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16 Responses to “What Justifies Originalism as a Theory of Interpretation? (A Reply to Solum)”  

1. 1 cosim Aug 21st, 2006 at 9:45 pm

   I suppose that originalism goes hand-in-glove with the idea of tying the future to the past. Originalism’s claim to the default setting, such as it is, seems to be that with originalism as the default, one theoretically has a discretely valued [yes, no; green, red; 1, 0] answer to legal questions. And theoretically, if one wants to change the reply to a query [no to yes; red to green; 0 to 1], then he changes the constitution itself. In this sense, the originalists are claiming, basically, that all of the answers to constitutional questions are already known and that they have been known for a long time - if you want to change the answer to a question, you change the answer-set - the constitution.

   On this theoretical view, originalism is better for democracy at the default because the constitution can be amended (which is, in practice, very difficult - especially considering that the Reconstruction Amendments were essentially forced on wayward Southern states). But see Robert Dahl, How Democratic is the United States Constitution?

   But of course, the foregoing argument really puts the cart before the horse. Given the way that our (federal) judges are appointed, and the fact that precedent really does constrain even judges who want to be novel (a premise accepted by (even) the legal realists), why not that way, which is ‘democratic’ too?

   It seems that the best argument for any constant default position being originalism would be that it’s ‘principled’ in a world where originalists say one interpretation is just as good as another. But even allowing that originalism could and should be the default in such a case, I don’t think anybody believes that, no? I can’t very well read the twenty-second amendment as a reply to Goethe’s Faust. So this idea that originalism is the way up from our interpretative abyss (allusion to Wittgenstein) is a cure for the disease we’re not afflicted with. There are better and worse interpretations and there isn’t - there will never be - a default way to sort it out that engages argument; the default merely waves its hand at argument.

2. 2 Patrick S. O'Donnell Aug 22nd, 2006 at 8:40 am

   I just want to let readers know that I’ve come across a recent critique of originalism in the context of a broader discussion (as seen in the subtitle) that adds something to the debate: Lawrence G. Sager, Justice in Plainclothes: A Theory of American Constitutional Practice (New Haven, CT: Yale University Press, 2004).

3. 3 Matt Wood Aug 23rd, 2006 at 10:55 am

   I agree with the implication in Hanno’s argument that Constitutional meaning is solely a matter of community practice and convention, however grounded and justified, at least once interpretive questions advance past the bare text of the document. Any number of interpretive strategies are theoretically “possible” should the community (or the relevant community ‘taste-makers’) so choose. But where *logical* arbitrariness seems to lie, my guess is that some form of underlying cognitive coherence is at work.

   Take the following: “Law” exists as an objectification in the minds of both the governed and the governors. We understand “law” as something apart from ourselves, something outside of us that constrains our action. But we are merely treating our own mental projection of metaphorically-objectified “Law” as external reality, commiting something of an ontological fallacy. We imagine the law as having a “long arm,” and that the Constitution “says” something. Legal principles are “embodied” in statutes. The list could go on. The important point is that “law” is conceptualized as a fixed object, capable of being “made”, “broken”, etc., and an important premise of our government’s legitimacy rests on this construct: namely that we are “a nation of laws, not men.” The greater *apparent* discretion we accord judges, the more “law” appears to become the mere opinion of judges, “telling us what to do”, rather than the detached articulation of “objective” (and therefore legitimate) “law.”

   Two conclusions can be drawn from this line of argument: (1) the law must possess at least the appearance of a single, fixed meaning, and (2) present-day judicial discretion must not appear to be unfettered. Otherwise, the illusion of an objective law, governing from outside the community, collapses into naked exercises of power. I don’t know if judges are aware of this and self-consciously employ the originalist modes of interpretation, or whether they themselves subscribe to an objectified notion of “law” as external to the community and thereby are more readily persuaded by arguments for the appropriateness of originalism. I suspect the latter.

   So, of course, the members of our community of practice *could* consent to judges re-interpreting the text of the Constitution every generation or so, but the illusion of an “objective” law would be strained and perhaps shattered. As an aside, my guess is that social dissidents would then be able to more easily persuade others, especially the under-privileged (for lack of a better word), of the government’s “illegitimacy”, and the integrity of the belief-system that sustains (and constitutes) government would be weakened.

