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Published online by Cambridge University Press: 13 January 2009
I. CONSTITUTIONAL ORIGINALISM
By “originalism” I mean the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters. At least since Marbury, in which Chief Justice Marshall emphasized the significance of our Constitution's being a written document, originalism in one form or another has been a major theme in the American constitutional tradition.
1 Brest, , The Misconceived Quest for the Original Understanding, 60 B. U. L. Rev. 204 (1980).Google Scholar
2 At the same time, it seems that most if not all theorists hold that constitutional cases may sometimes be decided by rules that cannot be attributed to the Constitution. We shall touch on “nonoriginalism” in section III.
3 See, e.g., John Ely, Democracy and Distrust, ch. 2 (1980); Brest, The Misconceived Quest; Dworkin, , The Forum of Principle, 56 N.Y.U.L. Rev. 469–500 (1981)Google Scholar; and Schauer, , An Essay on Constitutional Language, 29 UCLA L. Rev. 797 (1982).Google ScholarMacCallum, , Legislative Intent, 75 Yale L. J. 754 (1966)Google Scholar applies here too.
4 Bork, , Neutral Principles and Some First Amendment Problems, 47 Indiana L.J. 1 (1971).Google Scholar
5 Meese, , Construing the Constitution, 19 U. C. Davis L. Rev. 22 (1985).Google Scholar
6 Rehnquist, , The Notion of a Living Constitution, 54 Texas L. Rev. 693 (1976).Google Scholar
7 Brest also draws a distinction between “strict” and “moderate” originalism, which I take up below.
8 On this view, the meaning of an amendment would presumably be fixed when (or by the time) it was ratified, and its incorporation into the Constitution would presumably modify (and in that sense fix anew) the doctrinal content of the Constitution as a whole.
9 I shall occasionally use “author” to refer to such an exclusive subclass of the population.
10 This covers both species of intentionalism in Brest's typology. “Strict intentionalism requires the interpreter to determine how the adopters would have applied a provision to a given situation, and to apply it accordingly.” (Brest, The Misconceived Quest, p. 222) This permits “intentions” to include general principles, as most original intent theorists appear to accept. “A moderate intentionalist applies a provision consistent with the adopters' intent at a relatively high level of generality, consistent with what is sometimes called ‘the purpose of the provision.’” (ibid., p. 223) The words I have emphasized suggest the view that “intentions” are relatively concrete or specific whereas “purposes” are relatively abstract or general, so that an appeal to original intent, strictly speaking, should be limited to the former. Brest does not defend this view, which does not square with his definition of “strict intentionalism” and is not required by the concept of intent. On the relevance of abstract intentions, see Dworkin, The Forum of Principle.
11 The most plausible criterion in such cases – which are, of course, most directly relevant here – would refer to the meaning of a text that has been adopted as authoritative. But that criterion would subordinate intentionalism to textualism and would make authors' intent a derivative rather than a basic determinant of meaning. I am here considering intentionalism as a basic general theory of constitutional interpretation. I am not considering, for example, the idea that considerations of original intent may for one reason or another properly play a secondary, subordinate, or supplementary role in constitutional interpretation.
12 See Ely, Democracy and Distrust; Brest, The Misconceived Quest; Dworkin, The Forum of Principle; Schauer, An Essay on Constitutional Language; and MacCallum, Legislative Intent.
13 Barron v. The Mayor and City Council of Baltimore, 7 Pet. 243, 8 L. Ed. 672 (1833).
14 This point does not presuppose a general theory of text meaning. The argument of section III would seem to imply, however, that the meaning of a text is not determined solely by linguistic conventions.
15 See my Derivability, Defensibility, and the Justification of Judicial Decisions, 68 The Monist 325 (1985).
16 Insofar as such interpretation is, in fact, intentionalist. It seems relevant that contractual interpretation is not purely a matter of actual intent, but is also regulated by legal norms.
17 The idea of popular sovereignty was reflected in constitutional rhetoric from early on. It became increasingly reflected in the constitutional system as time passed, as major changes occurred in the Republic, including of course major constitutional amendments.
18 This aspect of that theory is discussed by H. L. A. Hart, The Concept of Law 41–43 (1961).
19 Brest, The Misconceived Quest, p. 204.
20 ibid., p. 208.
21 ibid., p. 223.
22 Actually, Brest seems to believe that moderate textualism amounts to the only plausible originalist alternative to “strict” intentionalism, as he says that “moderate textualism and intentionalism closely resemble each other in methodology and results.” ibid.
23 ibid., pp. 205, 223.
24 Hart, The Concept of Law, pp. 121–132.
25 Compare Brest, The Misconceived Quest, p. 225. For a work that might be considered “nonoriginalist,” see M. J. Perry, The Constitution, The Courts, and Human Rights (1982).
26 We shall consider the originalist approach to this issue in section V.
27 R. Dworkin, Taking Rights Seriously 132–137 (1977). This suggestion is independent of other aspects of Dworkin's legal theory.
