Deflationary constitutional theorizing

At first glance, the relevance of philosophy of language arguments and distinctions--like those utilized by Prof. Green, as discussed here--to constitutional theorizing may seem straightforward. Among other things, we want to know what it is for something to be constitutional or not, and we therefore need an account of constitutional meaning. For example, we might want to know just what the sentence:

"The executive power shall be vested in a President of the United States of America."

means. Claims that the President has complete authority over every official who appears to be in the executive branch look like semantic ones that turn on the meaning of that sentence. And this seems like something a philosopher of language could help us with.

Certainly, some theorists go in this direction: Stavropoulos, for example, and Dworkin in his way. And Chris Green's paper is definitely pressing a semantic argument. But I'm increasingly doubtful that semantics, rather than pragmatics, is where the action is; insofar as arguments about the Vesting Clause are linguistic in any sense, they're focused on that particular use of "executive power" in a particular constitutional / legal context. And this doesn't seem to be what semantic theories are trying to make sense of.

Even a shift to pragmatics may be misleading, though. If we start from the question of which of various possible constitutional orders we have, right now, then it looks like the focus will be on norms of constitutional validity, which may or may not be amenable to (let alone constituted by) authoritative verbal formulation. We care about particular constitutional sentences because of what they do to these norms. And it's not clear why we would expect a general theory of pragmatic content to help us much with this in any concrete way, as the relationship between sentences and norms may be quite system-specific; and indeed is perhaps the defining feature of that system.

[Many theorists have analogized the norms of legal validity to the norms of a game. Would we expect a general theory of pragmatic content to help us much in understanding the rules of Calvinball? Not really: we need to understand Calvinball first, in order to see how utterances within it fit into our theory of content.]

This isn't to say that these theories don't apply to constitutional texts; they surely do. But to the extent we're pushed towards pragmatic theories of legal content, it will be a very deflationary sort of application. On something like Brandom's inferentialism, for example, it seems like we'd characterize the meaning of the Vesting Clause within U.S. constitutional practice as the commitment of everyone involved to take it as a premise in their constitutional reasoning; in particular, their inferences towards entitlements to "x is un/constitutional"-type propositions. But this formulation clearly doesn't help us make the right inferences of this sort; it just makes explicit what's going on already.

Originalism is a sort of foundationalism concerning constitutional inference: it claims there's only one sort of valid argument towards proposition-entitlement, though others may be good if they are taken to reliably generate the originalist sort. What kinds of arguments could justify this claim? Only ones internal to the inferential practice itself, I think: arguments that demonstrate why non-originalist inferences are somehow defective (perhaps by leading inevitably to contradiction). I think this is the most respectable gloss to put on many of the arguments put forward for originalism; and I think that the pervasiveness of "constitutional faith" is why moral arguments are actually respectable in this context, though only when formulated in a certain indirect fashion. This is also how many dynamist arguments work: one commenter pointed to Stevens' concurrence in Georgia v. Randolph, in which we can see his attempt (ably rebutted by Scalia) to demonstrate why originalist inferences would be unsound (namely, because they would lead to contradictions with commitments to gender equality).

Now, I take the project of constitutionalism to aim at the institutionalization of public rules of constitutional inference. I think this, in fact, actually points towards internal arguments against originalism, arguments based on incentive-incompatibility (at least within a supermajoritarian amendment framework). But, alas, few writers seem to be advancing claims like this.

Philosophy of language and originalism

Chris Green's paper on applying the sense-reference distinction to constitutional law, available here, is interesting, although I find it ultimately frustrating. His claim is basically that originalism, while implausible if taken to mean original references (truth-values, more or less) of constitutional propositions, is bother possible and correct if taken to mean original senses (functions from possible worlds to truth values, more or less). This has some affinities to Jack Balkin's "original principles" approach, and places it within the broader family of "original meaning, not applications" originalisms.

One upshot of this approach is to make clear just how immense is the authority it accords to the constitutional framers. This is because sense determines extension; the job of modern interpreters, once the original sense has been extracted, is merely to slot in the facts of the actual world, as best they know them, and thus discover the truth of concrete propositions ("segregation is unconstitutional"). Not only did the framers get to pick a rule that would decide constitutionality in the world they knew (even if they might have been mistaken about how to follow that rule); they got to pick a rule that would decide constitutionality in all possible worlds, now and forever.