   And it seems most natural (based on our experience with actual physical objects) to suppose that if an objectified article of “Law” is created at the moment of ratification, so is its meaning, because meaning is conceived of as the content of the ‘object’ so created.

4. 4 Patrick S. O'Donnell Aug 23rd, 2006 at 11:41 am

   Here’s a selection (edited) from something I posted elsewhere on a different topic (but with some family resemblance). It is largely a discussion and appropriation of ideas found in Lawrence Sager’s recent book:

   Following a normative analysis by Lawrence Sager in Justice in Plainclothes: A Theory of American Constitutional Practice (2004), I think it’s safe to say that the judicial branch in fact largely conforms to the constitutional reticence he recommends, what he terms ‘under-enforcement of the Constitution’ by the judiciary, there being an implicit when not tacit recognition by judges that the bulk of claims for constitutional justice are the prerogative and obligation of popular political institutions. Hence, where popular governmental actors ‘have put in place positive programs that have constitutional justice as their end, the Court should police those programs for the arbitrary exclusion of individuals or for unjust categorical exclusions; and the Court should guard against the deformation of traditional governmental structures that work to the disadvantage of vulnerable groups who depend on nonjudicial governmental actors for full protection against injustice’ [I should note here that Sager understands constitutional justice as ‘far from exhaustive of all political justice’]. In short, under-enforcement amounts to a circumscription of judicial activity best characterized as ‘secondary action by the Court, action in service of the efforts of the nonjudicial actors to realize constitutional justice.’ Again, while Sager is outlining a prescriptive model for us, I believe that in fact the Court has largely conformed to this model. When it has not, it has left itself liable to accusations of abuse of power, regardless of whether or not such charges are of any merit. And, as Sager says, ‘there are distinct features of constitutional adjudication [e.g. precedent-respecting judicial judgment] that should give us some reasons for confidence in that process as the pragmatic means of helping us to recognize and respect the precepts of justice….’

   The normative judgments of judges, again after Sager, are ‘bounded and disciplined’ by ‘some combination of constitutional text, context, the intent of the framers (or more plausibly the framing generations) of the pertinent constitutional text, and deeply embedded tradition (perhaps accounting for the motivations of ‘originalism’ in constitutional interpretation, whatever its shortcomings for constitutional practice). Of course, in the spirit of Stephen Holmes (e.g., in Passions and Constraint: On the Theory of Liberal Democracy, 1995), we might conceive of the bounded and disciplinary character of such ‘constraints’ as at the same time enabling devices, analogous to the manner in which ‘preexisting or preset constraints enhance and stimulate the creative process,’ the constraints, in other words, of artistic genres and traditions (see Jon Elster’s discussion in Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints, 2000: 175-263). In addition, there are those ‘formal constraints within the work of art itself’ that serve to enhance aesthetic value, not unlike the manner in which legal argument in our judicial system is predominantly one of a limited number of forms: textual, doctrinal, historical, prudential, structural, and ethical (Dennis Patterson, after Philip Bobbitt’s Constitutional Fate: Theory of the Constitution, 1982; Patterson adds ‘ethical’ argument to Bobbitt’s list). In other words, formal argumentative constraints or ‘forms of argument,’ function as ‘backings,’ whereby we make sense of legal arguments with ‘claims,’ ‘grounds,’ and ‘warrants’ (see Patterson’s ‘Interpretation in Law:’ http://ssrn.com/abstract=702921 ). Judicial decisions of constitutional import that ignore or show contempt for the above formal constraints might be presumptive or prima facie evidence for an abuse of power claim or accusations of ‘judicial activism.’

   Structural features of adjudication further serve to immunize the judiciary from potential abuses of power. Here I have in mind features of the judicial process or adjudication as set forth by Sager: ‘the call of appropriately positioned parties on the attention of the constitutional judiciary; the common law protocol of adjudication pursuant to which the decision of a matter before a court must be justified with regard to past decisions and in turn projects a burden of justification on future decisions [i.e. stare decisis]; the articulate giving of publicly defensible reasons for decision; the collegial nature of state supreme courts and the Supreme Court of the United States; and the focused and redundant nature of judicial inquiry into governmental compliance with the Constitution [i.e. judicial review].’

