The Constitution as Ritual
One of the attractive features of originalism, I think, derives from the belief that sentences simply mean what they originally meant, either to the speaker or to the audience. This is a definitional argument: the definition of “to mean” is “what was originally meant,” and thus, by definition, if the Constitution does not mean what it originally meant it does not mean anything at all (in the same way that the set of all square circles is an empty set). I think this argument is mistaken. I think there are other sorts of sentences out there that have legitimate meanings that are not those necessarily assigned by either speakers or audiences (actual or potential) at the time.
Definitional originalism is usually argued for by analogizing the Constitution’s sentences to ordinary English sentences spoken in a quotidian context. For example, suppose you’re given a map with instructions written on it by a pirate telling you how to find his treasure. (OK, that may not be quotidian, but you could easily change the hypo to make it so: say it’s a grocery list.) If you want to find the treasure, you need to know what the words would have meant to the pirate’s likely audience. Fail to do that, and you fail to find the treasure.
Of course, if you really want to find the treasure, you need to know what the pirate actually intended, not just how audiences at the time would likely have interpreted the words. This is the point made by Stanley Fish recently in the Cardozo Law Review: the marks and sounds that ordinarily connote meaning are not “communications” at all unless and until they are communicating an intelligent being’s intended message. This, of course, is the old, disreputable “original intent originalism.” Fish argues, however, that whatever the practical difficulties it may pose, interpretation simply is the search for original intent. For example, if one knows that an alarm bell in a building is being rung by a monkey, it doesn’t mean “fire;” it means nothing at all. To paraphrase Hilary Putnam, Fish’s theory is that meanings just are in the head. And for the treasure map, it appears Fish is correct, at least if you want the treasure.
The problem with definitional arguments is that there is no good way to argue for them. If one’s interlocutors don’t buy the premise, then there is little to do but repeat it, perhaps while jumping up and down and waving one’s arms around. And it is particularly difficult if the proposed definition doesn’t cover the universe of possibilities.
So it is with Fish’s argument. If Fish were correct–that the only possible interpretation of a sentence is the one intended by the speaker–then once one receives definitive proof of what was intended, that should end all arguments as to what the sentence meant. But of course that’s ridiculous. People have long, drawn-out, and perfectly reasonable arguments all the time of the form: “That may have been what you intended, but that’s not what you said!” In other words, the sentence you spoke has a meaning other than what you intended, and I’m justified in interpreting it that way regardless of what you may have meant. This debate is over whether speaker’s meaning coincides with sentence meaning–the meaning a reasonable contemporary listener would place on it–and if not, which takes precedence. As near as I can tell from his article, Fish’s argument would make all such disputes meaningless babble. That’s a problem for Fish.
Most originalists now subscribe to the theory that what Constitutional sentences mean–what they should be interpreted to mean–is what they mean in this latter sense: the meaning that reasonable contemporary listeners would have assigned to the sentences. That is, most originalists now place Constitutional sentences in the same category as ordinary conversational sentences or correspondence, rather than the categories that would work best for Fish: codes, treasure maps, instructions. If the Constitution were a conversation or a speech (but not a treasure map), then focusing on original public meaning would be a perfectly plausible way to go about interpreting it.
However, original public meaning originalists (such as the New Originalists) face a Fish-like difficulty. Namely, there are still more categories of sentences, and the Constitution falls outside the domain where original public meaning holds sway. The Constitution is not a conversation or a speech or a treasure map. It is not even just a statute, as Jack Balkin implies in arguing that original meaning controls constitutional interpretation because it controls statutory interpretation. Rather, the Constitution is a declaration, by “We the People,” of the most fundamental principles of the government of our society. It is something more akin to a ritualistic affirmation, a cultural declaration of faith, along the lines of a religious ceremony or a pledge such as the Pledge of Allegiance.
And that puts the Constitution in a different class of communications than mere conversations, messages, instructions, and treasure maps. An affirmation, used as a ceremonial induction into a particular group or community, is continually being re-spoken as new members join. The meaning of the affirmation at any given time is thus the meaning ascribed to it by the relevant community at that time, not at the time it was first written. Take, for example, the responses required of Catholics at Confirmation:
Bishop: Do you reject Satan and all his works and all his empty promises?
