On reading our own recipes ... and our constitution

[UPDATED BELOW]

Over at Legal Theory, Larry Solum has generously linked here and posted an helpful response. The key part seems to be his analogical move from how we decode the meaning of ordinary documents (like maps) to how we therefore ought to do so with constitutions. It's an argument that reminds me of Gary Lawson's rhetorically brilliant "On Reading Recipes ... and the Constitution" (Georgetown Law Rev 1997), and it strikes me as problematic in much the same way.

Solum's example is of a treasure map from 1689 that uses the word "agolanad", whose meaning has shifted from "oak" to "elm" from 1689 to the 1860s. As he puts it:

"If we want to know what the map meant, we will use the conventional meaning that prevailed at the time, and we certainly won't use the meaning that came into being more than a century later. On the other hand, if we couldn't determine when the map was created, the meaning would be ambiguous, and we would have good reason to look for the location of either an Oak or an Elm."

What I find interesting and problematic about this example is that what does the work here in fixing meaning at 1689 rather than 1862 is a set of linguistic guidelines whose force seems to flow entirely from pragmatic, genre-dependent considerations about successful communication. The reason we care about the map's meaning is to find the treasure, and for that purpose, we want to have as direct access as possible to the information that was being communicated by its creation. In short, there's an implied minor premise here about what meaning is, in the circumstances, supposed to accomplish.

But moving from maps (or recipes) to constitutions makes this minor premise more controversial. It's still a colorable one, but it's now something much more like Barnett's argument that I cited earlier--an argument about what constitutions are for (in Barnett's case, generating the stability needed for the rule of law) that gives reasons for preferring fixed over mutable meanings. And I think here, considerations like those pressed by Andrei Marmor and Jeremy Waldron (and, for that matter, Jefferson) carry the day. Language and the natural conservatism of a well-governed polity will provide enough stability for rule-of-law purposes; seeking more would be to grant the framers authority that simply can't be justified.

It's possible to make a more conceptual, less functional, claim instead--that there's something about authorship and fixity inherent in our linguistic practices, perhaps. We read Shakespeare through the light of Elizabethan meaning not because we think it makes the plays better (though it does) but because extricating ourselves from this fixed-at-creation conception of textual meaning would simply be unnatural to us. And I think there's something to this argument, but not enough.

I think its strength, much like the strength of the functional claim, is both genre- and context-dependent. It draws for its force on the Romantic idea of authorship, and is weaker in those areas where this idea plays less of a role. I suspect it would seem much less natural if the text in question was one known to have been banged out by a group of monkeys, or if we were considering lines of computer code that, by freakish coincidence, also executed flawlessly (but in a very different way!) on an entirely different machine than the one they were written for.

To return to constitutions: to my mind, the first and most important truth about constitutional meaning is to view it through the practice of governance that makes it the constitution of some polity rather than an inert text. This is one reason why I think arguments like Lawson's about how constitutions are transparently and necessarily like recipes are misguided: such claims leave little room for understanding, eg., a Canadian constitutionalism that seems to have decisively rejected originalism without falling into anything resembling conceptual incoherence.

Any decisive originalist argument will have to be one internal to the constitutional practice in question. Of course, such arguments must be consistent with (external) theories about what it is to make an internal argument and what truth in such matters could consist in, but I doubt this constraint by itself will settle much.

[UPDATE: Solum continues the conversation here. A clarification--when I claimed that originalism gives more authority to the framers than is warranted, I meant both that it defers too much to their generation, and that, within that generation, it grants the framers in particular too much power. Both these points are fully compatible with rejecting intentionalism, as most originalists do; the framers were still the ones to choose the words, even if we subsequently ignore their internal mental states. That's power, a power I believe unjustified. A fuller response to follow.]

Originalism on the cheap

The perennial debate over constitutional interpretation spills over into the blogosphere fairly frequently; here and here we see Larry Solum defending, on Gricean grounds, original-meaning originalism. I'm a bit puzzled by this approach. Now, I don't dispute Solum's contention that philosophy of language is relevant to legal theory; any conception of constitutional meaning has to be consistent with at least some respectable theory about what constitutes meaning more generally. Where I find myself puzzled is in the idea that Grice or any other philosopher of language gets you originalism, without the help of any detailed argument about what constitutes the correct version of a genuinely contested social practice. In other words, I have a hard time understanding what we might call "originalism on the cheap", the idea that the constitution just means what it originally did and that this is transparently true.