   Judicial experience swiftly acquaints judges with the fact that the ‘liberty-bearing provisions of the Constitution speak at a high level of generality, and can only sensibly be understood as invoking broad principles of political justice that require a great deal of elaboration before they can produce concrete results in actual controversies.’ Put differently, and subverting the primary rationale of originalism, ‘the text of the Constitution is not an adequate guide to questions of constitutional meaning at the level of concrete detail’ (hence the need for originalist to supplement the text with ‘original’ historical context, a move fraught with all sorts of difficulties, as Mark Graber makes clear in his post at Balkinization on ‘Originalism, History, and Objectivity’). Incidentally, this high level of generality or philosophical abstraction is what allows or accounts for the fact that Liberal constitutional provisions act, in the words of Stephen Holmes, as ‘meta-constraints: 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, linguistic 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.’ Originalists, at least in theory, are reluctant to grant the ‘emancipatory’ or ‘freedom-enhancing character’ of constitutional meta-constraints, if only because this necessarily leaves considerable scope for judicial discretion and the independent normative judgment of judges. They are dispositionally fearful of reasonable disagreement and/or the possibility of error (judges are, after all, fallible creatures, and this means we will, on occasion, come across a poorly or insufficiently reasoned decision, an occurrence that in and of itself does not amount to an abuse of power). As Gerald Gaus explains, the role of the judge is akin to the model of the umpire, and both can make errors: ‘We expect the umpire to do her best to track the merits of the case—to give a correct answer—and yet the finality of the umpire’s call does not depend on the correctness of the decision. The umpire’s calls are final but by no means infallible.’ The burden of proof for establishing that a judicial decision is an abuse of power is quite large, given the epistemological competence required for judicial office. Public justification of a decision or the reliance on public reasons by definition precludes personal or idiosyncratic reasons being employed by a judge. An incorrect decision in and of itself is not tantamount to a judicial abuse of power, any more than the umpire’s missed call is an abuse of his authority as an umpire. It seems reasonable to allow for a ‘good faith’ presumption when it comes to assessing judicial decisions insofar as, presumably, they are a function of the public provision of plausible reasons (those articulated within the constraints outlined above) for a decision. I therefore agree with Professor Alford that ‘the means by which a judge achieves the result is critical to the proper exercise of judicial function.’ Moreover, I agree with Professor Alford that if ‘a judge chose some arbitrary method to reach that result, such as the flip of a coin or their own gut feeling of what was right and just, [….] we would say that the judge abused her power by not adhering to the judicial method,’ namely, due regard for precedent and proper application of the rule of law.

   Structural features of the judicial branch itself make it well-suited to serve the ends of political justice and further insulate the system from the judicial abuse of power. Sager elaborates:

   ‘At the heart of the social project of constitutional justice is the impartiality and generality of the moral perspective. Common to much of our thinking about political morality in general, and about “rights” in particular, is the notion that the distinctive and essential character of the enterprise of political morality is its concern that the perspectives of each group, each class, and indeed each individual be taken seriously into account and somehow preserved, even in the clash of wills and interests that will inevitably characterize politics in a heterogeneous society such as our own. Political fairness emphatically is not understood as a simple matter of the force of will or welfare multiplied by the number of persons who advance either, but as a matter of fairness to each person, separately considered. Seen in the light of this moral ambition, the judiciary is particularly well structured to address questions of constitutional justice. Judges are considerably more detached from the pressure of public opinion than are regularly elected public officials. Many judges are appointed for life, and most enjoy reasonably substantial job security; federal judges, with the guarantee of service for life at an undiminished salary are the model in this regard. …[T]he comparative independence of judges frees them from the potentially distorting influence of public will.’

   Finally,

   ‘the enterprise of adjudication is thus a kind of institutional reflective equilibrium. Judges are obliged to give each other and the broader audience of their opinions reasons for their decisions, and these
   reasons are of a special sort: They are in principle publicly accessible and publicly defensible, they are exemplars of what some philosophers [e.g. Rawls] have called “public reason.” These features of constitutional adjudication are reinforced by the collegial, deliberative nature of constitutional tribunals in our legal system—most particularly, of the Supreme Court itself.’

