Let this be my annual reminder / that we could all be something bigger

A hypothetical syllabus for a graduate seminar in constitutionalism (broadly construed). Assuming 14 weekly meetings of 2 hrs. Constructive criticism welcome. It feels very ... busy, but I think there's value in an overview of this sort. (Hence the reliance on survey articles, SEP stuff, and reviews.) I'd definitely like to make it less US-centric. So ... thoughts?

----

This class is on constitutionalism. It is not a class on constitutional law, and it is especially not a class on American constitutional law, although American voices will get disproportionate representation in the readings. While we will discuss the legal aspects of constitutionalism, one of the primary themes of the class is just how much more there is to the subject than can be found in the case law of constitutional courts. In addition to constitutions as “higher law,” then, we will be looking at constitutions as institutional settlements that simultaneously empower and limit the organs of the modern nation-state. We will also look at constitutionalism as an aspect of political identity, both for individuals and for states. Keeping these varied perspectives in mind, we will then tackle some of constitutionalism's most vexing problems: the mechanisms and legitimacy of constitutional change; the meaning and enforcement of constitutional rules; conflicts between constitutionalism and democracy; and the morality of constitutional constraint more generally.

In keeping with this pluralist agenda, the readings will draw from political science and philosophy as well as law. You will be required to write five short response papers (800-1000 words) and a research paper (6000-9000 words), and participate in class discussions. While I will prepare some introductory remarks each week to provide additional context for the readings and put my own spin on the material, the bulk of each class will be discussion format; the responses papers and class participation, therefore, count for half of your grade. Each response paper should engage with the current week's reading, although it may draw on previous material; so that we can all have a change to read that week's responses, they must be posted to Blackboard by noon on the previous day. You may pick which weeks to write on, although they must be selected in advance.

Session 1 – Introduction
Brief historical overview and introduction to the central problems of the course.

[38pp] Graham Maddox, “Constitution,” in Ball, Terence, James Farr, and Russell L. Hanson. 1988. Political Innovation and Conceptual Change. New York: Cambridge University Press.
[40pp] McIlwain, Charles Howard. 1947. Constitutionalism Ancient and Modern. Revised. Ithaca: Cornell Univ Press. Ch. 1, 2; at http://www.constitution.org/cmt/mcilw/mcilw.htm
[2pp] Selection from Paine, Thomas. 1998. Rights of Man, Common Sense, and Other Political Writings. Oxford University Press, USA.
[18pp] Waluchow, Wil, "Constitutionalism", The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), forthcoming URL = .

Optional: Gordon, Scott. 2002. Controlling the State: Constitutionalism from Ancient Athens to Today. Cambridge: Harvard University Press.

Session 2 – Foundations of legal theory
A whirlwind tour through the debates about the nature of law. What grounds the legality of particular laws or official acts?

[18pp] Green, Leslie, "Legal Positivism", The Stanford Encyclopedia of Philosophy (Spring 2003 Edition), Edward N. Zalta (ed.), URL = .
[21pp] Finnis, John, "Natural Law Theories", The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), forthcoming URL = .
[28pp] Postema, Gerald J. 1994. “Implicit Law.” Law and Philosophy 13(3):361-387.
[54pp] Shapiro, Scott J. 2007. “The 'Hart-Dworkin' Debate: A Short Guide for the Perplexed.” University of Michigan working paper, available at: http://ssrn.com/abstract=968657

Optional: [70pp] Hart, H. L. A. 1997. The Concept of Law. 2nd ed. New York: Oxford University Press. Especially ch. 5-7.
Optional: [25pp] Green, Leslie. 2005. “General Jurisprudence: A 25th Anniversary Essay.” Oxford J Legal Studies 25(4):565-580.
Optional: [75pp] Greenberg, Mark. No date. “The Standard Picture and its Discontents.” UCLA School of Law Research Paper No. 08-07. Available at: http://ssrn.com/paper=1103569 [Accessed March 21, 2008].


Session 3 – The constitution as law
What do constitutions look like from the perspective of law and legal philosophy?

[8pp] Perry, Michael J. 1998. “What is 'the Constitution'?” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part I only.
[25pp] Raz, Joseph. 1998. “On the Authority and Interpretation of Constitutions: Some Preliminaries.” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part I only.
[26pp] Alexander, Lawrence, and Frederick Schauer. 2008. “Rules of Recognition, Constitutional Controversies, and the Dizzying Dependence of Law on Acceptance.” In The Rule of Recognition and the U.S. Constitution, eds. Matthew Adler and Kenneth Himma. New York: Oxford University Press. Available at: http://ssrn.com/paper=1235202 .
[22pp] Adler, Matthew D. 2006. “Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism.” SSRN eLibrary. Available at: http://ssrn.com/paper=897988 .
[39pp] Dworkin, Ronald. 1997. Freedom's Law: The Moral Reading of the American Constitution. Cambridge: Harvard University Press. Introduction.
[15 pp] Lüth decision of the Federal Constitution Court of Germany, BVerfGE 7, 198.

Session 4 – The constitution as institution
What picture emerges if we focus on constitutions as defining the set of governmental institutions extant in a polity?

[40pp] Llewellyn, K. N. 1934. “The Constitution as an Institution.” Columbia Law Review 34:1.
[66pp] Young, Ernest. 2007. “The Constitution Outside the Constitution.” Yale Law Journal 117:408-473.
[56pp] Hansen, Mogens Herman. 1999. The Athenian Democracy in the Age of Demosthenes: Structure, Principles, and Ideology. Norman: University of Oklahoma Press. Ch. 4, 13.
[10pp] Extract from 2nd Certification Decision, Constitutional Court of S. Africa.
[23pp] Vile, M. J. C. 1998. Constitutionalism and the Separation of Powers. 2nd ed. Indianapolis: Liberty Fund. Ch. 1; ch. 2 is optional.
Extracts from the Constitution of South Africa.

Session 5 – Constitutions and identity
Can a constitution be understood without seeing it as somehow rooted in the society and the people who live under it? What role do constitutions have in shaping national identity?

[5 pp] Loughlin, Martin. 2005. “Constitutional Theory: A 25th Anniversary Essay.” Oxford J Legal Studies 25(2):183-202. Parts C and D.
[16pp] Habermas, Jürgen. 2003. “Toward a Cosmopolitan Europe.” Journal of Democracy 14(4):86-100.
[10pp] Extract from Burke, Edmund. 2002. Reflections on the Revolution in France. Stanford: Stanford University Press.
[37pp] Jacobsohn, Gary Jeffrey. 2006. “Constitutional Identity.” The Review of Politics 68(03):361-397.
[25pp] Barker, Ernest, and Ernest Barker. 1962. The Politics of Aristotle. New York: Oxford University Press. Book 3, esp. parts 3, 6-13.
Extracts from the Constitutions of Turkey, France, South Africa.

Session 6 – Enforcing the constitution: judicial solutions
Can courts guard the constitution? What are the conditions that make it possible?

[43pp] Holmes, Stephen. “Lineages of the Rules of Law,” in Przeworski, Adam, and José María Maravall. 2003. Democracy and the Rule of Law. New York: Cambridge University Press.
[25pp] Hilbink, L., T. Moustafa, and A. W. Pereira. 2007. “Courts and Judges in Authoritarian Regimes.” World Politics 60:122-45.
[5pp] Federalist 78. In Hamilton, Alexander et al. 2003. The Federalist Papers. New York: Signet Classics.
[26pp] Graber, Mark A. 2005. “Constructing Judicial Review.” Annual Review of Political Science 8:425-51.
[14pp] Whittington, Keith. 2005. “'Interpose Your Friendly Hand': Political Supports for the Exercise of Judicial Review by the United States Supreme Court.” American Political Science Review 99(04):583-596.

