A Reply to "How Originalist Is Originalism?"
This is a response to questions the Fox asks on his blog. His questions might succinctly be stated thus: Is originalism permitted, forbidden, or mandated by the Constitution? If so, what is the content of originalism? Has anyone asked such questions?
In answer to the last question: I doubt that anyone has asked such questions about originalism. At least one person has, however, asked whether certain constitutional methods of interpretation are mandated, permitted, or forbidden by the Constitution: me. I don't know of anyone else who has addressed such questions sytematically. I aim to do so in my, as yet unwritten, substantial.
Since my project overlaps somewhat with the questions you asked, I will do my best to give you a non-useless description of what I'm doing and helpful advice on what sort of problems you might encounter if you do indeed decide to write your SAW on such questions.
So what question or questions does my substantial address? Here's a simplified version of the primary question: Does the Constitution forbid Justices to interpret the Constitution via Ackerman's Judicial Synthesis or Amar's Intratextualism? Let's suppose the Constitution mandates that it be interpreted via an originalist methodology. This would seem to spell the end of Judicial Synthesis and Intratextualism as interpretive methodologies. In what way is this "the end?" Well, normatively, these theories fail because Justices must abide by the Constitution and they could not do so if they used an unconstitutional method of interpretation to decide cases. These theories would also fail descriptively, under certain conditions, since they would be describing the Court as behaving illegally on a regular basis. Now, some theories are not trying to make sense out of the Court's decisions. Ackerman is. I don't believe Amar has tried to develop a descriptive account of the Court's doctrine. If he had, however, he definitely wouldn't be charitable to the Court and wouldn't care whether he described it as basically an illegal, incoherent entity. Most importantly, if you are advocating an unconstitutional method of interpretation your theory would seem to be, to put it politely, suspect.
Some history: The first person to ask such a question about interpretive methodology and address it in any rigorous way was - as far as I know - Nicholas Rosencranz, a former Yalie, but he only asked that question of statutory methods of interpretation. The article appeared in the HLR a couple years ago and its name escapes me.
General remarks: This question of constitutionality, although never directly addressed, has been tacitly addressed by, I venture, every theory of constitutional interpretation, from the prudentialism of Bickel to the paradigm case methodology of Rubenfeld. Each and every one of these theories assumes that its method of interpretation is at least permitted by the Constitution. To say otherwise just doesn't make sense. Now, whether these theories are constitutional is anyone's guess.
Criticizing these theories is tricky: It would seem that to prove some constitutional theory of interpretation, X, is unconstitutional you must commit yourself to some sort of interpretive methodology that will allow you to deduce that the Constitution forbids X, but doing so begs the question. There are ways around this seeming quasi-paradox - you might try a proof by contradiction - but still there looms a yet even larger question: If you read an interpretive methodology into the Constitution - if after all of your research you determine the Constitution says that it must be interpreted via an originalist methodology, for instance, how do you interpret the constitutional mandate that it be interpreted via an originalist methodology? "Originalistically" - but that begs the question. If you see what I'm getting at, you're probably inclined to believe that interpretive methodology is something extra-constitutional, perhaps even necessarily so. But the limit of self-referentiality is something that, to my knowledge, has not been systematically studied. Hofstadter talks about it at length in GEB and is worth reading on the subject. But I don't think there's anything comprehensive out there. Wittgenstein might have said something (useless) about it, but I don't remember.
If you understood my "originalistically" point, a moment's reflection will lead you to realize that textual attempts at justifying judicial review must fail, unless legal bootstrapping doesn't bother you.
Some final thoughts: Your post seems somewhat myopically "Framer focused." Remember that the Constitution was significantly amended during the Reconstruction - as you well know, and there's no reason to suppose that if interpretive methodology is indeed tacitly specified in the Constitution that the Reconstruction amendments did not amend the Constitution's interpretive methodology.
You must precisely formulate just what the Constitution says about Originalism. Does it permit itself to be interpreted originalistically or does it require it?
I would guess that no clear answer will emerge, but that current Due Process doctrine forces us to say that only one interpretive methodology works for reasons that I won't go into now.
Finally, I would consider the implications of the null hypothesis being true: The Constitution does not say specify an interpretive methodology.