   None of the foregoing should be interpreted as an endorsement of ‘judicial supremacy.’ On the other hand, the foregoing should be read as an endorsement of the proposition that the ‘appropriate place for “judicial restraint” is in the interpretation of constitutional rights, recognizing the crucial role for the political process in determining the needs of the common good: judicial respect for the complexities of governance and the values of democratic choice and accountability should be an integral part of the ordinary process of review’ (T.R.S. Allan). Whatever the considerable powers and presumptive privileges of the executive branch, it is the responsibility of the judiciary to exemplify the meaning of the historic commitment to the rule of law, to say what the law is. Even though the judicial branch is often dubbed the least democratic of the three branches of Liberal constitutional democracy, there appear to be any number of structural and procedural constraints built into the legal system that render it less liable to abuses of power vis-a-vis the other two branches. In part, this is owing to the fact that, as stated above, the bulk of claims for constitutional justice are the prerogative and obligation of popular political institutions. The recent widespread acclaim for works by such legal luminaries as Jeremy Waldron, Larry Kramer, and Mark Tushnet finds ostensible liberals joining hands with conservatives in lamenting ‘judicial activism’ and the ‘anti-democratic’ power of the Courts. But, with Lawrence Sager and Erwin Chemerinsky, I find little to fret over when it comes to assessing the democratic virtues of our judiciary. However, if you want to discuss the misuse and abuse of power by those other two branches of government….

5. 5 Matt W Aug 26th, 2006 at 11:53 am

   I feel like thoroughness requires me to give a more extended treatment to this notion of law’s “object-ification”, which I admit sounds like a soft analysis upon casual reading (and I’m willing to admit it may ultimately be). Here’s a stab at what I mean by objectification:

   The brain is composed of neural networks. ‘Mappings’ have been discovered in the brain whereby sheets of neurons are linked to receptor sheets elsewhere in the body, such as tactile nerves or the rods in the eye. When a receptor sheet is stimulated, the corresponding mapping in the brain is activated. And there are a tremendous number of fibers connecting these mappings to one another. Biologist Gerald Edelman has proposed a theory he calls reentrant cortical integration (RCI) to explain the various ways in which these mappings interact in the brain. Under this theory, “reentrant” connections link these mappings together. The linked mappings are capable of being co-activated by the sensory environment and coordinated (via reentrant connections) dynamically and in real-time, thereby creating ‘global mappings’, a phenomenon from which our subjective experience of consciousness may emerge. [Note the similarity to the ‘radical constructivist postulate,’ wherein the mind is an operationally closed system interacting only with its own states.] In other words, the reentrant connections integrate the various sense perceptions into a coherent whole experience (across the visual, tactile, kinesthetic, spatiotemporal, etc. dimensions). By strengthening the synaptic connections between co-activated networks, these global mappings are stored as a distributed memory in neuron populations. Furthermore, global mappings are themselves capable of being mapped to one another. [Try it: in your mind, compare your two favorite pieces of artwork.] Similarities in relational structure between globally-mapped experiences are thought to form the basis of metaphor (“This chili has lit my tongue on fire”), and recurring structures likely also form the basis for mental abstraction (ie, container-like things). The key point is that all pattern-recognition and -extrapolation seems to derive from mapping patterns forged in the neural networks of the brain by repeated experience (a kind of overlapping pattern “sedimentation”) and the relational patterns that can be perceived as a result. [For example, the empirical study of analogy by Dedre Gentner has revealed that young children are unable to perceive complex relational similarities, but readily perceive surface attribute similarities. And even for adults, she found that while “systematicity of relational structure is the dominant factor” in judging the soundness of an analogy, the “surface similarity seems to be the dominant factor” in determining one’s ability to draw an analogy in the first place. In other words, surface similarity leads to greater analogical access, a result explainable as the result of spreading activation across neural networks. Ex: the relational structure behind a cloud:syringe analogy is not as readily perceived as a cloud:sponge analogy, even though the relation is the same.]

   The ‘object’ is perhaps the most generalizable of forms (and seems to be intimately bound up in the linguistic process of naming - once an object is named, it can be reasoned about). Consider all these common phrases: law-abiding citizen; a run-in with the law; he broke the law; a man of the law; under color of law; etc. What is experienced by the reader, phenomenologically, when those words are seen? What is the signified entity behind the word ‘law’ in those phrases? ‘Law’ seems to be experienced as some sort of object, apart from the pages of text on which individual laws are written (if you burned them all, the community may still follow ‘the law’ as remembered), apart from the tremendous mass of individual statutes (I don’t think the human mind can hold them all simultaneously in conscious awareness), apart from the men and women in uniform and elected or appointed posts, and apart from the buildings and various property owned by ‘the government.’ The ‘law’ as phenomenological object is a useful shorthand for a related mass of people and objects who interact according to rule-based and predictable patterns, and an object which therefore possesses no independent existence apart from the human minds it inhabits … but it is a felt object (and phenomenological reality) nonetheless. [cf. “the weight of the evidence”]