Session 7 – Enforcing the constitution: beyond judicial review
What other mechanisms besides courts can be used to enforce constitutional rules?

[12pp] Frey, Bruno S. 1997. “A Constitution for Knaves Crowds out Civic Virtues.” The Economic Journal 107(443):1043-1053.
[10pp] Federalist 47-51. In Hamilton, Alexander et al. 2003. The Federalist Papers. New York: Signet Classics.
[21pp] Smulovitz, Catalina. “How Can the Rule of Law Rule? Cost Imposition through
Decentralized Mechanisms” in id.
[46pp] Hansen, Mogens Herman. 1999. The Athenian Democracy in the Age of Demosthenes: Structure, Principles, and Ideology. Norman: University of Oklahoma Press. Ch. 8.

Session 8 – Constitutional change
How do constitutions change? How much change is good?

[19pp] Schauer, Frederick. 1995. “Amending the Presuppositions of a Constitution.” In Sanford Levinson, ed., Responding to Imperfection: the Theory and Practice of Constitutional Amendment. Princeton: Princeton University Press.
[24pp] Balkin, J. M., and R. B. Siegel. 2005. “Principles, Practices, and Social Movements.” University of Pennsylvania Law Review 154:927.
[45pp] Balkin, J. M., and Sanford Levinson. 2006. “The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State.” Fordham Law Review 75(2).
[32pp] Holmes, Stephen, and Cass R. Sunstein. 1995. “The Politics of Constitutional Revision in Eastern Europe.” In Sanford Levinson, ed., Responding to Imperfection: the Theory and Practice of Constitutional Amendment. Princeton: Princeton University Press.
[2pp] Extract from Burke, Edmund. 2002. Reflections on the Revolution in France. Stanford: Stanford University Press.
[27pp] Jacobsohn, Gary Jeffrey. 2006. “An unconstitutional constitution? A comparative perspective.” Int J Constitutional Law 4(3):460-487.

Optional: [26pp] Vernon Bogdanor. 2005. “Constitutional Reform in Britain: The Quiet Revolution.” Annual Review of Political Science 8:73-98.
Optional: [40pp] Kersch, Kenneth I. “How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and the Freedom of Speech.” Princeton Law and Public Affairs Working Paper No. 06-003. Available at: http://ssrn.com/paper=908322 .

Session 9 – Constitutionalism and democracy
[8pp] Habermas, Jürgen. 2003. “On Law and Disagreement. Some Comments on 'Interpretative Pluralism'.” Ratio Juris 16(2):187-194.
[43pp] Freeman. 1990. “Constitutional democracy and the legitimacy of judicial review.” Law and Philosophy 9(4):327-370.
[61pp] Waldron, J. 2006. “The Core of the Case Against Judicial Review.” Yale Law Journal 115.
[20pp] Devins, Neal. 2006. “The D'Oh! Of Popular Constitutionalism.” Michigan Law Review 105:1333.

Session 10 – Constitutional meaning
How can we figure out what the constitution means? Does the very existence of disagreement imply something about meaning?

[33pp] Paulsen, M. S. 2006. “How To Interpret the Constitution (and How Not To).” Yale Law Journal 115(2037).
[19pp] Perry, Michael J. 1998. “What is 'the Constitution'?” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part 2.
[20pp] Raz, Joseph. 1998. “On the Authority and Interpretation of Constitutions: Some Preliminaries.” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part 2.
[47pp] Scalia, Antonin. 1998. “Common-Law Courts in a Civil-Law System.” In A Matter of Interpretation: Federal Courts and the Law, ed. Amy Guttman. Princeton: Princeton University Press.
[51pp] Berman, Mitchell N. 2007. “Originalism is Bunk.” SSRN eLibrary. Available at: http://ssrn.com/paper=1078933 [Accessed August 22, 2008].

Optional: chapters on India, Germany, and Canada in Goldsworthy, Jeffrey. 2007. Interpreting Constitutions: A Comparative Study. New York: Oxford University Press.
Optional: Samaha, A. 2008. “Dead Hand Arguments and Constitutional Interpretation.” Columbia Law Review 108.

Session 11 – Constitutionalism and administrative discretion
From either an institutional/functional or aspirational perspective, much of what is considered “administrative rule-making” has a constitutional dimension. Can the vast discretion vested in most states' administrative agencies be squared with constitutional theory?

[21pp] Luban, David. 2002. “The Publicity of Law and the Regulatory State.” Journal of Political Philosophy 10(3):296-316.
[19pp] “Introduction,” in Dyzenhaus, D. 2004. The Unity of Public Law. Hart Publishing.
[22pp] Shapiro, Sidney A., and Richard W. Murphy. “Eight Things Americans Can't Figure Out About Controlling Administrative Power.” Administrative Law Review, Vol. 60, 2008. Available at: http://ssrn.com/paper=1162872 [Accessed August 8, 2008].
[41pp] Vermeule, Adrian. “Our Schmittian Administrative Law.” Harvard Law Review, 2009. Available at: http://ssrn.com/paper=1126726 [Accessed August 19, 2008].
Optional: [51pp] Dyzenhaus, David, and Evan Fox-Decent. 2001. “Rethinking the Process/Substance Distinction: Baker V. Canada.” The University of Toronto Law Journal, Vol. 51, No. 3, pp. 193-242. Available at: http://ssrn.com/paper=1090260 .
Optional: [67pp] Rubin, E. 2004. “The Myth of Accountability and the Anti-Administrative Impulse.” Michigan Law Review 103:2073.

Session 12 – Executive constraint and war
Is there something about war that makes it inapt for constitutional control, or any sort of rule-governance? Can emergency powers be constitutionalized? If so, should they be?

[30pp] Ferejohn, John, and Pasquale Pasquino. 2004. “The law of the exception: A typology of emergency powers.” Int J Constitutional Law 2(2):210-239.
[3pp] Elster, Jon. 2004. “Comments on the paper by Ferejohn and Pasquino.” Int J Constitutional Law 2(2):240-243.
[28pp] Dyzenhaus, David. 2004. “Intimations of legality amid the clash of arms.” Int J Constitutional Law 2(2):244-271.
[23pp] Coomaraswamy, Radhika, and Charmaine de los Reyes. 2004. “Rule by emergency: Sri Lanka's postcolonial constitutional experience.” Int J Constitutional Law 2(2):272-295.

Session 13 – Constitutional morality for officials
Should officials treat constitutional restraints as morally obligatory? If so, which ones? Can a conscientious official ever be a good person?

[18pp] Goldman, Alan H. 2006. “The Rationality of Complying with Rules: Paradox Resolved.” Ethics 116(3):453-470.
[21pp] Walzer, Michael. 1973. “Political Action: The Problem of Dirty Hands.” Philosophy and Public Affairs 2(2):160-180.
[17pp] Kleinerman, B. A. 2005. “Lincoln's Example: Executive Power and the Survival of Constitutionalism.” Perspectives on Politics 3(04):801-816.
[30pp] Extract from Graber, M. A. 2006. Dred Scott and the Problem of Constitutional Evil. New York: Cambridge University Press.
[52pp] Fox-Decent, Evan. 2005. “The Fiduciary Nature of State Legal Authority.” Queen's Law Journal, Vol. 31. Available at: http://ssrn.com/paper=1090292 [Accessed February 13, 2008].