And yet--I repeat myself, perhaps, but I keep seeing the same thing!--just why we are in fact bound to the original sense/intension rather than the current one is almost entirely unmotivated. In Green's defense, he is upfront about this, admitting (on page 16 of 102) that he "cannot here give a full defense of the theory" before pointing, in a footnote, to the possibility of an argument relying on the text's self-understanding as an "historically-embodied textual assertion of authority." In the article itself, he claims that intension-originalism follows from the point of constitutionalism as a set of rules that can stay fixed while applying to changing and unforseen circumstances (16-17). But both arguments seem question-begging to me.

1. The text's self-understanding of its own authority, on its own, is irrelevant. "X. Trapnel's Best Constitution Ever" could claim unlimited and perpetual authority for itself, but it would still have none; the nature of a text's authority must flow from the character of the practices of understanding, interpreting, and applying it. Perhaps Green disputes this, but I had thought this a core tenet of almost all general jurisprudence; even Dworkinian interpretivism starts from the history and point of the practice, rather than the artifactual locus of the practice, in order to get things going.

2. The idea that original-intension/sense is a "natural position to take" because of our concern with the rules as apart from their contingent (and possibly mistaken) applications may be true psychologically--and if so, that does count as evidence, on a practice-based view, for the non-exclusive validity of originalist arguments. But it is hardly the only position, and the normative/practice-based concerns that motivate it actual push the other way. (I'm unsure whether Green is arguing that his theory follows because it best accommodates the objective values of stability and responsiveness, or whether he is making a more practice-based claim about the purposes embedded within American constitutionalism right now, irrespective of their merits. But either way!)

Suppose we accept that constitutional sense/intension determines constitutionality. What does that get us? Not originalism: Green points to Frege's claim that sense remains constant over time, but Chalmers' modern reconstruction, which Green also relies on, abandons this claim as implausible; and even at the same moment, two individuals can assign different intensions to natural kind terms or names. Why privilege the original (standardized across users, let's grant) intension over the current one? Both give us a rule that is metaphysically prior to its applications and can reach unforeseen ones. Moreover, the contemporary intension will do a better job of dealing with vagueness: precisely because it is our rule, not our forebears', we will find it easier to apply.

Worries that relying on contemporary intension/meaning/what-have-you means abandoning constitutionalism entirely are simply misplaced. The common law--which is nothing if not unoriginalist--wasn't just a bunch of lawless judges handing down decrees, pace Bentham (though he may well have been right at the time). Now, there's clearly a difference between interpreting a line of purely atextual decisions and interpreting a written constitution, but exactly what sort of difference is a deeply contingent question. The moves you can make in Australia are different than in Canada, and it's not just a matter of conceptual confusion. I think it rather telling that Scalia's originalist manifesto was titled "Common-Law Courts in a Civil Law System"; that alone should set off alarm bells.

There's definitely an originalist strand in American constitutional practice, but to elevate that to hegemonic status and deny the validity of all other forms of argument seems to require either wishful thinking or explicitly normative arguments--and I think the latter are only persuasive to those who approve of original meaning on substantive grounds, and even then ought to be overridden by procedural concerns.

(If I've misunderstood or mischaracterized the positions here, please correct me!)

Legal inferentialism: totally sweet

So I've been reading Brandom's Articulating Reasons, the gentle introduction to his inferentialist magnum opus, thinking that perhaps therein lies a rigorous foundation to a practice-based conception of legal argument that goes beyond mere handwaving. And, hey, look: "On Legal Inferentialism. Toward a Pragmatics of Semantic Content in Legal Interpretation?" I love it when it turns out someone has written an article clarifying exactly the problem I'm trying to muddle through.

One frustrating aspect of the questions I'm interested in is that I really need to become conversant not merely in general jurisprudence and constitutionalism-as-political-theory, but philosophy of language/mind/action, and probably sociological analysis of institutions, too. Especially insofar as the inferentialist stuff seems rather heterodox. (Brandom's "Making it Explicit" has about 500 Google Scholar citations, but it seems like about 450 are dedicated to refuting it.) Eeep!

More later.