   My point was only that, even though there exists no object we can point to in the ‘real world’ that corresponds with this object ‘the law’, the object-ified notion *does* enter into our reasoning processes (and perhaps particularly so for those untrained in the law’s particulars). My guess is that a similar process of object-ification is at work when we conceptualize a particular law. It is conceived of as an object, with particular fixed characteristics, that springs into existence at the moment of its passage. And it feels natural to think that a statute “has a meaning” from the moment it is created, even barring an authoritative interpretation for, say, the first twenty years after its passage. [In fact, the relation between law-as-object and its attendant meaning may merely be a sub-case of a more general metaphor in which the meaning of words is treated as if it resides ‘inside’ the words themselves - the well-known “conduit metaphor”: “An idea that couldn’t be captured in words.” “Her words were hollow.” ] It therefore seems perfectly natural to expect that ‘a law’s meaning’ is created at the same moment as the object itself is created, given that the meaning is in some real sense constitutive of the object. And in accord with my first comment, this process of objectification may be necessary for the maintenance of the fiction that we are “a nation of laws, not men” (ie, that we are a community ruled from the outside by the Law). Insofar as this fiction is a necessary legitimating device – staving off the perception of “rule by law” instead of “rule of law” – frequent reinterpretation jeopardizes the legitimacy of government’s law-making function (or at least judges’ role in it).

   But my guess is that this threat is never consciously addressed by most judges, especially in this pragmatic way, because the originalist mode of interpretation is selected by most judges simply because it “just makes sense” – ie, is in accord with our phenomenological, cognitive understanding of what ‘a law’ is, an object. These reifications influence our intuitions as jurists about the proper source of a law’s meaning, not based on conscious normative considerations, but on, for lack of a better phrase, “what makes sense” - and a fortiori for the layperson. Consider that the interpretive technique of looking to original meaning of some sort predates the current debates over interpretive norms (at least that’s my understanding).

   So even though this is all just a matter of convention, it may be a necessary phenomenological sleight-of-hand, one we even play on ourselves, and which enables the continuation of government of men, not by angels, but fellow men.

6. 6 Patrick S. O'Donnell Aug 26th, 2006 at 10:22 pm

   Matt,

   I would be interested in your opinion of Dennis Patterson’s article, ‘Fashionable Nonsense.’ The abstract is as follows:

   Cognitivism - the explanation of human action by resort to actions in the mind or brain - is a fashionable trend in contemporary social science. Recent books from lawyers argue that cognitivism will give us greater insights into law because law is a product of mind. Therefore, a better theory of mind will give us a better theory of law. This article considers the arguments in two recent books in support of the application of cognitivism to law. In addition to reviewing the arguments for a cognitivist approach to law, the article takes up the philosophical dimensions of cognitivism.

   The paper is available here: http://ssrn.com/abstract=347281 or DOI: 10.2139/ssrn.347281

   In addition, if you have not already, you might be interested in two books:

   Vincent Descombes, The Mind’s Provisions: A Critique of Cognitivism (Princeton, NJ: Princeton University Press, 2001)

   M.R. Bennett and P.M.S. Hacker, Philosophical Foundations of Neuroscience (Malden, MA: Blackwell, 2003)

7. 7 Patrick S. O'Donnell Aug 27th, 2006 at 5:28 am

   erratum corrected: ‘if you have not already read them…’

8. 8 Northerner Aug 28th, 2006 at 8:11 am

   Why should the public meaning of article x guide the judge’s interpretation in the first place? Why not the meaning that the judge in her unfettered discretion applies to it?

   You can’t intend that as a serious alternative, can you? If we’re going to have unfettered discretion, then why do we have judicial review at all? What gives judges the authority to refer to their own unfettered discretion as an excuse to strike down legislation?

   Or the meaning that scholars and experts favor?

   Favor on what grounds? Their own political preferences? Or their concept of the original public meaning?

   Or the meaning that other courts have determined?

