single construction or makes that construction the best construction. That does not mean that the relevant criteria are incommensurable in Philip Bobbitt's sense. It just means that they are complex and context-specific.
Second, the idea of construction also connotes the sense of building something on top of a framework. What one builds is not fully determined by the framework. If so, then it is likely that there will be path dependence in constitutional construction. The best interpretation today will depend on what decisions were made by generations after the founders, and not by the founders themselves. Take Madison's idea of liquidation of constitutional meaning in cases of uncertainty. This implies that there is a choice by later generations about how to liquidate. It implies that later generations *make* things true or false rather than simply conforming to a preexisting truthmaker. How that choice is exercised will create path dependence. That phenomenon probably cannot be captured in the idea of a "unitary constitutional truthmaker."
Third, even putting path dependence aside, construction also connotes the idea of administration and implementation. One designs doctrines to fulfill constitutional purposes, with the expectation that other people in the future will have to apply and implement them. There are many ways to go about this task, and they are not pre-determined by the original meaning of the Constitution. Here I will quote something I wrote as a criticism of Dworkin's model:
To implement a constitutional norm [in doctrine]... judges are likely to be faced with a complex set of practical considerations. Should judges employ rules or standards to implement constitutional values? Should they employ bright-line distinctions or multi-factor tests? Should they engage in a proportionality-style balancing of interests to protect constitutional rights or create clear constitutional privileges and obligations? If they engage in balancing, what degree of deference should they offer to factual and moral judgments by the other branches? Should judges’ statements of the law be broad or narrow? Should they proceed one step at a time in building their doctrines, waiting to see what the political branches do in response, or should they articulate their views with full clarity and depth at the outset? Should they attempt to predict the political reaction from the political branches and adjust or temporize accordingly, or should they ignore how their decisions will be received—and whether their best intentions will be frustrated by political resistance? Should they employ what Alexander Bickel once called the “passive virtues” and use various procedural and jurisdictional devices to delay articulation of constitutional norms, or should they push forward as soon as a genuine constitutional question is properly raised? Should they adopt doctrines that will be difficult for the political branches to evade but that may not fully protect the constitutional interests at stake, or should they choose more capacious doctrines that will require considerable buy-in or cooperation from the other branches to be effective?
The idea of a single, unitary truthmaker that adjudicates all of these questions seems improbable.
In short, once we accept the idea of construction-- building on the framework and implementing the Constitution for practical use-- there may be a single *necessary* condition for constitutional interpretations to be true, but it is unlikely that there is a single *sufficient* condition. That does not mean that anything goes. It does mean that there is more than one way to build out the Constitution over time, and that the choices we made earlier shape the choices we make today.
Given what I have just said, I also do not think that "the principle expressed by the text in its original context" provides a necessary and sufficient condition for making propositions about the interpretation of the Constitution true. To begin with, there are all the reasons I have just given about constitutional construction. But suppose we put all of those reasons aside. There are still two further problems with the formula:
First, the Constitution contains more than principles. It also contains rules and standards. So "the principle expressed by the text in its original context" cannot by definition be a sufficient condition for truth.
Second, this formula focuses on the text. But there are structural principles that are not expressed in the text that are nevertheless necessary for constitutional construction. In Living Originalism, I identify several of them: separation of powers (and the counter-principle of checks and balances); federalism; the rule of law; democracy, and republican government. (L.O., p. 259)
These principles underlie the Constitution, but they are not explicitly stated in the text, nor would I say that they are principles expressed by the text in its original context. For example, there is no separation of powers or federalism clause in the Constitution. There are specific provisions in the Constitution that embody these principles, but the concepts of federalism and separation of powers transcend the particular grants of power listed in the Constitution. There is a republican government clause in Article IV, but it applies only to the states, and in my view, the United States must also be a republican form of government. There is no rule of law clause in the Constitution. There is no democracy clause. But my view is that we need to take these structural principles into account when we reason about the Constitution.
Chris Green: Is the binary formulation “text and principle” a better account of what constitutional fidelity requires? Why? To the extent that you resist recasting “text and principle” as “original textually-expressed principle,” are you really a textualist or originalist?
JB: As I explain in L.O. (p. 6), "Text and principle" is a shorthand for an approach to interpretation that focuses on the text and the kind of legal norms the text uses: whether it uses rules, standards, principles, or is silent. The original meaning of the text and its choice of legal norms is the framework on which later constructions are built. Consistency with the basic framework is necessary for fidelity to the Constitution, but not sufficient.
Now consider your proposed formula: "original textually-expressed principle." Depending on your account of original meaning, this might work as a necessary condition for fidelity. But it will not work as a sufficient condition. First, the formula will leave out rules and standards. Second, the formula will also leave out the structural principles underlying the Constitution that are not expressed by the text. Therefore, unless one smuggles in these principles in some fashion, the formula will not always produce constitutional fidelity. My approach is better on this score.
Although I do not accept your formula as a sufficient condition, that does not mean that I am just a textualist. After all, I have just told you that I think there are structural principles necessary for construction that are not found in the text of Constitution but must be inferred from the general system of government. Moreover, this approach is completely consistent with originalism, because most originalists agree that structural reasoning is an important part of constitutional interpretation.
For more on the idea of "original textually-expressed principle[s]," see my answer to your questions in your next installment. Posted
by JB [link]