Candidates: I do.
Bishop: Do you believe in God the Father almighty, creator of heaven and earth?
Candidates: I do.
Bishop: Do you believe in Jesus Christ, his only Son, or Lord, who was born of the Virgin Mary, was crucified, died, and was buried, rose from the dead, and is now seated at the right hand of the Father?
Candidates: I do.
Bishop: Do you believe in the Holy Spirit, the Lord, the giver of life, who came upon the apostles at Pentecost and today is given to you sacramentally in confirmation?
Candidates: I do.
Bishop: Do you believe in the holy catholic church, the communion of saints, the forgiveness of sins, the resurrection of the body, and life everlasting?
Candidates: I do.
This text is derived from the Nicene Creed, first set down in 325. Suppose at that time the people writing, reading, or speaking the Nicene Creed in 325 all had a different view from Catholics today of what the Holy Spirit was. It would make no sense to say that that understanding governs the Confirmation oath today, and that this is true due to the fact that the creed was written down. Surely what governs the meaning of the Confirmation oath today is what Catholics (as a group) today would understand it to mean, even though Catholics today are not the original drafters of the text.
The Constitution is a foundational set of rules and principles that defines the United States, just as the Confirmation oath is a foundational set of beliefs that defines the Catholic community. Of course, most people do not read the Constitution out loud and swear to uphold it — some government officials do, but not most ordinary citizens. But I don’t believe that changes the character of the document. Whether or not each individual citizen swears to uphold the Constitution, reads it aloud, or even reads it silently, by and large Americans understand its special importance in American political and legal culture and its significance in defining the United States as a nation. As Balkin himself has written, albeit in the course of making a different argument, “[e]ach generation must figure out what the Constitution’s promises mean for themselves.” They must figure it out for themselves because each generation adopts it anew, as each generation of Catholics affirms the content of the Nicene Creed anew.
In the course of adopting it anew, there is some opportunity for slippage in the meaning that is being passed from the prior generation. Over time, that meaning can come to nullify a clause entirely or change its meaning to the opposite of how the text was originally read. But, contrary to the standard objection of originalists (and the occasional practice of non-originalist judges), that change can’t happen overnight, without mass participation. One cannot validly affirm one’s own private Confirmation oath. There must be a community change, not a solipsistic event.
It might be thought that, whatever its merits as a description of community ideology, basing the interpretation of the document on the theory that it is agreed to anew every generation would compel the adoption of a similar basis for legitimacy. That is, reading the Constitution as continually reaffirmed requires basing its legitimacy as a binding document on that reaffirmation. And, as Randy Barnett argues, the Constitution’s modern legitimacy cannot be based on meaningful consent of the governed. Modern citizens are not given a choice whether to agree to the Constitution or not, except the Hobson’s choice of voluntary exile. Barnett argues that the only other option is to base the Constitution’s legitimacy on the written text that was originally ratified plus a very constrained ability to construe vague phrases in a way that does not contradict or nullify the text.
But I don’t think I’m committed to making that connection. I don’t think the mere fact that affirmations are sometimes voluntarily entered into means that their legitimacy necessarily derives from consent. Many, perhaps most, religious adherents would not view membership in their church as something that is truly optional. Leaving the church might be as much of a Hobson’s choice as moving to Canada. And yet one cannot be a Catholic and not take the Confirmation oath. Nevertheless, Confirmation is an important ceremony, so important it gets its own sacrament. It is a moment in which members pledge their fealty to a set of beliefs that defines the community. It gains its legitimacy, not from unfettered choice, but from the fact that the entire rest of the community one is formally joining has done the same thing.
Similarly, societal rules do not in general gain their legitimacy from consent. To take a trivial example, the rule that one must form a straight line to buy tickets at a ticket window has not been formally agreed to by anyone. No one asked me if I would prefer that Americans adopt the Beijing practice of forming a semi-circular scrum around the ticket window, which equitably rewards those who are in more of a hurry at the expense of those who have more time. (I’m curious how this will play out at the Olympic events this summer.) Nevertheless, I’m bound by that rule, simply from the fact that I’m an American in the United States. Each generation is similarly bound by the Constitution, as that document and its meaning is adopted by the community as a whole.