   What other courts? Some courts would have stare decisis authority, so their interpretation has to be followed by lower courts. But other courts have merely persuasive authority — so what makes another court persuasive? In order for one court to find another court persuasive, there has to be something going on OTHER than the mere fact that it’s another court.

   Or the meaning that foreign courts have applied to similar provisions?

   Again, this is not a serious alternative. No one would suggest that the *primary* method of interpreting Shakespeare should be to look at how scholars have interpreted similar phrases in Marlowe.

   Or the meaning suggested by a functional or systematic interpretation?

   What is this supposed to mean?

   I am not saying that my alternative proposals are superior to originalism (even though I believe that some are).

   You haven’t shown that they are serious alternatives to originalism, let alone superior. Indeed, some are facially ridiculous as theories of *interpretation.*

   My point is that we need good, normative reasons to choose between these competing theories of interpretation. Originalism has no claim to the default position.

   No. We do not need “normative” reasons to adopt a theory of interpretation. You’re confusing two completely separate issues, as Solum deftly points out with regard to Brian Leiter. Question 1: Should we follow the Constitution? Question 2: What does the Constitution, as a written document, mean on particular points? Question 2 is NOT a “normative” question.

   It would be much more helpful if liberal intellectuals were more honest in separating these two questions, i.e., if they were willing to say, “The Constitution does mean X, but I think that we shouldn’t follow the Constitution,” rather than saying, “Because my normative political preferences require Y, the Constitution should be interpreted as if it meant Y.”

9. 9 Ben Samuel Nelson Sep 3rd, 2006 at 5:41 pm

   Patrick, here are my thoughts on the Patterson article.

   From what I can tell, the argument against Winter is:

   1. Categorization is always necessarily tied to both the moral (and practical) assumptions of a culture.
   2. Law-making employs categorization.
   3. :. Law-making is always necessarily tied to both the moral (and practical) assumptions of a culture.

   4. If law-making is always necessarily tied to both the moral (and practical) assumptions of a culture, then the separability thesis is wrong.
   5. (3 restated)
   4. :. The separability thesis is wrong.

   Patterson disputes (4), pointing out that Hart would be quite happy to admit these desiderata about the standpoint of the law-maker, but that doesn’t affect the facts about the threadbare connection between morality and law.

   I can see how there is a necessary connection in terms of social fact, but not in terms of concepts. However, Winter may be resorting to a Quinean collapse of the analytic/synthetic distinction. If so, then what he’s doing is simply saying, “Look, here are the social-cognitive facts, and because of the way we are, it makes no sense to talk of conceptual autonomy here”: in other words, the synthetic facts about us bedevil the analytic facts about the concepts. If so, then Patterson has not given a thorough enough debunking.

   I say all these things despite being a supporter of the analytic-synthetic dogma, and despite the fact that I believe in the separability thesis. The point is, Patterson may not really have given the argument the old college try.

   But I’m depending here on charitable interpretation on the basis of his gloss, rather than Winter’s original text. Ultimately, I may be just stabbing in the dark, here.

   —

   The homonculus argument is the least convincing of them all. The central claim of the cognitivist is that an understanding of the mind will allow us to understand the social world. We’re told that information is a state, and that knowledge is an ability (presumably, ability to present information to the conscious mind; and only well-justified information, I might add). But do brains “know”? It depends on where consciousness lies. We can take it for granted that consciousness is a property of the mind, but it isn’t clear that it’s a property of the brain. The question is then, “Are brains conscious?” It depends on what you think the mind is. It seems to me that the mind is the activity of the brain, so it makes complete sense to talk about consciousness as an activity of the brain.

   —

   The “interpretation” argument (p.73) is based on a semantic difference, evidently, and not a very useful one. The use of the word “interpretation” to mean conflict-resolution — as opposed to in a more general sense of information processing and meaning creation — requires argument, and not simply be presumed.

   Hacker’s argument is evidently based on the supposition that “to interpret an utterance is to explain it”. Maybe this is so, if we’re convincing ourselves that we’re explaining and rationalizing the utterance to ourselves by appealing to various things like the speaker’s intention, the grounds for speaking, the relevance of the utterance, etc. But if instead we’re talking about only explaining to others, then all interpretation is a public speech act; and this seems like a ridiculously arbitrary use of the word. And it’s only by the latter that some vicious circularity arises.

