Constitutional Interpretation II

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Constitutional Interpretation II

• Textualism vs. Intentionalism
• Originalism vs. Anti-Originalism
• Stock-Phrases, Revisionism
• Moral Neutrality?
• Intentionalism Objections Replies

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Textualism IntentionalismCommon 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 ones own moral judgment in
  making sense of the text.

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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 amendments unclear reference to the
  militia and to the right of the people.
  Intended to protect individuals, but text is
  ambiguous.

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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)

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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.

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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.

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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.

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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.

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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.

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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.

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Dworkins 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.

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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.

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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.

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Is the Bork/Rehnquist Position Self-Defeating?

• BR 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?

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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.

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Charity vs. Neutrality

• Such a principle of charity requires the reader
  to employ his knowledge of the subject matter.
  E.g., in interpreting Euclids 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.

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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 dont accord with the best
  interpretation of the whole.

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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.

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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.

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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.

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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?

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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

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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 .

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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.

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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.

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Where there is Indeterminacy, Who Decides?

• Thayer's Principle named for legal theorist who
  published influential article in Harvard Law
  Review in 1893. 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".

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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

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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.

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Arguments for Thayers rule

• Neutral principles value skepticism
• Argument from Separation of Powers
• Argument from Democracy