Law & Society Blog

9 Responses to “Originialism’s Misguided Search For An Origin”  

1. 1 Patrick S. O'Donnell Aug 20th, 2006 at 4:46 pm

   I think this is an important discussion and I very much appreciate your contribution, as I’ve been reading Solum, Balkin, et al. With the makeup of the present Supreme Court, we’re provided with a dramatic contemporary exemplification of the consequences of jurists holding to this or that theory of constitutional interpretation as the respective theories have become more articulate with time and the Justices (and their law clerks) are clearly familiar with the contending approaches.

   I’m no expert here but I’m not inclined to view democratic justification of the constitution as solely or primarily derived from its historical or contemporary ‘effectiveness’ (rather, that may be on the order of a welcome by-product or spillover effect as a result of a primary or fundamental democratically explicit public justification). Indeed, I’m rather inclined to see its justification or legitimacy as plausibly owed to its role as either a (democratically inspired) coordination mechanism (‘original’ effectiveness of sorts, if you will), in the manner of Russell Hardin (see, for instance, his Liberalism, Constitutionalism, and Democracy, 1999), or a publicly justified contractualist document, wherein the constitution embodies the social contract’s identification of fundamental law (see, for instance, Gerald Gaus’ Justificatory Liberalism: An Essay on Epistemology and Political Theory, 1996).

   In either case, I don’t see how the variants of ‘originalism’ can act as anything more than one constraint or ingredient among others, in other words, I wholeheartedly agree with you that ‘the author’s intentions and the original reception of any text inform our understanding of that text to some extent. But originalism as a normative doctrine of constitutional interpretation claims that oI(x,y) and oM(x,z) trump other canons of interpretation, such as the objective or subjective meaning at any other time, including the present. I disagree with that claim.’ I would have thought this to be one of the foremost lessons of Gadamerian hermeneutics (Truth and Method, 1994 English trans.). In short, although I disagree with your conception of the constitution’s authority, I don’t think that disagreement precludes me from concurring with your perspective on constitutional interpretation. Of course I haven’t made an argument, but I think one could be made.

2. 2 Ben Samuel Nelson Aug 20th, 2006 at 8:33 pm

   The question seems to be tied to however we account for general semantic meaning. If we arrive at a plausible basis for understanding why and how words mean what they mean, then we are in a position to understand whether or not originalism can be legitimate.

   Convincing solutions to an account for meaning are hard to come by. There are the semantic individualists, who prefer to see accounts of lexical meaning in terms of idiolects, or dialects that are special to the individual person. Thus, no use of words can ever be wrong, and interpretation maps only onto the individual’s intentions. These are kinds of Pragmatics-centered philosophers of language.

   Others, the anti-individualists, demand that there must be correct and incorrect interpretations of words on the basis of factors that are external to the individual: their society, their history, the knowledge of experts. These are more Semantics-centered philosophers.

   I think that the ‘originalists’ are on the right track for looking to history for answers to our lexical questions. But they’re not right to expect to track down the founders’ intentions to do all the work. It seems to me that the first thing to look at when engaged in serious literal-minded interpretation is the semantics involved.

   Lexical meanings are disseminated because they’re relatively easy to transmit and memorize, are useful and vital to everyday life, and can be expected to be understood by others. Ultimately, the great engine of meaning transmission is intentional interaction. More specifically, meanings are transmitted by looking at arbitrarily selected individuals speaking to a related audience, and asking them a) what intentions can be conveyed by some assertion, and b) if they don’t know, how they might find out the answer. History provides the time for these processes to go on, and thus is the exhaust pipe of the meaning creation process.

   The truly basic forms of cultural transmission are communicative media and lexemes. There are two great media: oral and written word. Oral lexemes are more individualistic: they are subject to variation across places because they were used more often in small communities as opposed to communication across the wider world, and subject to variation across time because common usage is the bottom line, and personal memory is fallible. But written lexemes are more anti-individualistic, crossing wider networks of persons, and leaving records which are less easy to forget (since a peice of paper is readily available to the eyes, while memory is more fallible).

   Where individualism reigns, disputes are likely settled by charity or by umbrage. Wherever anti-individualism reigns, authorities need to be appealed to in order to settle a dispute. The dictionary is probably the best source for that, but we might as well also use an encyclopedia, for all it matters. All that’s important is that we must examine the popular history of words.