   Rather, interpretation and understanding are extremely similar concepts. The difference: the former usually has to do with decoding linguistic meaning, while the latter is more general, able to be used to discuss both linguistic and non-linguistic meaning.

   The justification is through an analogy to the philosophy of perception, and relies upon a philosophy of mind which is hostile to ideas of thoughtless sensation. Thus, we don’t just see colors, we see things. Similarly, we don’t just hear sounds, but we hear meaningful utterances. That’s sometimes true; but no happy conclusions follow, since there are many times (daily, actually) where I simply don’t understand what’s been said, but only hear vowel sounds because my mind is elsewhere. Even in reading, I will occasionally find my mind wandering, and yet my eyes still reading and decoding the text into a pseudo-aural mental representation (i.e., I can “hear” the text), yet I must draw my mind back to the page in order to make sense of any meaning there. Perhaps this is not the case for Mssrs. Hacker or Patterson (or, evidently, Winter). They would then have earned their realism; but I hope I’ll be forgive for trying to save the appearances, because the opposite seems like dogma.

   —

   The “achievement” manifesto here is interesting, but there’s something about it that smacks of behaviorism, despite all the protests to the contrary. Sure, a thought can be presented in many different ways, and our avenue for inference of others’ thoughts is always their external behavior; but the thought is still the thought. Dismissing the project as “useless” would only work if one pretended that the argument so far has been successful; but it doesn’t appear to have been. (76)

   It is true, though, that there’s a normative / constructive component to interpretation in law which appealing to radial categories doesn’t seem to capture. (77)

10. 10 Hanno Kaiser Sep 4th, 2006 at 5:06 pm

    “Northerner” writes: “We do not need ‘normative’ reasons to adopt a theory of interpretation. You’re confusing two completely separate issues, as Solum deftly points out with regard to Brian Leiter. Question 1: Should we follow the Constitution? Question 2: What does the Constitution, as a written document, mean on particular points? Question 2 is NOT a ‘normative’ question.”

    If only it was that simple. How is it not a normative question to conclude that, say, wiretaps are covered by the 4th Amendment? Determining the original public meaning (which, I grant, doesn’t have to involve normative choices) only makes sense after we have agreed that original public meaning should govern the interpretation of the constitution. That latter normative commitment — like any other normative commitment — requires justification.

11. 11 Northerner Sep 14th, 2006 at 6:34 pm

    How is it not a normative question to conclude that, say, wiretaps are covered by the 4th Amendment?

    Huh? How is it a normative question at all? You look at the Fourth Amendment; you ask, “What sorts of things is this supposed to protect? What interests does it serve?”; then you ask, “Are wiretaps the same sort of thing?” End of question. You don’t have to ask, unless you want to, “Do I love or hate wiretaps?”

    Determining the original public meaning (which, I grant, doesn’t have to involve normative choices) only makes sense after we have agreed that original public meaning should govern the interpretation of the constitution.

    This is exactly backwards. Pray tell, if you’re going to make a normative inquiry, how do you decide whether original meaning “ought” to govern interpretation without knowing what the original meaning is? Are you just asking — completely in the abstract — “Is it a good thing to be governed by the original meaning of documents?” How is that question supposed to be answerable?

    Obviously, the first question is: Should we be governed by the Constitution? Next question: What does that Constitution, in fact, mean on a given point? [To answer this, you need a theory of meaning; again, this is not a normative question.] Third [not really necessary] question: Having determined what the Constitution means, is it so bad that we ought to do something different?

12. 12 Ben Samuel Nelson Sep 14th, 2006 at 9:48 pm

    Northerner,

    In order for your assertion of “non-normativity” to stand true, you’d have to claim that a “should”-sentence like the following is incoherant or confused:

    1. “Our interpretation of the fourth amendment should cover wiretapping”.

    But by ordinary standards, (1) is a plausible enough sentence, so one cannot reasonably say that it is non-normative.

    Part of the problem here seems to be that you use of the word “normative” as if it were synonymous with “emotional”, as in “non-rational” or “non-evaluative”. That presumes the correctness of emotivism. This requires defence, to say the least. Emotion is surely a big part of normativity, but it’s not clear that it’s the only thing involved in the concept.