Optional: [140pp] Barak, A. 2002. “A Judge on Judging: The Role of a Supreme Court in a Democracy.” Harvard Law Review 116:19.

Session 14 – Constitutional morality for citizens and subjects
What moral status should ordinary citizens accord constitutional rules and institutions? And to what extent do the answers to all these questions depend on whether the state properly encompasses the an appropriate group of people?

[16pp] Green, Leslie. "Legal Obligation and Authority", The Stanford Encyclopedia of Philosophy (Spring 2004 Edition), Edward N. Zalta (ed.), URL = .
[29pp] Waldron, Jeremy. 1993. “Special Ties and Natural Duties.” Philosophy and Public Affairs 22(1):3-30.
[15pp] Mandela, Nelson. Opening statement of the defense case in the Rivonia Trial, Pretoria Supreme Court, 20 April 1964. Available at http://www.anc.org.za/ancdocs/history/rivonia.html.
[30 pp] Trapnel, X. N.d. “Consequentialist Constitutional Duties.”
[36 pp] Nasstrom, Sofia. 2007. “The Legitimacy of the People.” Political Theory 35(5):624-658.

Optional: [44pp] Jones, Benjamin F., and Benjamin A. Olken. 2007. “Hit or Miss? The Effect of Assassinations on Institutions and War.” SSRN eLibrary. Available at: http://ssrn.com/paper=986952 [Accessed March 24, 2008].
Optional: [12pp] Thoreau, H.D. 2003. “Civil Disobedience,” in Thoreau, H. D. Walden and Civil Disobedience. Barnes & Noble Classics. Available at http://theinfovault.net/vault/documentsbillslegis_files/Duty%20of%20Civil%20Disobedience.pdf
Optional: [210pp] Edmundson, William A. 1998. Three Anarchical Fallacies: An Essay on Political Authority. New York: Cambridge University Press.

On gaps, contradictions, and originalism

Just a brief clarification concerning the last post, as Larry Solum has emphasized in a response to another interlocutor that "One of the points of the New Originalism is that the semantic content of the Constitution sometimes underdetermines its application. That's a feature of the theory, not a bug." While I discussed the problem of gaps and contradictions in my post, I wasn't entirely clear about distinguishing two separate levels of indeterminacy that give originalists trouble in different ways. So let me try to restate this argument, which was merely implicit before.

While Solum acknowledges that semantic content underdetermines its application, he misses the force of the full critique. On the one hand, if we are genuinely restricting ourselves to literal semantic meaning or something very close to it, "underdetermination" is a huge understatement: literal semantic meaning gets us nothing but the really obvious provisions about 2 senators per state, etc. (Keep in mind, though, that deference even to literal semantic meaning requires smuggling in some assumptions, with which I take issue; I think it's quite possible for our criteria of constitutional validity to contradict and override even this thinnest, least controversial sort of meaning. This can be safely put aside, however.) But, as I argued, literal semantic meaning is just not the stuff constitutions are made of: if it were, the idea that they can effectively constrain and structure governments would be absurd. So we have to import some degree of pragmatic content--whether it's Solum's "clause meaning" or something else--to get anything workable at all.

Once we do this, however, we run smack into the interpretive pluralism--the deep disagreement about the criteria of constitutional validity--that Leiter so rightly brings up. (As I noted, it's actually an issue even with LSM, but less obviously so.) Whether we should view this pluralism as generating contradictions (a plurality of inconsistent but valid "constitutional moves") or gaps (when you have a plurality of inconsistent criteria covering some area of consitutional import, then this means you lack any criteria at all) is an interesting philosophical question, but the bottom line is the same. Semantic originalism is not just a theory that leaves certain applications underdetermined; whether or not one may or must use it is itself underdetermined (at least, I would say, from a mainstream positivist standpoint) on any realistic appraisal of American constitutional practice. It is because our highest strata of officialdom are populated by originalists and structuralists and legal process types and Dworkinians and on and on that gaps/contradictions exist in the norms of constitutional validity. And that can't be wished away--or at least, not at once; if every Con Law professor converts to semantic originalism tomorrow, then perhaps in 40 years ...

In short: there are at least two levels of indeterminacy related to constitutional meaning. One is the sort Solum highlights: the rule may not determine the application; semantic meaning won't get us very far (though, as highlighted above, this bites deeper than he acknowledges). The second is at the level of rule-identification itself--and it is this, I insist, that is fatal to the semantic originalist's claim of conceptual necessity.

Originalism wars: the empire strikes back

A nicely combative post by Brian Leiter has set off the latest battle in the Originalism Wars--and best of all, Larry Solum has responded at length with a more complete defense of his semantic originalism than I have seen elsewhere. Further contributions are here, here, here, here, and here. As before, I think it's a mistaken theory, so I'm very happy to see it laid out so clearly; hopefully this will help further contructive debate. Read the whole thing! All done? Good. Now, to give a brief roadmap of my argument:

First, the choice of Gricean sentence meaning or “clause meaning” versus intentionalist “speaker's meaning” is a false dichotomy. Indeed, Solum's shift from “sentence meaning” into “clause meaning” is an example of just how wide the range of possibilities is. Second, Solum's argument for original clause meaning (versus contemporary public meaning) is unpersuasive; as it happens, contemporary public meaning makes a great deal more sense. This is so because of what constitutions norms are, at least on a positivist line: the criteria of legality for the system as a whole. They must therefore supervene on actual practices—whether of officials, on the standard positivist line, or of We the People, on popular constitutionalist views—in an institutionalized way. But originalist modalities of argument, while clearly embedded within American practice, are not the only ones so embedded. Originalists, not living constitutionalists, thus bear the burden of proof in showing why what seem to be foundational practices of constitutional argument are in fact parasitic on originalist ones. Leiter suggests that moral argument is the only thing that could bridge this gap; I'm less certain, especially if one takes a more inferentialist approach to norm validity. But regardless, the typical arguments adduced—about the nature of law or of constitutions—actually cut in the other direction, towards living constitutionalism.

Whew. Let's take this one step at a time, now.

1.

Solum claims that we can usefully divide theories of meaning into textualist and intentionalist camps, with textualists looking to Gricean “sentence meaning” and intentionalists looking to Gricean “speaker's meaning.” While he acknowledges that this is an oversimplification, I insist that it is a dangerously misleading one. To get a sense of just how broad the space of options is, we can look to Paul Horwich's helpful discussion (Reflections on Meaning, p. 23, 27), where he distinguishes the “literal semantic meaning of a word,” which he uses to refer to

'the sense of meaning in which “I” has a single meaning in English, the same one that “Ich” has in German; in which “and” and “but” possess a common meaning, whilst diverging in pragmatic import; in which “everyone” covers all people, although a speaker may use it to ‘mean’, in a different sense, “everyone present”, or “everyone in Boston”, etc.; in which “She's a genius” does not mean either “She's incompetent” or “Let's give her the job”'

from the following other sorts:

(a)
What the speaker means on a given occasion by some word—where this is some temporary modification of its meaning in the language as a whole. The notion of meaning in which “The President” may be used, in virtue of the speaker's local intentions, to mean “The current President of France”.
(b)
What is said, in a given context, by the utterance of some sentence, the proposition expressed by a sentence-token. The notion of meaning in which “I am hungry” means different things depending, not on the speaker's intentions, but on who is speaking, and on when the utterance is performed.
(c)
The conventional pragmatic content of a term, its illocutionary force (going beyond the de dicto propositional constituent that is expressed by it). The respect of meaning in which “but” differs from “and”, and in which “I promise to go” engenders a specific obligation.
(d)
The full information conveyed by the making of a given utterance, i.e. its ‘conversational implicature’, that which the hearer may infer from the speaker's deciding, in the circumstances, to say what he does. The respect of meaning in which “There's no milk left” can mean “Would you buy some?”.
(e)
The non-literal meanings of an expression, including metaphorical and ironic meanings.