Solum says that 'laws are different [than one-to-one utterances], and are better understood on the Gricean model of "sentence meaning," analogous to what is called original public meaning in constitutional theory.' Well and good, but I just don't see how the analogy gets you original, rather than current, public meaning. Grice shows us that we needn't view the Constitution as the direct utterance of a certain number of people, the meaning of which must be constituted by actual intentions; we can instead see it as a generic text whose meaning is established by how a certain audience would standardly react to it--but why does the audience need to be the original one?

What makes the Constitution of the United States, rather than the Constitution of the Confederacy, our constitution is that it is ours: our practice of constitutional government is thoroughly and undeniably one that refers to the Philadelphia document (and its amendments) as setting out the rules of legitimate political activity. This conceptual claim has nothing to do with any causal/historical argument about how in fact a given textual document came to have such totemic legitimacy; it is merely an assertion about what it is to have a constitution, whether it be written or, like New Zealand's, essentially customary. (The truth of this claim is, however, more obvious in the latter cases, which is one reason I think more people ought to study them!)

The originalism-just-is argument relies on the claim that any reference to a given text must of necessity be a reference to the sentence meaning at the adoption of that text. But this, as it stands, is simply begging the question. It is true that most knowledgeable practitioners make reference to the text's history and early reception when making arguments about its meaning--especially in areas where current practice is largely unsettled--but they also advance (to channel Philip Bobbitt) doctrinal, structural, textual (in the current-meaning sense), ethical, and prudential arguments.

Now, obviously, originalists claim that most of these other types of argument are invalid, or if valid, only so for epistemic or adjudicative, rather than constitutive, reasons. But this kind of argument can't come from linguistic philosophy--we'll have one sentence-meaning if we look to the Now, and another if we look to the Then--and it doesn't seem to emerge as a conceptual truth about our constitutional practice, Michael Perry's triumphalism on that score notwithstanding.

What the originalists need, I repeat, is a theory of why, given the plural and contested natures of our interpretive methodologies, their particular one is true and all the rest are false. And precisely because of this plural and contested nature, mere appeals to "writtenness" and "sentence meaning" don't hold up. This is why, I think, there is a constant recourse to the sort of normative argument Solum deplores--arguments that give us reasons to prefer the originalist reading over a living constitutionalist one. Randy Barnett, whom Solum often cites approvingly, is clearly engaged in this when he uses an analogy to the parol evidence rule in contract law:

However, given that the meanings of words can change or evolve, in searching for the "generally accepted" or reasonable meaning within a particular community of discourse, at what point in time do we look for the meaning? Here is where textualism meets and melds with originalism. With a constitution, as with a contract, we look to the meaning established at time of formation and for the same reason: if either a constitution or contract is reduced to writing and executed, where it speaks it establishes a rule of law from that moment forward. Adopting any meaning contrary to the original meaning would be to contradict or change the meaning of the text in violation of the parol evidence rule and thereby to undermine the value of writtenness. Put another way, writtenness ceases to perform its function if meaning can be changed in the absence of an equally written modification or amendment.

I think Barnett's argument is an entirely reasonable one: given that multiple meanings are available, we should stick with the original one, because only then can constitutions bind in the very rigid way we want them to. I also think it mistaken: originalism plus high barriers to formal amendment just isn't incentive-compatible, leading to "Constitutional dissonance", and would be morally illegitimate even if feasible. But all of that takes us into the realm of substantive, normative political theory. And that's precisely where Larry Solum (and others, like Michael Stokes Paulsen and Gary Lawson) don't want to go and claim we don't need to go.

If not moral argument, though, what are we to use? Julie Dickson's wonderful article "Methodology in Jurisprudence" surveys various positions far better than I could; read it, if you haven't already. It's quite possible that one could mount what Dickson calls an 'indirectly evaluative' argument claiming that practitioners' most central commitments are to legal authority and legitimate constitutional change, entail originalism, and cannot be abandoned (as non-originalist modalities could be) without destroying our practice entirely. I'd be interested in seeing such a claim. My own is not that originalism is wrong, but that those of its proponents who disclaim any recourse to moral theorizing need to stake a position in the debate over how, without it, one is to determine the true version of a contested practice.

More entertainment blogging

Brief notes:

* China Mieville's "Looking for Jake" is simply brilliant. I'm generally not a huge fan of short stories--when I want escapism, I want to really escape, and that takes word count!--but the format really plays to Mieville's strengths, chief among which is mood-setting. Even that click-to-feed-the-hungry website becomes strange and sinister in his hands. Plus, it includes this, which (no offense to Cory Doctorow) is at the moment my very favorite anti-IPR story.