    I’m more sympathetic to the second half of your comment. The whole question is starved for a semantic treatment. Still, I must warn that, even though the line between prescription and description in semantics exists, it is fuzzy. Certain modern views in linguistics seem to want to presume the opposite (that there’s a clear difference, examination of grammars can be entirely descriptive if we’re looking at innate grammar, etc). But it seems to me that these views only work within an extremely narrow range of topics which are entirely alien to any interesting questions which those who focus on law might like to pursue. For one thing, the use of any item of language seems to, by default, imply that the speaker thinks the item *ought* to be interpreted in a certain way(s); and that’s prescriptive.

    It’s true that one needs to have a theory of semantic meaning to make sense of, say, the fourth amendment. And, for the sake of argument, we might say that that’s more or less descriptive. But semantic meaning provides a wide field of possible uses and possible interpretations. Strictly speaking, the semantic meaning of constitution never has anything to say on any given case. The literal text (or semantic meaning) is decoded on the basis of linguistic conventions which we take for granted. The pragmatic meaning — that is, for our purposes, the application of the semantic meaning to a particular case — involves (at minimum) figuring out the intent behind the words, and trying to stay true to them. Since pragmatic meaning involves invocations of felicity — and divining intentions of dead persons and applying them in novel ways — it seems to be normative to a greater degree than semantic meaning is.

13. 13 Northerner Sep 15th, 2006 at 9:18 am

    Well, you’re using “normative” in a much narrower sense than Mr. Kaiser is, I believe.

    The way that you use “normative,” every interpretative question would be normative: “Should X be interpreted this way or that?” In answering that kind of question, however, one doesn’t need to resort to any normative *moral* premises. Indeed, there’s no real point in calling this question “normative” instead of just “interpretative.”

    The way that Mr. Kaiser uses “normative,” if I’m not mistaken, is more substantive. He isn’t just asking, “What’s the interpretive answer that we should reach?” Instead, he seems to be asking, “What are the normative moral premises that would require us to follow a particular constitutional provision as it was written, rather than just ignore it and do something else entirely?” In other words, what makes the Constitution morally binding?

    That’s a normative question, in the sense to which I am accustomed. And my point is that the normative question here HAS to come after deciding on interpretation. It’s conceptually impossible to decide WHETHER to follow a particular meaning of Constitution until you know WHAT that meaning is.

    And you can’t decide — not with any intellectual honesty — what the meaning is by smuggling in normative moral premises about what you WISH it meant.

14. 14 Northerner Sep 15th, 2006 at 9:22 am

    In other words, Mr Kaiser is turning this whole enterprise of constitutional interpretation into one circular argument.

    “How do we know we’re supposed to follow the Constitution?”

    “Because the Constitution commands what is morally required.”

    “In that case, how do we know what the Constitution actually means?”

    “Easy — we first decide on what is morally required, and then interpret the Constitution to mean THAT.”

15. 15 Hanno Kaiser Sep 15th, 2006 at 1:11 pm

    As a definitional matter, every claim that contains or implies a deontic operator (ought, should, etc.) is a normative claim. Moral claims are a subset of normative claims, as are legal rules, ethical rules, religious commands, social norms, etc. Normative and descriptive claims may have different truth conditions. Some form of rational empiricism is generally invoked to justify descriptive claims, e.g., “the sky is blue,” or “in 1789, people in Georgia understood x to mean y.” There is no such consensus with respect to the evaluative or deontic elements of a normative claim, e.g., “you ought not to kill,” “it’s rude to cut in line,” “original public meaning should guide our interpretation of the constitution,” etc., which requires participants in a rational discourse to make explicit and, if need be, defend their choice of truth or validity conditions. Northerner conflates “normativity” with “what’s morally required.” I don’t.

16. 16 Northerner Sep 15th, 2006 at 4:32 pm

    As a definitional matter, every factual issue could be transformed into a “normative” question. “Is the sky blue” could be transformed into, “Ought I to believe that the sky is blue?” So too, “Does the Free Speech Clause apply to non-verbal speech in a way that would encompass flag burning,” could be transformed into, “Ought I to interpret the Free Speech Clause to apply to non-verbal speech, etc.”

    I don’t see how adding “Ought I” to the beginning of our sentences adds anything to the analysis here.

    Nor do I see why originalists bear any special “normative” burden here. Indeed, if anyone has a normative problem here, it’s the judge who wants to exercise judicial review as to something that is not encompassed by the Constitution’s text as it was adopted. Why *ought* anyone pay any attention to such a judge?

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