Now, we're clearly somewhere in the range of (b) – (e) when we talk about legal norms. Troy Booher's paper “Putting Meaning it its Place” (Law and Philosophy 25, 2006, esp. 398-408) does an excellent job of showing why constitutional meaning can't be a matter of pure semantics: we're interpreting particular utterances, not sentence types. So it's an open and fascinating question just how much pragmatic content should be included in the “meaning” we're looking for. And as I said, Solum seems to acknowledge this: his actual argument for “clause meaning,” in his “Constitutional Texting” article (p. 27), is exactly the right sort of context-sensitive investigation into the constitutional “conversational situation”:

“Clause meaning is the meaning that would be assigned to a clause, on the assumption that the clause was written with the knowledge that it would be ratified and interpreted by readers who would have very limited access to information about the framing and who would be under normative pressure to disregard any information that was not universally accessible.”

Note what's going on here: Solum is giving us a particular conception of meaning that is to be preferred to alternate ones because it makes the most sense of the Framers' attempt to legislate for the future, and our attempt to discover what they did (but not necessarily intended to do) in that attempt. These are normative considerations insofar as they are about how one should attribute meaning if one is to succeed at communication.

2. But while Solum's argument is the right sort, it is still quite wrong. His originalism, like most, fails to take seriously enough the positivist insight that the fundamental criteria of legal validity are practice-based. Our rule of recognition, if we wish to take a Hartian tack, simply cannot be, as Jack Balkin put it, “a continuing legal command addressed to us in the present.” Such a claim is vulnerable to the withering criticisms Hart leveled so long ago at Austin's “command theory” of law. Not the command but the rule that invests it with authority is fundamental, and whether or not the rule points to original rather than present public meaning is precisely the question and hence cannot be assumed. Moreover, it is a question that can only be answered by reference to present practice. Any other sort of inquiry is simply not an inquiry into our constitution, but rather a different constitution that might have crystallized around the same textual artifact.

Now, we needn't endorse what seems to be the standard gloss of Hart—that the Rule of Recognition is a duty-imposing rule on officials—for this to generate problems for originalism. Even if we take constitutional rules to be more purely constitutive (like the rules of chess, which cannot be said to impose obligations; I take this to be Marmor's view, though this may be a misreading) then the lack of convergence at this level—in particular, the lack of convergence on originalist argumentation—means originalists, not living constitutionalists, have the burden of proof. As Bruce Boyden notes in his response to Solum, non-originalist arguments do not sound “odd” at all; precedent, not original understanding, is the touchstone of American constitutionalism.

Solum might reply that the bar is higher than this, that living constitutionalists need to show “a well-established judicial practice of reading the Constitution in ways that are self-consciously inconsistent with the original public meaning.” But this is an entirely unwarranted shifting of goalposts: scholars have been demonstrating since at least Bobbitt's Constitutional Fate that, in fact, we do have interpretive pluralism (I recently came across a reference to a law review article that attempted to study this empirically, with predictable results, but I can't seem to find it right now—if anyone knows the one I'm thinking of, please let me know). As for the demand for “self-conscious inconsistency,” a practice of Xing may obtain even without its practitioners self-consciously repudiating Y, even if Ying may sometimes be inconsistent with Xing. The Canadian constitutional metaphor of the “living tree,” for example, is quite obviously non-originalist, despite the tree's continuity with its roots.

Solum claims that "even a moment’s reflection reveals that there are serious problems with contemporary public meaning" as a semantic theory; I believe this is precisely backwards. Nothing in "contemporary public meaning" requires we treat the phrase "domestic violence" as encapsulated in the Constitution as meaning "spousal, child, and elder abuse,” as Solum and even Balkin seem to suppose. The contemporary meaning of “domestic violence” is simply different in constitutional versus non-constitutional contexts; this is absolutely normal, reflecting the fact that terms of art will often resist broader linguistic shifts. This example should remind us to take with a grain of salt any warnings that abandoning originalism means being left adrift on a sea of meaning, with nothing to hold onto—robust institutional factors that work to conserve meaning are plentiful, precedent being only the most obvious and formal among them. Every difficulty that plagues attempts to discern some unique contemporary meaning within a contested legal practice is equally present in attempts to do the same for a time period in the past, with all of the familiar historical/epistemic hurdles tacked on for good measure. Looking to contemporary meaning is no more viciously circular than looking to contemporary meaning for the definition of words; something can be "objective" by virtue of interpersonal standardization and convergence.

Now, contemporary public meaning does require that, if constitutional practice came to redefine "domestic violence" to have its modern sense within constitutional discourse, then that would be that--but this is a feature, not a bug. "Contemporary public meaning" takes seriously HLA Hart's recognition that, when it comes to constitutional change, "nothing succeeds like success"; the fact of a change cannot be disputed by questioning its legitimacy. (Though one can attempt to reverse it by drawing on still-extant constitutional resources that remain in tension with the shift.) "Original public meaning," by contrast, refuses to accept the possibility of illegitimate change. And this is why I keep insisting that it is the originalist, not the living constitutionalist, who is confusing ought for is.

Semantic originalism, then, is doubly false: false because constitutional meaning is surely more than literal semantic meaning, and false because we needn't restrict ourselves to the original version of whichever sort of meaning that turns out to be. But where does this leave us? Is there answer simply that, where we lack convergent practice, the constitution runs out—and that this covers both specific constitutional norms, and norms of interpretation? And that therefore the only interesting questions that arise once we enter this realm of constitutional dissonance are purely moral ones—about which norms ought to be promoted (with the hopes of eventually embedding them so deeply in constitutional practice that they become hegemonic), etc.?

Quite possibly. This seems to be Leiter's view, and there's a lot to be said for it; Liam Murphy seems to lean this way as well. It's often hard to tell where particular philosophers stand, because few are explicit about whether the practices that constitute the rule of recognition / criteria of validity / what-have-you are in fact interpretive modalities or more concrete norms (e.g., some particular formulation of the First Amendment's freedom of association). And if you agree with this view, moral considerations will probably push against originalism (I won't bother rehearsing the critiques here). The more a theorist thinks of the criteria of validity as being concrete norms, the less constitutional meaning we'll have; but focusing on constitutional inference, as Bobbitt and Dennis Patterson seem to do, just means we have contradiction where before we had gaps. But note that nothing in what I'm saying requires that originalists stop being originalists; it just requires them to admit that originalism is not the whole truth of American constitutionalism. If they wish to keep making originalist arguments, they can; they merely can't pretend that logical necessity compels it, and hence must acknowledge the moral considerations that bear on their choice.

Moreover, those originalists who focus on the nature of law as binding constraint (I'm thinking of Prakash in particular, and perhaps Lawson and Paulsen) must recognize that these considerations actually push against their position. These might or might not be considered moral considerations; one could consider them, as Fuller did and Waldron (at least sometimes) and Dyzenhaus seem to do, part of constitutionalism / legality itself. After all, if what you care about is certainty, predictability, and the like—if what you care about is having a known and stable framework within which people can live their lives—it's truly bizarre to suggest that the criteria of legal validity ought to be what they were taken to be 140 or 220 years ago, regardless of what they were yesterday. The simple truth is that for a constitution to in fact structure and constrain a government, it must not be seen as a command from the past; by refusing to allow up-front recognition of change, you merely force change to happen sub silentio, in unprincipled and unpredictable ways. (Of course, this applies to supermajoritarianism generally!)