Public rule-following and constitutional "fidelity"

I find it interesting to read Matthew Adler's "Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism" paper (here) against the background of Philip Pettit's "The Reality of Rule-following" (here). Adler's paper summarizes the struggles that legal positivists have had in moving beyond H.L.A. Hart's not-so-helpful formulation of the Rule of Recognition as a 'social rule'. The difficulty, generally speaking, is that the level of cooperation and (colloquially speaking!) coordination that extant philosophical models of group activity presuppose seems to be lacking in the real world with our legal criteria of validity. In response, some theorists have explored weaker and weaker models of social practice, but Adler suggests that even these do not go far enough. The problem, for him, is that all these models insist on "group-sensitive" acceptance of the rule or criteria, which rules out the sort of "group-insensitive" acceptance displayed by a "constitutional fidelity" that proclaims its version of the rules to be correct no matter what everyone else thinks. Surveying the landscape of American constitutional theorizing, Adler finds this "fidelity" ubiquitous and hence considers it a strike against most positivists that they treat it as somehow deficient.

I'll put aside the specifics of the various proposals at issue here--Scott Shapiro's 'massively shared agency', in particular, I need to look at more closely--and just touch on why I think some very general philosophical worries about public rule-following might perhaps push back against Adler. In other words, rule-following itself might preclude group-insensitive (GI) acceptance, making "constitutional fundamentalism" perhaps a better label for such an attitude than "fidelity."

Pettit's paper is part of the vast literature (with which I have only a dilettante's acquaintance; caveat lector) responding to Kripkensteinian worries about how we can ever know ourselves to follow one rule rather than another (because all our prior experience underdetermines future use, &c). He wants to account for our being able to directly but fallibly "read off" of particular rules applications of potentially indefinite scope. In order to do this, Pettit takes an interestingly naturalist tack: perhaps a rule can be uniquely picked out by prior uses through an exemplification relation, such that even if (a, b, c) are consistent with rules (r1, r2, ... , rn), they will in fact exemplify only r1 if presented in ideal conditions to beings like us with our particular, evolutionarily adaptive, capacities. Without at least hypothetical others to compare reactions with, however, we lose the fallibility requirement; in order to know that I'm following a rule rather than grasping at a different one each time a new situation presents itself, I must be able to engage in counterfactual introspection to see how I might have gone wrong in my responses.

What about public rules? Here there's an extra difficulty: I need to know not merely that I'm continuing to apply one rule to various situations, but also that it's the same one that you're applying. As Pettit puts it, "it is only if the person identifies the rule on the basis of an interpersonally as well as intertemporally standardized inclination that I can know which rule he is following." But this isn't--can't be--a one-time encounter; it's only by continually interacting with one another, testing our (fallible) responses against each other and jointly wrestling with that fallibility, that we have any reason for believing that we're still following the same rule. Apart, we have nothing to combat the inescapable worry that we're on two separate tracks that ran together for some time before diverging.

This is, of course, transparently speculative--but not implausible. For whatever reason, I find it enormously appealing. And it presents an interesting lens through which to study constitutional rules. In particular, it highlights the sheer precariousness of political and legal rule-following: somehow, we must embed this back-and-forth of collective error-correction within an institutional structure robust enough to withstand the enormous pressures that the interests at stake in alternate rule-interpretations will call forth. Because unlike [most] questions of linguistic or mathematical rules, everyone involved in the practice of constitutionalism cares very deeply (or ought to!) about which rule we're following. Indeed, only the most bloodless of rule-fetishists would deny that it is sometimes more important to grasp onto a different, better rule than to accept the consequences of the existing one. Values, interests, personal and communal histories and identities--all of these will loom far larger in the legal than in the [pure] linguistic case.

The irony here is that, in defusing the skeptical paradox, we've made the everyday practice of constitutionalism seem almost miraculous. But is this a bug, or a feature? How confident can we be--how confident are we--that we in the contemporary United States are, in fact, following the same rules? Are John Yoo and Marty Lederman displaying the dispositions required of public rule-followers? Were Antonin Scalia and Sandra Day O'Connor? To depersonalize things a bit: are the institutions we rely upon to ensure that we're all "tuned in" to the same constitutional frequency--from our educational system and most obviously our law schools, to Congress, the Presidency, the vast administrative apparatus and the courts, and of course our media ecosystem--up to the task?

The question is not whether there are any public rules of constitutional validity; of course there are. The question is rather one of degree: just how rule-governed, how constitutional, our system is--or could possibly be. Less so than we once thought, I suspect.

Goodness!

Now that Scott Lemieux has kindly linked to my inchoate ramblings about coordination games and the law, doubling this blog's cumulative pageviews in the space of an hour, I suppose I'd better put up some new posts. Stay tuned!