   Working with Hanno’s distinctions, we might say that a special kind of oM is involved, where we don’t go by the totality of (z) [or its total meaning as popularly understood], but rather by determining what we get by assembling the parts of (z). The parts of a statement, along with its structure, come before we grasp the whole thing.

   As a second pass, we might ask ourselves what special meanings that so-and-so had in mind behind some statement. And the (oI) originalists would seem to need to do this to be coherant.

   But then one must ask moral and political-legal questions: who’s meant to own the constitution, anyway? If questions of interpretation are not settled by our best semantic and pragmatic guesses, then why the hell not interpret for ourselves? And if our pragmatic reading is just not suitable for today, then in what sense are we abandoning the Rule of Law for necrocracy? We own words well enough, because we use them. But utterances are owned only by the utterers, and they’ve long been pushing up daisies. So really what it comes down to is, how serious are we about rule of law? The answer, I think, should be obvious.

3. 3 Hanno Kaiser Aug 20th, 2006 at 10:04 pm

   To put it bluntly, my question is not what the framers said back then, but why we should listen to them today. There are over 200 years of constitutional history. Why should years 1-10 be more significant for our interpretive efforts today than, say, years 160-170?

4. 4 cosim Aug 20th, 2006 at 11:04 pm

   “But I see no reason why the source of normativity and authority of a constitution should be tied so closely to its birth and origin as most originalists seem to assume.”

   I would suppose that given the ideology of most - but not all - originalists, the aim is, in some sense, not just to fix a meaning by constraining judges, but to fix a certain, probably anti-progressive, meaning. Interestingly, this results in ideology being advanced via a certain methodology, which is politically useful for judges, of course, who can claim strict adherence to a method, with the ideology ‘coincidentally’ coming along for the ride.

   The strength of originalism in some contexts will be that it offers a non-interpretive way to understand the constitution. One can simply say, on following oI(x,y) and/or oM(x,z), that Brown v. Board of Education should’ve come out the other way, because certainly the Congress that funded segregated schools also put forth the fourteenth amendment. Of course, this case presents the huge trouble for originalists. Judge Bork basically attempted to create an exception to his theory of constitutional interpretation just for it (something like Einstein tossing an extra constant into relativity’s formulae to correspond to the felt opinions of that time as to the not-expanding universe, which was in error). Professor McConnell labors mightily to try to show that actually one could’ve decided Brown the way it was decided 1954-1958 just the same way in 1870, but he seems to come up well short. Justice Scalia says that he looks only at the words and what they meant at the time, so he doesn’t care that the legislators then were bigots; but Justice Scalia thinks differently of equality for women, given he said the following in his Tanner Lecture:

   Seventy-five years ago, we believed firmly enough in a rock-solid, unchanging Constitution that we felt it necessary to adopt the Nineteenth Amendment to give women the vote. The battle was not fought in the courts, and few thought that it could be, despite the constitutional guarantee of Equal Protection of the Laws; that provision did not, when it was adopted, and hence did not in 1920, guarantee equal access to the ballot, but permitted distinctions on the basis not only of age, but of property and of sex.

5. 5 Patrick S. O'Donnell Aug 21st, 2006 at 12:59 am

   Dennis Patterson provides us with a different way of looking at questions of interpretation and meaning, beginning with his book Law & Truth (New York: Oxford University Press, 1996). I’m not going to discuss his book, rather, I’d like to share some parts of a paper he wrote (available at SSRN): ‘Interpretation in Law’. San Diego Law Review, Special Issue on Legal Interpretation, Forthcoming Available at SSRN: http://ssrn.com/abstract=702921

   I’ve left out the notes, and cut and pasted the parts I thought germane to our topic. Of course one can download the paper at SSRN and/or read the book cited above. It may be obvious upon reading, but Dennis is beholden to a Wittgensteinian take on meaning and interpretation. He is also influenced by Philip Bobbitt’s idea that there are six forms or modalities of legal argument that constitute the ‘argumentative matrix’ of constitutional law. As Patterson says in Law and Truth, ‘Theory (after Bobbitt, ‘a sublime explanatory mechanism’) is banished not because it is wrong, but because it is irrelevant. If law is an argumentative practice composed of the six modalities of argument, then the key to understanding law lies in understanding how these forms are deployed in legal argument.’