To conclude, Solum insists that if living constitutionalists

"want to contest the truth of semantic originalism, they should lay their arguments on the table and make them explicit. If they want to deny the normative significance of the semantic content of the Constitution, but claim that the semantic content of other constitutional texts has normative authority and creates obligations of fidelity, they should produce the arguments that justify this distinction. And if they want to argue that some nonoriginalist theory of constitutional interpretation is justified on normative grounds, they need to produce the arguments."

I have focused here mostly on the first of these tasks, but living constitutionalists have been doing all three for decades. For example: the best arguments for statutory textualism—those of democratic authority and rule-of-law transparency—simply don't apply to supermajoritarian constitutions; the first is subject to dead-hand objections, and the second to incentive-incompatibility. And normative arguments for living constitutionalism are positively legion; that label fits at least half the books published by Americans on constitutional theory. In short: philosophy of language does not compel semantic originalism. Legal positivist considerations push against it, except as one modality among others. And moral and political philosophy can provide all the distinctions needed between statutory and constitutional originalism, in addition to moral considerations for living constitutionalism. The New Originalism is no more attractive than the old.

What would make me wrong?

Commenter William asks (1, 2), in response to my remarks on exclusive originalism, the tough-but-fair question of whether anything could convince me that I'm wrong. More specifically, he wants to know whether:

IF it were the case that most people have always thought that the Constitution was a "law" in the sense of the sort of thing that lawyers ought to be charged with interpreting, and if it ALSO were the case that lawyers have always been mostly originalists, would that constitute a sufficient argument for originalism?

So let me try to clarify what sort of practice-based arguments I believe are relevant to the nature and application of constitutional meaning, and why. As with everything on this blog, this is all very sketchy and tentative.

There are typically two separate questions involved in these debates: A, the nature of constitutional rules, and B, the best method[s] for discovering, understanding, interpreting, and applying them. One move that is made by many otherwise quite dissimilar theorists is to claim that the answer to A strongly constrains the answer to B. Dworkin (1986) thinks the nature of law as an "interpretive concept" that can justify the use of coercion within a political community gives you (or at least Hercules) a method for negotiating the back-and-forth between facts of political history and facts about morality that will lead you the truth about propositions of (constitutional) law. Kesavan and Paulsen (2003) think the nature of the constitution as an authoritative text proclaiming itself supreme law entails a particular sort of originalist textualism with specific roles for different kinds of contemporary evidence to play. Etc.

I think what unites pluralists--resulting, I suspect, in a serious rhetorical disadvantage--is that they (we, I suppose) don't think solving A gets you very far with B. On the contrary, understanding A explains why you shouldn't hope to find any sort of one-size-fits-all answer to B. (And some pluralists don't even seem to see A as a real question at all.) I look at the United States Constitution and I see a particular instantiation of the constitutionalist project of empowering and limiting government through public rules. So a rough answer to A is that constitutional rules are simply those accepted as regulating good inferences about constitutional validity. Constitutional meaning is an emergent and possibly heterogenous property of successful constitutional argument over the document.

Within the American version of this project, the constitutional text plays a peculiar role: it's a supreme written text within a common-law system, and a blueprint for governmental structure that is silent with respect to a great deal of what the state actually does and how (compare). If we want to know how this all works, we have to look and see. But already this very deflationary conceptualization suggests that given reasonably uncontroversial assumptions about American political development, how institutions and social meanings change, and the political use of symbols, one ought not expect too much uniformity.

But what about William's hypothetical? What would it mean if most people thought that the Constitutional was "law" in a leave-it-to-lawyers sort of way, and if lawyers were always originalists? A lot turns on what is meant by that last conditional. Suppose we take it to imply universal agreement to the claim that "the meaning of a constitutional/statutory provision is fixed at its enactment" (call this claim F). Some might be expectations originalists, some might put more weight on precedent than others, some would believe some clauses to reference moral truths, but none would deny that core tenet. In such a world, I'd probably have to sign onto some variant of originalism, yes.

But possibly not. It all depends on how F is deployed in legal reasoning, and what happens when it seems to conflict with other principles of constitutional law. How are lawyers trained to deal with F--do they spend a lot of time studying and practicing originalist theories of statutory and constitutional interpretation, compared to the time they spend on, e.g., common-law reasoning? If it turns out that F is only rarely brought into play (when precedents are thin on the ground, say), and judges routinely allow F-based arguments to be outweighed by other sorts of reasoning without being countered directly, then I think a theorist would have reason to deny the truth of exclusive originalism concerning constitutional meaning.

In other words, it would not be absurd in that hypothetical to assert that F, despite being both universally affirmed and theoretically "deeper" than, e.g., claims about the validity of secret drafting histories, was actually not particularly central to the practice of constitutional law. Now, it would be foolish and possibly malpractice for me to assert not-F while arguing a case in court; I ought merely use arguments that avoid issues of original meaning entirely. But the question here is about the theorist or judge, not advocate. (We care about citizens and politicians, too, but the hypo is explicitly about an artificially legalist constitutional culture.)

Perhaps the originalist impulse flows from an insistence on formal coherence among principles of constitutional meaning and an attraction to "deeper" (e.g., F) over "shallower" ones (e.g., "drafting history may never be consulted"). But I don't think this is always the right way to go with constitutions; sometimes the "deeper" principles should give way. This by no means implies that "anything goes"; constitutional rules exist and one can misinterpret them, both by making bad arguments from within particular modalities and by failing to give proper weight to the proper forms of argument. As for what that balance is, alas, my theoretical commitments force me to admit that I simply don't have enough exposure to the actual practice to have any confidence in my views. It's possible that the correct balancing really is to privilege original meaning over all else, but given the considerations above, I would need to see much more than a tradition of lip service to warrant concession.

[Still trying to sort out the Leiter-on-disagreement stuff.]
[Yes, a lot of this is influenced by Dennis Patterson's Law and Truth.]

Griffin vs. originalism -- coming soon!

More on Leiter and disagreement soon.

Stephen Griffin has put up something of a precis of his upcoming article attacking exclusive originalism--the sort that proclaims original meaning to be the only legitimate locus of meaning, with all other interpretive techniques valid only insofar as they are proxies for it. Unsurprisingly, I'm quite interested to see the finished piece; I'm sympathetic to his goal, and his points seem quite solid.

I'm particularly interested in how he develops his first critique, which I see as the more essential: showing that other modalities of interpretation have a central place in our constitutional tradition, and that originalists therefore face a heavy burden of justification in showing that they ought to be jettisoned.

My worry is that there's a reasonably strong counter to this move that must be acknowledged and refuted. The originalist can claim that [some] nonoriginalist modalities have a real place in ascertaining constitutional meaning, but that meaning itself is nonetheless fixed at ratification/amendment; the use of precedent or structural considerations can only be instrumentally justified as the best way to remain true to this meaning over time. Something like this seems to be Solum's view: his "Constitutional Stare Decisis" presents an essentially lexical ordering of precedent, plain meaning, structure, original meaning, and rule-ishness as considerations ... and yet despite the lowly place original meaning is assigned in the algorithm, his is still a "formalist legal reasoning that aims at the interpretation and application of the original meaning of the Constitution."

