04 January 2005


Lawyers are arrogant. That's our nature; it's a necessary part (some of the time, at least) of what we do: represent combatants parties to a dispute, live or potential. But it bloody well shouldn't be a part of being a judge, even though judges (at least in this society) are lawyers.

What makes things worse is when academics—or, more commonly, parties with hidden (or not-so-hidden) personal/economic/corporate agendas—start espousing a particular, rigid interpretive method as a "one size fits all" solution to all of our legal problems. Sorry, but it's not simultaneously a dessert topping and a floor wax. Some rhetoric I noted on Professor Solum's useful site this morning—which I'm sure was, from him, merely shorthand for a much more complex and nuanced argument, but represents pretty much the entire argument of a lot of those with hidden agendas—indicates exactly how intellectually dishonest some proponents of particular means of understanding law really are.

On the one hand, it is no surprise that an originalist approach to constitutional interpretation would be politically controversial—after all, nonoriginalist jurisprudence has dominated the Court for more than sixty years and the political landscape has been shaped by those decisions in no small degree. On the other hand, the idea that restoring the original meaning of the Constitution is is [sic] simply beyond the pale does have an odd ring to it. Do you really mean that we couldn't have a system with more power for the states and less for the Supreme Court?

"Debate at Legal Affairs: Should Thomas Be Elevated To Chief?" (03 Jan 05) (emphasis added).

How do I detest thee (the argument, that is, not the arguer)? Let me count the ways—

  1. "The original meaning of the Constitution"? Let's assume for the moment that such a thing exists, which is far, far from possible; it is, after all, a collectively authored document. Let's further assume for the moment that Madison's extensive notes represent that meaning; they're certainly the best evidence we have. If our argument hasn't already collapsed of its own weight—it has; some of Madison's notes are self-contradictory—let's ask ourselves which Constitution we are referring to. Do we mean the Constitution that includes "three fifths of all others" in its calculation of our population? The one that restricts the right to vote to males? That's certainly possible; but then, what we have discovered is only one original meaning of the Constitution, and we still must choose among those texts for the one most meaningful to the dispute (live or otherwise) requiring the interpretation. In other words, we've opened one mysterious box and found another inside.
  3. Language is an imperfect mechanism. One of the things that law does particularly poorly is understand linguistics and theories of meaning well enough to accept them as part of an inquiry. Law and economics is a particularly relevant example. Economics is a powerful tool, particularly when considering transactions in the aggregate. However, it is far less helpful in the singular, because there exists no single economic transaction that is purely based upon wealth maximization between two parties with equal and adequate information and bargaining power, neither of whom is constrained by any external factors in either entering or timing the bargain. (That this ultimately means that business should welcome class litigation as a more-accurate means of reaching the proper economic result should remind one of that little concept called "enlightened self-interest," which should really be called "make the other guy pay for it.") Law and economics as it has come to be known today—and particularly when used as a policy foundation—too often assumes the accuracies of its original inputs, and therefore assumes the accuracy of its results. A particular painting might be "valued" at $10,000, and recovery for purposeful damage to that painting would therefore be limited to that value. Of course, that is $10,000 today; if it later turns out that said painting is the only accurate likeness of a historical figure, the value might be vastly greater in twenty years (or a century or two). So, then, why is the painting valued at $10,000? Because that's what people with no taste and too much money will pay for it. It does not account for the emotional value to, say, the subject's (or artist's, or even artist's patron's) family.
  5. Then there is the question of context. I've already invoked "three fifths of all others" once in this rant, so I'll try to find something else. Hmmm. Perhaps something from my own practice… like the Intellectual Property Clause:

    The Congress shall have Power… To promote the Progress of science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

    Art. I, § 8, cl. 8. In the 1780s, there did exist both music and still pictures. True, they were only reproducible (if at all) through the use of artificual intermediaries, such as written musical scores; but the clause itself contemplates "promoting Progress." So then, why were such restrictive terms used? And, if that has no significance, to what do we ascribe the "original meaning" of this clause? The "best" answer—"best" in that it simulaneously respects as much of the literal language as possible while acknowledging that, of its own terms, the clause contemplates change—is that the clause represents a rejection of the patronage system; but that is hardly obvious from the mere language, or certainly from the development of copyright law since!
  7. Does the Constitution even allow "original meaning" as a restrictive interpretive method in all circumstances? Part of its own text belies that rigidity:

    The Congress shall have Power… To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

    Art. I, § 8, cl. 18. This is part of the answer to the preceding conundrum. Although Congress might not be authorized by the IP Clause to protect music or paintings (or photography or motion pictures or…:), one can argue that the Necessary and Proper Clause gives it the power to do so if it is "necessary" to protecting "respective Writings and Discoveries." It's a fairly good argument; but it goes only to the scope of what may be protected, not to how things may be protected in the face of a specific statement of justification.

In the end, I think Marshall understated the intepretive problems with the Constitution when, in McCulloch v. Maryland, he declared that "it is a Constitution which we are expounding." Change in meaning occurs not just over time, but from context to context within time.

Of course, some of my skepticism of formalism, literalism, and originalism—which, too often, become part of some ideologically charged combustible mixture instead of, as Professor Solum sees them, as serious tools in the search for "Truth"—comes from my oddball background. As one who was for adult life before law school immersed in deadly serious considerations of dealing with various forms of fundamentalism in one's opponents, I can't accept any relative of fundamentalism as the sole means of dealing with anything. Sometimes, discerning "original intent" can be a useful starting point in interpreting a document; but that is all. My before-the-law background also includes extensive work with literary theory, and I have a healthy respect for the problems created by the intentional fallacy. That's before considering reverse transferrence, too.

So, then, I think Professor Solum's search for "the original meaning" and reliance upon some kind of formalism is ultimately a doomed one, at least at the Constitutional level. It might not be so doomed for other kinds of legal interpretation, though; when a statute on its face says it shall be construed strictly in favor of one party regulated by the statute, it's much more defensible. What this means is that both the interpretation itself and the interpretive method used to reach it are inherently bounded by context—unless one assumes, somehow, that there exists language allowing, and even compelling, perfect, time-independent communication. I've not yet found any; if someone else does, please let me know.