28 J. Rawls, A Theory Of Justice 5, 10 (1971).
29 If a court works under a doctrine of precedent, then the criterion of a justifiable interpretation cannot simply be fidelity to the “original” Constitution. In that case, past judicial interpretations can presumably affect the content of a justifiable interpretation, even when those past interpretations were mistaken. I ignore that complication here.
30 We should distinguish such philosophical skepticism about values from concern about the difficulty a court might have trying to identify the best conception of a contested political concept (even when the alternatives are severely limited in number) and from an appreciation of the fact that any attempt to identify the best conception is likely to be controversial. We may also assume that reasonable judges can differ in their interpretations. It should be emphasized, however, that approaches to judicial review that seek to avoid controversial interpretations of the Constitution cannot be assumed to be justifiable by reference to the “original” Constitution. That is precisely one of the points at issue here.
31 I address some aspects of this issue in Ethics and the Rule of Law, ch. 1 (1984).
32 Section VI.
33 Interpretation by reference to “original intent” also, of course, draws upon information outside the “four corners” of the text.
34 A theory of adjudication would seem to presuppose an independently determined interpretation of the Constitution, to fix whatever is (or is not) to be applied.
35 Thayer, The Origin and Scope of the American Doctrin of Constitutional Law, 7 Harv. L. Rev. 129 (1893).
36 These are Thayer's chief arguments for judicial deference. Although he nods in the direction of democratic sentiments, he expresses little respect for the virtue, sense, or competence of legislators, but he fears their collective power.
37 Thayer, The Origin, p. 150 (emphasis in the original).
38 R. Berger, Government By Judiciary 412 (1977).
39 ibid., pp. 412–413.
40 Monaghan, , Our Perfect Constitution, 56 N.Y.U. L. Rev. 387–391 (1981)Google Scholar; and Taking Supreme Court Decisions Seriously, 39 Maryland L.Rev. 1–12 (1979).
We are presumably concerned here with precedents on the same cour level, as distinct from precedents that are binding due to the hierarchical structure of a layered court system.
41 Monaghan, Our Perfect Constitution, p. 389; compare Taking Supreme Court Decisions Seriously, p. 7.
Lawyers seem to favor consequentialist arguments for precedent over the notion that precedent is grounded upon the fairness of treatinglike cases alike. For a discussion of this alternative, see Lyons, , Formal Justice and Judicial Precedent, 38 Vanderbilt L. Rev. 495 (1985).Google Scholar
42 Perhaps Monaghan would like to limit the use of consequentialist argument in some unexplained way. It will be difficult to show, however, that such limitations are not ad hoc. Indeed, Monaghan's consequentialist strategy of argument threatens to get completely out of hand. For his argument commits him to approving all principles whose use would serve any values that are as desirable as “stability and predictability.” It may also be noted that insofar as originalist doctrine, such as strict intentionalism, appeals to past judicial practice, its originalist credentials must be as problematic as those of a doctrine of precedent.
43 Monaghan distinguishes the doctrine of precedent that is needed for constitutional cases from “common law analogies” because of differences in details, and he may infer from these differences that the constitutional doctrine could not be based on common law traditions; Taking Supreme Court Decisions Seriously, p. 12. But that reasoning is dubious.
44 See, e.g., Alstyne, Van, Interpreting This Constitution: The Unhelpful Contributions of Special Theories of Judicial Review, 35 U. Fla. L. Rev. 229 (1983).Google Scholar
45 This assumes, of course, that judicial review can be justified despite the argument from democracy. We shall return to that point presently.
46 Rehnquist, , The Notion of a Living Constitution, 54 Texas L. Rev. 695 (1976).Google Scholar
47 ibid.
48 ibid., p. 698.
49 ibid., p. 706.
50 ibid., p. 696.
51 ibid., p. 695.
52 See, e.g., Ely, Democracy and Distrust.
53 Bork, Neutral Principles, pp. 2–3.
54 ibid., p. 3.
55 ibid.
56 ibid.
57 ibid., pp. 10–11.
58 This assumes the use of a burden-of-proof rule discussed in section V.
59 Bork, Neutral Principles, p. 3.
60 ibid., p. 9.
61 ibid.
62 ibid., p. 10.
63 ibid. Bork's note explains: “The impossibility is related to that of making interpersonal comparisons of utilities.” He apparently assumes that if there is any morally defensible criterion for making decisions (including those adjudicating interpersonal conflicts of interest), it is that they should maximize (in Bork's terms) “gratifications.” The alleged impossibility to which he refers would make that criterion impossible to satisfy. Normative welfare economics avoids the problem by giving up the maximizing requirement and replacing it with a conception of economic efficiency, such as Pareto's, that requires no interpersonal comparisons of utility. Bork's note suggests that he is unaware of or refuses to consider either economic or deontologica alternatives to classical utilitarianism.
64 ibid., p. 8.
65 But see note 63.
66 Bork, Neutral Principles, p. 8.