This objection does two things. First, it provides a more credibly positivist rejoinder to the claim that our constitutional practice just isn't exclusively originalist than does the typical "history-of-usurpation" one. What I mean is that no constitutional theory can assert that official practice is wholly detached from the constitutional rules; this would fail to acknowledge that we are seeking the meaning of our constitution, not restoring a lost one. But a sophisticated originalism can explain away the persistence of alternate modalities by showing them to be consistent in theory with exclusive originalism, even if misapplied in practice. Second, it gives reasons--reasons immanent within the practice of constitutionalism and legality--for preferring this view of meaning. A number of authors elaborate on the Marshallian idea that interpreting the constitution is just saying what the law is: original meaning + formalist method is what it means to be bound by law, and attempts to deny this go against the very point of legality.

My four readers will know that I don't think this argument works. But it's an incredibly seductive one, especially insofar as it may well work for statutes: the most sensible understanding of the constitutional allocation of legislative authority might be an originalist one. So where does the constitutional argument fail?

I see two points of attack. The first is to refuse to give ground in interpreting our legal practices: claiming that the varities of constitutional argument are (insofar as they are valid) simply guides to original meaning is false to the reality of constitutionalism, a failure to accept the facts on the ground. While this tack of 'textual fundamentalism' might, for example, be valid in the interpretation of authoritative religious documents, this is only because of the peculiar nature of divine authority at work in such cases--while we revere the Founders, we don't take it that far. In short, this attack just presses the positivist argument harder: you're not talking about our constitution, you're talking about one we used to have. There's no more need to defend this argument against "but it can't change like that; it says so itself!" than there is to defend the legality of the reconstruction amendments' ratification: the fact of practice is fundamental, the justification secondary. (Perhaps this is what Griffin does in his article; the post hints at this.)

The second attack takes on what I think of as the Marshallian Fallacy--the claim that, as some sort of analytic truth, "constitutional meaning:constitutional text::statutory meaning:statutory text". (Repeating the Supremacy Clause loudly is not an answer.) The first step is to see just how question-begging it is: why on earth would we understand the meaning of our legal criteria of validity--what it takes for a statute (for example) to be consistent with the constitution--by simply looking to how we understand the meaning of that statute? No: precisely because of the supremacy of constitutions, statutory interpretation must be guided by considerations internal to the nature of the constitution rather than the other way around. Originalism's (possible) suitability to the outputs of the constitutional structure has basically nothing to do with its propriety for understanding that structure.

Once this is recognized, I think the legality argument falls to pieces. Because to the extent that the nature of statutory meaning can be debated (rather than simply fumbled about for by Thinking Like a Lawyer), the arguments are going to go to the nature of Congressional and executive branch authority, and similar considerations internal to the constitutional structure (or republican theory by reference). And any attempt to apply these arguments to the meaning of constitutional provisions is going to founder on the devastating dead-hand objections that have long been recognized (Marmor's article is a nice, brief treatment). Precisely because of the Framers' relationship to us, arguments from within legality are going to cut precisely the other way: against originalism and towards precedent, established practice, contemporary meaning, and the like.

I think it is only by making arguments of this sort that the seductive appeal of originalism can be defused. For 'it takes a theory to beat a theory' reasons, I suspect that only by showing the propriety and appeal on grounds of legality of nonoriginalist theories of meaning can this battle be won.

*: To forestall objections that I'm misattributing claims to Solum: his argument-from-legality is about neoformalist reasoning simpliciter, and he simply assumes original meaning. But I think some authors have in mind similar arguments at the level of meaning, and see them not as instrumentalist, exactly, but as functional: for constitutions to be what they are, we need OM.

As for Solum's affirmative defense of original meaning as conceptually necessary, here and here ... I'm not convinced. The sentence meaning of a constitutional clause at the time of its enactment is indeed fixed by the time and audience of that clause; but the sentence meaning of that clause right now was not so fixed. It would be a reductio of Grice to think that the first declamation of each unique English sentence fixed its sentence-meaning forever, and I think it equally wrong to insisting that each textual instantiation fixes it for that text. The only warrant for so claiming is sneaking in pragmatics: the contextual fact that the abstracted-intentions that constitute sentence meaning, when dealing with a text, are typically fixed on its time of creation. Indeed, Solum's refinement of "clause meaning" as a subset of "sentence meaning" adds in precisely the contextual background ("1) that the clause is part of the United States Constitution, (2) that it was part of a particular type of legal document, (3) that it was uttered in the context of the whole document") that I insist is both implicit and a question of pragmatics in every extraction of sentence meaning from texts. Solum already concedes, by this refinement, that the sentence meaning of constitutional texts is constituted by particular genre conditions unique to legal/constitutional ones; it's unclear what then justifies the insistence on time-fixity if not something like the Marshallian-functionalist argument. Whew!

Leiter against Dworkin, the continuing series

I love reading Brian Leiter's articles. He does a great job combining clarity with erudition, making clear where his arguments fit in with those that have been advanced by others while avoiding the temptation to romp over a field of defeated straw men. (While his readings of Dworkin aren't exactly "generous," he's hardly guilty of distorting the substance of Dworkin's arguments, even if his conclusions about their merit are rather vituperative^*.) His newest paper, available here, doesn't disappoint: I think it's his clearest and most persuasive articulation yet of why he thinks Dworkin's argument-from-disagreement--as glossed by Scott Shapiro in his wonderful The Hart-Dworkin Debate: A Short Guide For The Perplexed--fails. But I'm still not entirely convinced that theoretical disagreement can be pushed to the side.

In a nutshell, Leiter's argument is that 1, we have no good reason to treat disagreement about criteria of legal validity as the central problem for theories of general jurisprudence, since the massive agreement that characterizes legal systems is of far greater import; 2, to the extent we care about understanding such disagreement, the two natural positivist explanations (there is no truth of the matter about some legal disputes, and thus claims to the contrary are either mistaken or disingenuous) are good enough. Positivism, then, remains superior to Dworkinian interpretivism on the basis of the standard criteria (simplicity, consilience, conservatism) of theory selection. (But go read it. It's very good. Shapiro's, too, if you haven't.) Now, I'm not convinced that interpretivism is the way to go (nor do I think Shapiro's suggested solution works, either). I do think, however, that disagreement about the criteria of legal validity cannot be satisfactorily explained away by an error theory of the sort Leiter supposes.

To some degree this may be just a matter of emphasis. I care about constitutionalism, first and foremost; I look to general jurisprudence only insofar as it relates to this, and think it a mistake to just identify the legal system with the state apparatus. Since I don't really worry about, e.g., tort law or contracts, the fact of massive agreement on these topics isn't so salient. What concerns me is fundamental disagreement over the criteria for constitutionally legitimate activity, about the powers of and limits on the state, and here I just don't think you can consider the topic "marginal." I suppose that one could respond with the claim that, even here, the vast majority (however measured) of issues really are settled (even if perhaps in a decidedly suboptimal way); that's the difference between the USA and, say, Somalia or Iraq. But I just don't think this is good enough, at least not in the United States (which may be uniquely problematic in this respect). At the very least, the class of officials on whose practices constitutional criteria of validity supervene include a number executive and legislative branch actors, besides the usual Article 3 suspects ... and if you don't see deep disagreement over basic questions of constitutional authority there, I don't know what to say.

So the reason we cannot, as Leiter urges, be content with simply saying that constitutional validity norms supervene on convergent constitutional practice and that where such convergence fails, the norms run out, is that this is just not good enough for even a naturalized project of constitutional theory. What I mean by this is straightforward, and ultimately owes much to Leiter's own writings: we want to understand how it is that societies structure political institutions and procedures so that the emergent states are both empowered and constrained in credible, public ways. And to do this, we need a concept of constitutional norms that will tell us exactly how these norms supervene on the practice, what degree of convergence is required for truth-talk of them to be apt (such that disagreement reflects epistemic rather than metaphysical failure), and perhaps even how they reflect or incorporate extra-constitutional norms.