   From Patterson’s paper:

   The need for interpretation arises from the firmament of praxis. That is, interpretation in law arises from established forms of action that all participants recognize and employ whenever they make, appraise, and adjudicate claims about the state of the law. Interpretation is grounded in a distinct form of discursive action that we recognize as legal in nature. Thus before we can truly understnad the role of interpretation in law, we must first explicate the particular form of understanding we identify as legal.

   Only with a clear view of the nature of understanding in law can we then properly explicate the nature and scope of interpretation in law. When we look at how participants in law engage in interpretation, the activity can best be described by a few general principles. These principles capture what it is that lawyers do when they, of necessity, interpret the law.

   We show our understanding of a concept when we use the concept correctly. The giving of a correct explanation is a criterion of understanding. Correct understanding is not a function of something that goes on in our head (e.g., a private act of interpretation or translation). Concept possession is the demonstrated ability to participate in the manifold activities in which the concept is employed (e.g., rule following).

   Interpretation is a nonstarter because interpretation draws our attention away from the techniques that make understanding possible. Correct and incorrect forms of action are immanent in practices. Thus, correct forms of action cannot be imposed on a practice, by interpretation or otherwise. It is only when we master the techniques employed by participants in a practice that we can grasp the distinction between correct and incorrect action.

   But where does this leave interpretation? If understanding—i.e., knowing how to engage in a practice—is exhibited in action, what role is there for interpretation? Again, Wittgenstein is instructive here. When it comes to interpretation, we can see that interpretation depends upon understanding—i.e., unreflective action—already being in place. We should, as Wittgenstein argues, “restrict the term ‘interpretation’ to the substitution of one expression of the rule for another.” Interpretation is an activity—one that not only depends upon understanding already being in place, but an activity that is actuated by a breakdown or failure in understanding. In short, interpretation is a therapeutic, not foundational, activity.

   The nerve of law is argument. Facility in legal argument is the measure of the degree to which one has mastered the grammar of justification that is central to the practice of law. The grammar of legal argument is immanent in the practice of law. By immanent, I mean to say that law is an intersubjective practice wherein participants coordinate their behavior through the employment of a grammar of appraisal that is a constitutive feature of the practice itself.

   The fundamental form of expression in law is assertion. Argument in law begins with an assertion that something is the case—true— as a matter of law. Everything from claims that a statute is unconstitutional to averment that a contract is unenforceable are all examples of legal assertions, claims that the purported proposition is true as a matter of law.

   Lawyers appraise the truth and falsity of legal assertions through forms of legal argument. The forms of argument are themselves neither true nor false. Rather, the forms of legal argument are the means by which lawyers show the truth and falsity of legal propositions. The forms of argument are the grammar of legal argument. They are immanent in the sense that they make possible the assertion of claims for the truth of legal propositions which are then disputed, evaluated, and judged by all who are competent in their use (technique).

   There are six forms of legal argument in the American system of law. While some are more familiar than others in different departments of law, these six forms comprise a complete list of the argumentative tools of American law. The forms of argument in law are:

   Textual: taking the words of an authoritative legal text (e.g., a constitution, statute, contract or trust) at face value, i.e., in accordance with their ordinary meaning;

   Doctrinal: applying rules generated from previously decided cases (precedents);

   Historical/Intentional: relying on the intentions of the Framers (constitution), legislature (statute), or parties to an agreement (contract);

   Prudential: weighing or assessing the consequences (in terms of “costs”) of a particular rule;

   Structural: inferring rules from relationships created by the structures created by the Constitution or statute; and

   Ethical: deriving rules from the moral ethos established by the Constitution or by statute.

   I have said that the forms of legal argument in the American practice of law are employed to show the truth and falsity of legal propositions. While this is certainly true, I need to say more about the argumentative framework within which the forms of legal argument are immanent. Once this structure is articulated, I can then explicate the nature of understanding in law as a prelude to my discussion of the role of interpretation in law.

   As mentioned, legal argument begins in assertion. An assertion in law is a claim that a given proposition is true—that is, true as a matter of law. Consider this proposition: p = “The contract between Smith and Jones is unenforceable.” I will call this proposition a Claim because it is asserted as a correct or true proposition. Before we can assess the truth or falsity of the Claim, we need to know what it is about the contract between Smith and Jones that might lead one to assert that the contract is unenforceable. What we seek is a Ground, a reason (e.g., a fact) that connects the Claim of unenforceability with some aspect or feature of the contract by virtue of which the contract is allegedly unenforceable. Suppose Smith is fourteen years of age. This fact is the Ground for the Claim that the contract is unenforceable. But what is it that makes this so? In other words, in virtue of what are the Claim and Ground joined such that the Ground supports the Claim (i.e., makes it true)?

