Constitutional Interpretation II Textualism vs. Intentionalism Originalism vs. Anti-Originalism Stock-Phrases, Revisionism Moral Neutrality? Intentionalism: Objections & Replies

Textualism & Intentionalism: Common Features Both can discount slips of the pen. Both can ignore secret, disguised intentions. Only intentions that count are those that are made public. Both can rely on evidence of linguistic usage at the time. Both can employ one’s own moral judgment in making sense of the text.

Subtle Differences Canons of good interpretation can conflict with facts about actual intentions. Example: equal protection was intended to be compatible with segregation, enforced social inequality. Ambiguous phrases, interpreted one way by most (all) framers, but best interpreted differently. 2nd amendment’s unclear reference to the “militia” and to “the right of the people”. Intended to protect individuals, but text is ambiguous.

When is Textual Interpretation Most Controversial? When words and phrases whose meaning is “open-textured” or “essentially contestable” are involved: –“just compensation” (5th Amendment) –“the freedom of speech”, “the free exercise (of religion)”, etc. (1st Amendment) –“Cruel and unusual” (8th Amendment)

Two Views Originalist or Historicist. Non-originalist or Anti-historicist. Useful distinction (from Dworkin): between the Framers’ concepts and their conceptions. –Concepts = abstract, open-textured meanings, including ethical universals. –Conceptions = concrete, objectively specifiable conditions.

Originalist-Textualist Interpretation We should always be guided by the “original understanding” of the phrases involved: the particular conceptions extant at the time. Not limited to the conceptions of the drafters, but includes the range of conceptions that would have been accepted at the time as reasonable.

Anti-originalist-Textualist Interpretation Judges must use their own conceptions of the corresponding concepts. Makes no sense for any of us to be bound by the moral beliefs and expectations of long-gone generations.

Test case: “cruel and unusual punishment” According to Bork & Scalia, this phrase cannot include capital punishment, since the Bill of Rights itself makes reference to capital punishment 3 times. According to Brennan & Dworkin, judges must use their own best judgment about what is really cruel & unusual.

A Third Category? Phrases with concrete, uncontestable meanings: “35 years old”, “ten dollars”. Phrases with “open texture”, essentially contestable, ethically loaded content: “cruel”, “just”, “unreasonable”. Stock-phrases: phrases with specialized, technical meaning, not to be read compositionally: “establishment of religion”, “due process of law”.

Textualism and Stock-Phrases From a textualist point of view, stock- phrases must be interpreted as a unit, according to the established usage of such phrases, as technical expressions, at the time of ratification. Revisionist position: allows the courts to re-interpret such phrases as compositional and open-textured.

Dworkin’s Revisionism Dworkin argues that judges should treat the text as a set of data points to be explained by the best moral theory that best justifies the text. Since there may be no defensible theory that justifies all of the text, judges should be free to disregard certain passages. The reinterpretation of stock phrases is simply one way of revising the text.

Neutral Principles? According to Bork & Rehnquist, our constitution depends on the neutrality of judges. They must act according to principles, and they must derive these principles from the Constitution, define them, and apply them in a fully “neutral” fashion. This means, no autonomous use of moral reasoning or moral judgment.

Value Judgments or Value Choices? Bork assumes a kind of moral skepticism: there are no universal moral facts (or if there are, no one can know them with certainty). This means that moral “judgment” is essentially a choice, an act of the will. But, the judiciary is to have no will of its own - - only the legislature may make such value choices.

Is the Bork/Rehnquist Position Self-Defeating? B&R assert that judges are morally obliged to interpret the law according to neutral principles. This much of morality, at least, must be knowable by judges. If this much, then why not much more? Why should judges use only some of their moral knowledge?

Principle of Charity vs. Neutral Principles In reading texts, we typically employ a principle of charity: where the meaning of the text is ambiguous or indeterminate, we embrace the most reasonable alternative, and where the plain meaning of the text is absurd, we attribute the absurdity to a slip of the pen.

Charity vs. Neutrality Such a principle of charity requires the reader to employ his knowledge of the subject matter. E.g., in interpreting Euclid’s Elements, we make use of our knowledge of geometry. The Bork/Rehnquist position seems to require that judges interpret the text of the law without employing their knowledge of justice.

Range of Positions Strict neutralist: judges must not exercise any “autonomous” moral judgment or reasoning in interpreting the text. Non-neutral originalist: judges may use their moral knowledge, but only in order to discover the meaning of the text (as understood by the ratifiers). Moderate anti-originalist: judges may use their moral knowledge, but only to make the best sense of the actual text (without revision). Revisionist (Dworkin): judges may set aside parts of the text that don’t accord with the best interpretation of the whole.

Anti-Originalist Interpretation Brennan and Tribe defend an activist role for judges. They are to act as the “conscience of the people.” They should use their own best judgments, in light of modern ethical knowledge, as to the meaning of open- textured phrases.