To clarify: I am not saying that a naturalized constitutionalism requires us to deny constitutional indeterminacy; that would be lunacy (or a solid reductio). But it does require us to explain the supervenience relation in a way that fits into this project--or, more pessimistically, to show us the limits of the constitutionalist project by highlighting the precarious nature of any such norms. Theoretical disagreement has to be a central problem for any theory of constitutionalism because the project is about creating structures that will withstand it.

In some ways, this might be seen as a naturalist analog of Raz's authority argument. But rather than claiming that our intuitions about legality show that laws must be individuated such that they could, in theory, guide conduct, the claim is that understanding the (social-scientific!) project of constitutionalism requires a theory of the meaning of consitutional norms, and their relation to the practices on which they supervene, rich enough to help us see when and to what degree they can be institutionalized and sustained^#. Even if many of the actors within the practice will--for predictable, Leiter-noted reasons--consistently overstate constitutional determinacy, we need to understand when and why there is or isn't a truth of the matter.

* -- "In any case, what the preceding shows, rather clearly, is that when Dworkin declares “there is no positive evidence of any kind that when…judges seem to be disagreeing about the law they are really keeping their fingers crossed” (as the Disingenuity Account would have it), what he really ought to have said is, “There may be lots of evidence, but I have made no effort to consider any of it.”" -- Leiter, p.39. Ouch.

# -- This might lead towards Mark Greenberg's "rational relation" doctrine. Or it might not! Stay tuned!

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.

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.

Legal philosophers: please don't talk about coordination games any more

UPDATE, July 7th, see below.

---

Despite Les Green's best efforts (The Authority of the State, "Law, Coordination, and the Common Good"), this seems to be one of those inapt metaphors that just won't die. Some scattered thoughts on the use and misuse of game-theoretic "coordination games" in analyzing the normativity of laws or legal orders generally.

1. If game theory is to illuminate rather than obscure, practitioners must be clear about the players, strategy and information sets, and payoffs. They must show why this game (as opposed to slightly-modified versions that induce with different equilibria) is appropriate for understanding the real-world phenomenon in question. I almost never see this.

2. If the point of the model is to show why we should expect an exogenously imposed change in payoffs, or elimination/addition of strategies--in other words, explaining exogenous law, or the exogenous creation of an entire legal order--the shift cannot be a deus ex machina. What is the mechanism that leads from the original equilibrium to the imposition of sanctions or what-have-you? Who are the players that impose the sanctions; why and how do they do so?

3. Modeling constitutional choice is easy to do badly. It is rarely appropriate to model strategy sets as consisting of regime types. You can't "play" a regime; one emerges as the institutional embodiment of the intersecting strategies of others. If you're at a constitutional convention, you can vote for a regime type, but determining how votes translate into outcomes and payoffs is very tricky and entails hard counterfactuals. When does a vote of X induce factional violence, as opposed to multiple polities, as opposed to some uneasy status quo ante? If instead you wish to model a "state of nature" situation, there is no good reason to include private violence as within the strategy set but not include the violence of players constituting a state.

4. Once we allow for the full set of strategies--and violence--open to players in a state of nature situation, it is obvious that many equilibria will be awful, much worse than many non-equilibrium outcomes. Some equilibria will look like states, some will not. Some will have normatively desirable properties. Outcomes that describe a voluntarist legal order--no sanctions--are unlikely to be equilibria, which is a basic reason states reach for sanctions. Insofar as this model is supposed to explain the emergence of states, it will emphasize the importance of bargaining power, contingency, and path dependence, rather than justice or welfare.

5. Similarly, looking at ongoing polities as large-N games is unlikely to help legitimate the state. A full accounting of strategies and outcomes is likely to once again highlight contingency, power, and path dependence: the incentives that induce the players to go along with the state are rarely as stark or systemic as "my choice brings about system X." Individual sanctioning, rather than the collapse of the polity, generally does the work. This is old stuff, Hume and earlier.

6. None of this is to deny that citizens often do consider their governments legitimate, nor to deny that these beliefs often track (perceptions of) procedural, systemic properties rather than personal advantage. It is merely to note the ceteris paribus importance of state coercion.

7. The bottom line: if coordination game means something more stringent than "multiple equilibria which are local maxima for almost everyone"--in particular, if it means "multiple equilibria, each of which pareto-dominates non-equilibrium outcomes"--there is no reason to think it applies either to state-of-nature anarchy situations or to ongoing regime resist-or-support situations. But if we weaken it to the former definition, then the fact that a particular outcome is an equilibrium carries no normative weight beyond surmounting the "ought implies can" barrier. It is therefore misleading to use a term that carries such significant connotations of mutual advantage, both in game theory and in ordinary language.

8. And also: insofar as coordination games are taken to mean games where everyone plays "corresponding" or "matching" strategies in the multiple equilibria, it's just not clear how the idea of "correspondence" adds anything meaningful in the context of constitutional order and maintenance. It is a property of the emergent outcome, rather than the strategy of an agent considered alone, that makes a certain series of actions come under the description "following the constitution of polity X" rather than "disobeying Y" or "fighting for Z." Claiming that *only* outcomes like the first are equilibria is false to the reality of order's fragility and the diversity of human interests. Is the civil war in Iraq supposed to represent "matching" strategies among factions? If so, the idea of "coordination" adds nothing to that of equilibrium simpliciter; if not, then it's not generally applicable to questions of order.

Blah!

UPDATE: Just so clarify a bit, I'm not saying game theory can never be useful in legal philosophy; it can. I'm not even saying coordination games are never apt; Gerald Postema's "Coordination and Convention at the Foundations of Law," J. Legal Studies 1982, is perhaps the best example of it done right. My point is rather that there are so many ways of going wrong, so many traps that seem to catch even those who surely know better, that it should be used only as a last resort, and then with fear and trembling.

Some scattered thoughts on popular constitutionalism and social epistemology

Recent years have seen the blossoming of scholarly interest in both popular constitutionalism and social epistemology, but there has been little cross-fertilization between these two literatures. I think this is an oversight, and I'd like to sketch out some tentative connections between the two ideas. Popular constitutionalism has both descriptive/explanatory and normative aspects. On the descriptive side, it claims that constitutional practice is in fact shaped by the beliefs and actions of ordinary citizens rather than merely judges, scholars, or office-holders; on the normative side, it stands for the proposition that this is in some sense desirable—whether as a matter of political morality or constitutional accuracy. Social epistemology is rather less well-defined, but at least two research programs that fall under its header have clear applications to constitutionalism: the use of social-scientific methods to investigate the knowledge-producing properties of social structures, and the more theoretical work concerning attributions of doxastic states to collectivities.

On one conventional view of constitutional meaning, average citizens are irrelevant. This view is often grounded in a positivist view of law as grounded in a social practice or convention among officials such as that defended by H.L.A Hart. On this view, law just is whatever the rules of recognition accepted by officialdom (usually glossed as the courts) validate; so long as the system is minimally efficacious, average citizens need neither endorse nor even have knowledge of the underlying social practice. If we believe constitutions to exist primarily as rules of recognition—as the criteria for legality within a given society—citizens can thus remain ignorant of their constitution.