   The answer to this last question is a Warrant. The Warrant makes the Ground significant vis à vis the Claim. The Warrant is the means by which we can say with certainty that the Ground is a legally relevant reason for concluding that the Claim is true as a matter of law. But Warrants are not self executing. For Warrrants to be meaningful, there must be ways of construing Warrants that make Warrants meaningful. I shall refer to these as Backings. The forms of legal argument are the Backings for Warrants, the grammar of legal justification with which we show the truth and falsity of Claims from the legal point of view.

   The normativity of law—the distinction between correct and incorrect assertions—is a matter of the proper use of the forms of legal argument. The forms of argument are the (immanent) grammar of legal justification. Understanding in law is best explained as a disposition on the part of individuals to employ the forms of argument in appropriate ways as context requires. The normativity of law assures objectivity in legal judgment. Meaning—the basis of objectivity—is made possible by the harmony in action and judgment of participants in legal practice over time. Most importantly, it is in virtue of what participants in legal practice have in common that normativity and objectivity are possible.

   Interpretation is a constitutive feature of legal practice. Notwithstanding its importance within legal practice, interpretation is an activity that is dependent on understanding already being in place. The need for interpretation arises when our conventional ways of understanding break down. This occurs, in law, when our use of the forms of legal argument “is in some way rendered problematic and thrown in doubt.”

   How does understanding in law break down, and how does interpretation serve to repair the fabric of understanding? Lawyers use the forms of argument to appraise claims about what is true as a matter of law. In many cases (we may call them easy cases), the relevant forms of argument all point to a single conclusion. But the forms of argument do conflict, and, when they do, the tension must be resolved. Resolving this tension is the activity of legal interpretation.

   Law is a practice of argument. In the day-to-day practice of law, legal questions often admit of one right answer. Philosophy clarifies the practice of law when it engenders a clear view of the grammar of legal argument—the techniques employed by lawyers to settle disputed questions within a shared, conventional practice.

   The forms of argument are a central feature of the practice of law. But the forms of legal argument do not answer the question of what is to be done when they conflict, thereby engendering the need for interpretation. For this, we need to illuminate how it is that lawyers interpret the law when the forms of argument pull in opposing directions.

   The forms of argument are immanent in the practice of law. As we have seen, the same is true of interpretation. The principles of minimal mutilation, coherence and generality are the hermeneutic tools of legal interpretation. In bringing these interpretive principles to light, it has not been my purpose to argue for a particular theory of interpretation. Rather, my aim has been to clarify what we already know and obtain a clearer view of what we do when, perforce, we interpret the law.

   Clarity with respect to interpretation in law engenders a deeper understanding of the role of argument in law. Interpretation in law has purpose only because the possibility exists that we can persuade others to embrace our interpretations and that we are, ourselves, likewise capable of being persuaded. Interpretation, while not foundational, is certainly essential; without it, we could not preserve the common fabric of beliefs and dispositions that make law possible.

6. 6 Patrick S. O'Donnell Aug 21st, 2006 at 8:06 am

   Perhaps ‘originalists,’ i.e., those that believe what the ‘founders/framers’ said trumps any subsequent intepretative practice are subconsciously envious of the power of Madisonian precommitment possessed by the framers. With Stephen Holmes, we might view liberal constitutions as consisting largely of ‘metaconstraints: rules that compel each majority to expose its decisions to criticism and possible revision, rules that limit each generation’s ability to rob its own successors of significant choices.’

   Holmes compares these constitutive (rather than, say, regulative) rules to the rules of grammar: such rules are ‘binding’ in an ‘emancipatory or freedom-enhancing way.’ ‘Grammatical principles, for example, do not merely restrain a speaker, repressing his unruly impulses while permitting orderly ones to filter through. Far from simply handcuffing people, lingustic rules allow them to do many things they would not otherwise have been able to do or even have thought of doing.’ Thus constitutions do not merely limit power, they ‘create and organize power as well as give power a certain direction.’ I suspect originalists (unconsciously or subconsciously) hope to imbibe something of the ‘constitutive,’ ‘coordinating,’ or ‘contractualist’ power of the Framers/Founders, although they well-realize their interpretative practices will never be of the same order or possess the same power as the constitutive constitutional moment. Through a ritualistic invocation of their words, however, they are allowed to magically possess some of the that power, they are able to capitalize on the esteem and awe that attaches to the Founders/Framers.