Objections to Anti-Originalism It obliterates the distinction between judging and legislating. The Supreme Court becomes a kind of super-legislature. By taking crucial issues out of the political process, it makes compromise impossible, and stunts the moral development of the people. Where great injustice threatens, judges have an honorable alternative: resignation.

The Intentionalist Model Uses the chain of command model. Puts great emphasis on historical research, including research into the “legislative history” of a statute: committee reports, floor debates.

Some Objections to Intentionalism Historical records are incomplete and unreliable. The identification problem: whose intentions count? Authors? Framers? Ratifiers? All voters, citizens? The summation problem: what to do when a disparate set of intentions composed the majority?

More Objections Level of generality problem: Conflicting intentions can co-exist (even in the same mind), when they occur at different levels of generality. The "publicity" argument. The law must be public, accessible to all. It is the public text, and not private intentions, that can be established as law.

Still More Objections “Dead hand of the past" argument. The world of the Framers is "dead and gone". What gives a prior generation the right to govern us? Moreover, the constitutional convention and state conventions were not selected in a very representative manner: women, slaves, and the poor were excluded.

Intentionalist Replies We have to do the best we can as historians. For most intentionalists, it is the intentions of the ratifiers that count. Courts must find a common denominator (shared by a majority of ratifiers), or must choose from a range of politically significant intentions.

Replies, cont. There are a variety of answers to the "level of generality" problem. Originalists (like Rehnquist or Bork) insist on finding the level of generality that the ratifiers intended to make authoritative. In most cases, the framers effectively communicate their intentions. It is the job of the courts, acting as historians, to make these intentions publicly known.

Replies, cont. Democracy means government by "the people", where the People are more than a mere sum of individuals. The People, of which we are now part, persists over many generations. The past is not dead, but lives on in us. This argument (unrepresentative nature of the Founders) proves too much. If successful, it would invalidate the Constitution itself, not just intentionalism.

Is Intentionalism Self- Refuting? Must the intentionalists claim that intentionalism itself (as an interpretive doctrine) was part of the consititutional intentions of the framers or ratifiers? The Framers explicitly rejected the idea that the intentions of the Framers were relevant to interpreting the Constitution: Madison.

For the most part, the Framers endorsed a traditional, textualist reading of the Constitution C. J. Marshall: "The intention of the instrument must prevail... this intention must be collected from its words." Hamilton: "The intention is to be found in the instrument itself, according to the usual and established rules of construction." [Congressional debate over national bank.]

Text, not Intentions Madison: "The sense of that body [the Constitutional Convention] could never be regarded as the oracular guide in expounding the Constitution...life and vitality were breathed into it by the several State Conventions." [Debate on Jay's Treaty, 1796] The "true meaning" of the Constitution is that "understood by the Nation at the time of its ratification." [Letter to J. G. Jackson, 27 Dec. 1821]

Common-law Background No common law cases of judges going to extra-textual sources of information about the authors' intentions. Blackstone -- no mention of such recourse.

Possible Intentionalist Responses It is the substantive intentions of the Framers concerning specific provisions that matter, not their opinions concerning how the Constitution ought to be interpreted. The Framers did agree that the intentions of the ratifiers (state conventions) were authoritative.

Intentions of Ratifiers Thomas Jefferson: "On every question of Constitutional Construction, [we should] carry ourselves back to the time when the constitution was adopted, recollect the spirit manifested in the debate, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." [Letter to Justice William Johnson, June 12, 1821]

Chief Justice Marshall The great duty of a judge who construes an instrument, is to fit the intention of its maker." McCulloch v. Maryland. In Barron v. Baltimore (1833), Marshall appeals to the broad design of the constitution (federalism), and to the public context of the passage of the Bill of Rights.

The Open Texture Problem Both textualists and intentionalists face similar problems concerning phrases with open texture, as well as the interpretation of technical stock phrases. We can distinguish between historicist, activist and hyper-activist versions of intentionalism.

The Semantic Intentions of the Framers & Ratifiers Did the Founders intend for future generations to be bound by their concrete conceptions, or only by their general concepts? Most Founders were moral realists, who believed that there is a mind- transcendent truth concerning what is just, reasonable, cruel, etc.

Where there is Indeterminacy, Who Decides? Thayer's Principle: named for legal theorist who published influential article in Harvard Law Review in When in doubt, the Congress should decide. The courts should not hold an act of one of the political branches invalid "unless its violation of the constitution is, in their judgment, clear, complete and unmistakable".

Different Versions The Courts should defer to the U. S. Congress, but not to the States. The Courts should defer both to the U. S. Congress and to the States. If State law and Federal law are in conflict: –(a) The Courts should give preference to federal law. –(b) The Courts should give preference to State law. –(c) Thayer's rule doesn't apply

Thayer and Indeterminacy Thayer's Principle depends on the presupposition that there are indeterminacies in the law. Some, such as Ronald Dworkin, deny this. Principles of natural law or universal political morality fill in the apparent gaps left by open-textured phrases or inconsistent intentions.

Arguments for Thayer’s rule Neutral principles & value skepticism Argument from Separation of Powers Argument from Democracy