* David Marusek's Counting Heads is also good, though more in a "gee-whiz" way than a sucking-you-in way. Wonderfully realized vision of the future; less wonderfully plotted story.

Libertarian worries about inequality

Will Wilkinson, who continues to write really awesome stuff, is baffled by the idea that growing inequality per se could be a problem.

Now, I'll acknowledge right at the start that Wilkinson's per se and by its very nature allow him a lot of wiggle room; I'm about to list two worrisome effects of inequality that might not arise or be problematic in every possible world. Still, I think they provide prima facie reasons for concern.

The first is simply the reminder that market allocations are sensitive to starting endowments; one dimension along which Wilkinson's two hypothetical societies, one more unequal than the other, will differ, is that the more unequal society will tend to orient its production more towards the tastes of its elite. Is this a terrible thing? Not always, of course; heck, the luxury-service orientation of New York City's economy lets me get really fancy haircuts for free! Still--if we wanted to get all Rawlsekian, we might say that there are ways in which growing inequality might threaten the social bases of self-respect, even while acknowledging the impropriety of attempting to use the state's power as a 'corrective'. It's okay for libertarians to worry about a "servile state" even when brought about through voluntary transactions--especially when those transactions take place against a background of entitlements and regulations so thoroughly infected with statist intervention!

So one cause for concern is the morally different (but equally 'efficient') outcomes that unequal endowments give rise to. Another is more explicitly political: a worry that rising inequality will lead to a dulling of the sentiments of sympathy and empathy between differently situated people that are in many ways the wellsprings of moral and political rectitude. One needn't sign onto anything remotely like communitarian associative obligations to think this a potential problem; indeed, the more we're skeptical of statist inclinations, the more we ought to be worried if it turned out that our political elites were being drawn from a distinct and increasingly distant set of folks.

Generally speaking, if we libertarians are concerned about and attuned to the ways in which people will often abuse their power over others, of all sorts, these are both things to be wary of.

So a first-world country walks into the doctor's office ...

... and he says, "Doctor, you gotta help me out. I've got this huge problem. Every time I do this"--and here he demonstrates by using his economic and political leverage to pressure a third-world country into signing onto a disastrous intellectual property rights treaty, like TRIPS--"I cause injustice to the global poor! What can I do?"

Now, everybody knows the punchline: the doctor says, "Well, maybe you should stop doing that." But Thomas Pogge has a totally different version. See, in this version, the doctor says, "Well, you can keep doing that, but at the same time you have to implement an incredibly elaborate central-planning scheme for incentivizing the production and distribution of lifesaving diseases based on their importance to the Global Disease Burden. Now, I know such elaborate do-good schemes often seem utopian, but this one is politically tasty, because instead of trying to stop the expansion of unjust and unjustifiable monopoly rights, let alone roll them back, we're actually creating a whole new institutional structure that is built around the methods and profit margins of the existing pharmaceutical industry! It'll be regulatory-capture and rent-seeking, but on a global scale, and because it's all for the poor, it'll also provide great PR! Everyone wins!"

Well, except for the developing countries that are, you guessed it, still pressured into signing TRIPS and the like and and thereby subject to patent thickets galore if they wish to develop their own pharma industries rather than rely on manna from Redmond. The developing countries whose ability to produce medicines that treat equal-opportunity diseases will hinge on whether or not that particular disease happened to look ex ante like one where more profits could be made by going the GDB-based Patent-2 route rather than the good ol' patent-it-and-price-discriminate-like-heck route.

Oh, and first-world taxpayers get a bit screwed, too. They now have to contribute to a prize-pool calculated not merely to induce optimal research effort but to compete with the potential rents available under the current, unjust and inefficient, scheme. Besides which, they stand a greater chance of never seeing said system disabled, because the co-option of third-world countries into the plan means less political pressure of the "re-import from Canada!" variety.

Look, I'm sympathetic to Pogge's project, really I am. But I fail to see how his plan is better on any dimension than the "first, do no harm" principle embodied in the standard punchline, especially if the abandonment of efforts to push developing countries into IPR-feudalism is supplemented with affirmative efforts to aggressively fund poor-country-only diseases (I wouldn't even get too grumpy about an optional check-off box on one's tax return!). And once you start looking at the political-economy effects, it gets positively frightening.