   Ironically, the originalist position serves to unduly circumbscribe the Federalist endeavor to assure that politics on a national scale had a deliberative character. Originalism short-circuits this ongoing deliberative process with undue deference to the ‘power’ of the Framers/Founders. It accords Burkean-like reverence to the past in a manner that would have horrified Paine or Jefferson. It reveals a lack of democratic faith in or fear of the discretionary character of constitutional interpretation, failing to fully appreciate the ‘enabling’ functions of the new constitutional order.

   I think a serious consideration of or answer to Hanno’s question, ‘and how would originalism work in a country without a written constitution and no readily discernible point of origin?,’ gets to the heart of the matter inasmuch as an answer might conceivably allow (and in fact has allowed, in the case of England) a role for, or deference to, something on the order of judicial precedent, but precedent permits ongoing interpretative practice without according undue power to, as it were, the first or originating ‘precendent,’ the founding moment or beginning point of the process. Originalists appear to believe that ‘constitutionalism’ is in tension with (rather than enabling) ‘democracy,’ and at the end of the day it is the former that has the final say. This is an instance of tradition serving as a fetter, a chain, an impediment on all future generations, something the Founders/Framers would not have countenanced (on the other hand, they avoided the Jacobin-like attempt to exorcise all tradition, to erase the past…).

   Well, so goes my highly speculative attempt at a social-psychological explanation for the ongoing appeal of ‘originalism’….

7. 7 Ben Samuel Nelson Aug 21st, 2006 at 9:15 pm

   Hanno, my point was only that it will be harder to broach the question of legitimacy without first settling the question of interpretation. If all the best interpretations of the intentions of the framers are morally legitimate, then that gives us more prime facie reason to think that we ought to give their opinions controlling weight.

   Still, as I indicated, the originalist perspective is necrocratic, and institutionally dysfunctional to boot. But that doesn’t mean it is futile to persue these other avenues of investigation as well, since rebuttals on this territory might seem more cogent to those readers who are more sympathetic to the originalist ethos.

8. 8 Ben Samuel Nelson Aug 22nd, 2006 at 10:12 am

   I just read through Patrick’s posts. There’s a richness of philosophical and political detail there that can’t be missed. I’ll have to reread it in order to get all I can out of it.

   Patrick, the only thing I had reason to disagree with (which you summarized in connection with your notes on the Patterson article) was the Wittgensteinian conviction about interpretation being what happens when the understanding breaks down. I guess that’s true for interpreting law, and for interpreting problematic sentences or utterances in general; but still, at another level, interpretation is actually the same thing as understanding (or coming to understand) some utterance or sentence. Anyway, that worry may be moot, as I’m not sure that makes a lot of difference to the general point.

9. 9 Patrick S. O'Donnell Aug 22nd, 2006 at 12:11 pm

   Dear Ben,

   You’re far too generous in your remarks. The (logical) difference between understanding and interpretation goes back to Wittgenstein, and Patterson is an eloquent defender of his views in this regard, at least with respect to law (but Dennis would follow W. in generalizing the argument beyond any specific field of inquiry/praxis). I suppose there are some construals of interpretation that would make it identical to understanding, a kind of second-order understanding on the order of Frankfurt’s second-order desires if one wants to incorporate a distinction without buying into the Wittgentsteinian point (I think Gadamer is an instance of this, and I myself was deeply affected by his hermeneutics, whatever the points scored by Habermas in the subsequent debate; later, correspondence with Dennis Patterson together with the reading of his work, convinced me he–or they–may be onto something here…) but in the Wittgensteinan account that simply cannot be the case. Read Patterson’s paper in full, ‘Interpretation in Law,’ available at SSRN and some of the referenced works in the notes. But you’re right insofar as this distinction need not, in the end, be central to making a case against ‘originalism.’ I wish I had more time to devote to this topic and think things through in a more systematic and helpful way (without relying so much on others) but outstanding commitments mean I have to wait until another day. Still, I’m most appreciative of your kind comments.

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