Not all versions of popular constitutionalism will conflict with this picture. One could coherently believe both that the meaning of the constitution is determined by the correct interpretation of the social practice of particular political elites and that popular views about constitutional meaning will often have a causal effect on that elite practice. One could add to this a normative claim that the people have a right to exercise this causal power. But again: neither of this views presents any difficulty for the elite-practice model.

The difficulty comes if we see constitutionalism as entailing something stronger than the “regrettably sheeplike” society imagined by Hart, and certain flavors of popular constitutionalism might well do the trick. This conception of constitutionalism would borrow from the aspirational conception of law developed by Lon Fuller and recently rehabilitated by Jeremy Waldron and focus attention on the ideal of constitutionalism as the subjection of the state to strong demands of publicity and restraint. In other words, we can speak of a state being more or less constitutional to the degree that its constitutional limitations are both real and known to be real. Moreover, the character of our discourse about constitutional meaning will change as we move from less to more constitutional polities: it will become more truth-apt, and we will be able to speak confidently about its objectivity.

On this view, the people do matter—not merely in a causal but a constitutive way. They matter because the public character of constitutions places restrictions on both the substance of the constitutional rules and the nature of the political and social institutions in which these rules are embedded. And here we see the connection to social epistemology: we need to understand how people come to have the beliefs they do about the political order, and the relationship between these belief-forming processes and the institutional structure of the polity.

Note that it is an open question how much actual knowledge on the part of the citizenry constitutionalism's publicity requirement demands. Certain republican understandings of constitutionalism that emphasize self-government and the collective choice of the people to live under these rules rather than other ones might push towards fairly strict requirements, which in turn would have quite drastic consequences for appraising actually-existing political structures. But this is not inevitable: one could defend an understanding of publicity that emphasized justified true beliefs in the binding and objective character of the constitutional rules, without requiring each citizen to have personal knowledge of those rules. (In order for the beliefs to be justified, of course, it would have to be the case that each citizen could in fact verify this if they chose.)

Ultimately, this idea of constitutionalism implies embedding the epistemological question of how one knows what the constitution is within the metaphysical question of what, in fact, constitutions are. But this is not a case of conceptual confusion or category error. Legal philosophers have long adduced epistemological constraints on the concept of law; for contemporary examples one need only look to Joseph Raz's argument for hard positivism, or Mark Greenberg's recent claim about the “rational relation” determination of legal content. In the case of constitutionalism, moreover, this move seems quite reasonable. Much of the confusion and controversy that besets constitutional theory lies in the difficulty of reconciling the descriptive, social-practice aspect with the aspirational nature of constitutions. Accepting this aspirational aspect, the demands of publicity that come packaged into any defensible understanding of constitutional government, results in a happy marriage: the aspirational elements turn out to be those that are themselves necessary for any coherent account of social rule-following more generally.

Note to self: may need to abandon all of this once I've fully digested this stuff.

When they came for the rule of law, I said nothing; I was, of course, no statute

Will Baude at Crescat Sententia objects to those who see the administration's "war on terror" policy as a threat to the rule of law, saying "the fact that powerful agents of the government justify themselves with constitutional arguments whose correctness can be debated is not an 'attack on the system' of law and lawyering, but rather a recognition of its true power." This seems mistaken to me, but mistaken in a way that's worth dissecting.

The argument seems to be that so long as political actors feel the need to justify their actions with legal and constitutional arguments, and so long as these arguments meet some very minimal threshold of plausibility (more or less: "some tenured professors at top schools have endorsed them"), their behavior isn't a threat to the rule of law--even if the arguments are rejected by most legal/constitutional experts, even if they refuse to adjust their behavior in response to legal/constitutional critiques, and even if this behavior is with the aim of greatly expanding executive discretion. This is so because the very act of *offering* these arguments serves to bolster the idea of legal and constitutional constraint; by contrast, imagine if the administration didn't even pretend what they were doing was legal or constitutional.

The obvious point, first, is that just because things could be worse doesn't mean they're not bad. But the more important point is that bad faith arguments for executive discretion, or weak arguments maintained in the face of overwhelming criticism, can sometimes be just as dangerous to rule of law values as explicit illegality. This is so for two reasons: first, there is an *inherent* threat to the rule of law from executive discretion; second, the rule of law requires that there be clear, known legal norms, *and* that those norms effectively constrain the powerful.

1. Executive discretion has always been difficult to square with the rule of law, because the entire point of allowing such discretion is the belief that, in some areas, it is more important to have the swiftness, secrecy, and particularism that only discretion affords than it is to act only in accordance with clear and promulgated rules. Obviously, then, a society committed to the rule of law cannot be one of untrammeled executive discretion; equally obviously, no modern nation-state can be so devoted to the rule of law so as to eliminate discretion completely (even A.V. Dicey acknowledged the propriety of, e.g., Acts of Indemnity in such cases).

When an administration claims that the scope of its discretion authority is as sweeping as this one has done, therefore, it is asserting that rule of law values are less important than other desiderata; it is claiming, in short, that we have too much Rule of Law. Perhaps the administration's claims are a plausible reading of our Constitution, though I doubt it; regardless, they are a change, and a retreat from the ideal of law-governed state action.

2. In the world of pure abstractions, there is no paradox in the idea of a dictatorship instantiating the rule of law: hypothetical Rex (or perhaps Hercules) would be such a paragon of enlightened virtue that he would clearly see how his general, promulgated norms applied to each situation and voluntarily act in accordance with them.

In our world, this is patently absurd.

It is a sad lesson of history that the powerful obey the law because they are compelled to, not because of their virtue (see Stephen Holmes' "Lineages of the Rule of Law," and this volume generally). The point of having independent review of state action is not that unreviewable conformity to the rules is impossible, but that it is not incentive-compatible. Ex post review is one of the ways we attempt to balance swift and particularist action with rule-of-law values; we allow for discretion within certain boundaries, or guided by certain standards, and insist on evidence that this was adhered to. When an administration attempts to limit review of its actions, just as when it tries to expand the scope of that discretion, it is claiming that we have too much constraint by law.

A more subtle point concerns the relationship of bad-faith or weak argument to the legal system. Baude is quite right that we would have much more to worry about if the administration simply announced that henceforth it wouldn't bother to consider the constitutionality of its actions; on the other hand, the outcry, impeachment, and disgrace that would follow would send a nice signal pour encourager les autres. I don't mean to endorse any general "the worse, the better" view of politics; my point is simply that the example is a bit of a red herring, because such blatant disregard for legality remains something that our political system can effectively deter.

Within the realm of what one can get away with, though, bad-faith/weak arguments have a particularly pernicious character. This is not simply because they diminish our confidence that the administration will in fact be bound by rules in the inevitable cases when independent review is impossible. They also introduce unnecessary uncertainty about the identity, and even metaphysical skepticism about the existence, of the legal and constitutional rules in question. This is because of the nature of public, political rules (here I get controversial); they are picked out by an idealized "cottoning-onto" reaction to examples of their use (apologies to Philip Pettit for the appropriation). As paradigmatic exemplars of this sort, the official policies of presidents inevitably shape the future development of the constitution and the laws.

What this means is that the idiosyncratic constitutional theories of presidents will *inevitably* introduce extra "constitutional dissonance" into the system, enlarging the set of "plausible" arguments. The wider this set of arguments, the harder it is to actually enforce constitutional and legal rules against those who would flout them, whether through political or judicial checks. This is not always a bad thing, on net: it may sometimes be the case that the current Constitution is a wicked one, and needs to be pushed in a more just direction, short-term indeterminacy be damned. No doubt this is the administration's view, at least among those in it who actually care about the Constitution. But even so, the cost to the rule of law is real, and must be acknowledged.

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.]