In sum, Fox, I think you should write a paper on this.
In answer to the last question: I doubt that anyone has asked such questions about originalism. At least one person has, however, asked whether certain constitutional methods of interpretation are mandated, permitted, or forbidden by the Constitution: me. I don't know of anyone else who has addressed such questions sytematically. I aim to do so in my, as yet unwritten, substantial.
Since my project overlaps somewhat with the questions you asked, I will do my best to give you a non-useless description of what I'm doing and helpful advice on what sort of problems you might encounter if you do indeed decide to write your SAW on such questions.
So what question or questions does my substantial address? Here's a simplified version of the primary question: Does the Constitution forbid Justices to interpret the Constitution via Ackerman's Judicial Synthesis or Amar's Intratextualism? Let's suppose the Constitution mandates that it be interpreted via an originalist methodology. This would seem to spell the end of Judicial Synthesis and Intratextualism as interpretive methodologies. In what way is this "the end?" Well, normatively, these theories fail because Justices must abide by the Constitution and they could not do so if they used an unconstitutional method of interpretation to decide cases. These theories would also fail descriptively, under certain conditions, since they would be describing the Court as behaving illegally on a regular basis. Now, some theories are not trying to make sense out of the Court's decisions. Ackerman is. I don't believe Amar has tried to develop a descriptive account of the Court's doctrine. If he had, however, he definitely wouldn't be charitable to the Court and wouldn't care whether he described it as basically an illegal, incoherent entity. Most importantly, if you are advocating an unconstitutional method of interpretation your theory would seem to be, to put it politely, suspect.
Some history: The first person to ask such a question about interpretive methodology and address it in any rigorous way was - as far as I know - Nicholas Rosencranz, a former Yalie, but he only asked that question of statutory methods of interpretation. The article appeared in the HLR a couple years ago and its name escapes me.
General remarks: This question of constitutionality, although never directly addressed, has been tacitly addressed by, I venture, every theory of constitutional interpretation, from the prudentialism of Bickel to the paradigm case methodology of Rubenfeld. Each and every one of these theories assumes that its method of interpretation is at least permitted by the Constitution. To say otherwise just doesn't make sense. Now, whether these theories are constitutional is anyone's guess.
Criticizing these theories is tricky: It would seem that to prove some constitutional theory of interpretation, X, is unconstitutional you must commit yourself to some sort of interpretive methodology that will allow you to deduce that the Constitution forbids X, but doing so begs the question. There are ways around this seeming quasi-paradox - you might try a proof by contradiction - but still there looms a yet even larger question: If you read an interpretive methodology into the Constitution - if after all of your research you determine the Constitution says that it must be interpreted via an originalist methodology, for instance, how do you interpret the constitutional mandate that it be interpreted via an originalist methodology? "Originalistically" - but that begs the question. If you see what I'm getting at, you're probably inclined to believe that interpretive methodology is something extra-constitutional, perhaps even necessarily so. But the limit of self-referentiality is something that, to my knowledge, has not been systematically studied. Hofstadter talks about it at length in GEB and is worth reading on the subject. But I don't think there's anything comprehensive out there. Wittgenstein might have said something (useless) about it, but I don't remember.
If you understood my "originalistically" point, a moment's reflection will lead you to realize that textual attempts at justifying judicial review must fail, unless legal bootstrapping doesn't bother you.
Some final thoughts: Your post seems somewhat myopically "Framer focused." Remember that the Constitution was significantly amended during the Reconstruction - as you well know, and there's no reason to suppose that if interpretive methodology is indeed tacitly specified in the Constitution that the Reconstruction amendments did not amend the Constitution's interpretive methodology.
You must precisely formulate just what the Constitution says about Originalism. Does it permit itself to be interpreted originalistically or does it require it?
I would guess that no clear answer will emerge, but that current Due Process doctrine forces us to say that only one interpretive methodology works for reasons that I won't go into now.
Finally, I would consider the implications of the null hypothesis being true: The Constitution does not say specify an interpretive methodology.
In sum, Fox, I think you should write a paper on this.
posted by Mr. Misanthropic at 7:25 AM
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