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March 16, 2008
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.
Posted by Bruce Boyden at March 16, 2008 02:12 AM
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Comments
Bruce,
Fantastic post, but I have a question about this paragraph:
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.
I don't see why this is a problem for Fish at all, regardless of whether we are talking about a conversation or a treasure map or a constitution. Under what conditions is it interpretively legitimate to substitute sentence meaning for speaker meaning when speaker meaning is clear -- and different? Consider your example, where you respond to my ex post intention by insisting "That may have been what you intended, but that's not what you said!" Fair enough -- but if I now apologize for being unclear and inform you in no uncertain terms that I did not mean what you thought I meant, how could you justifiably respond "sorry, I'm going to go with my original interpretation"? How can you claim to be "interpreting" my statement in that situation, given that you are intentionally giving meaning to my words that you (now) know I did not intend?
Fish was my mentor when I was a literature grad student, so forgive me if I'm missing something obvious. Your thoughts would be most appreciated.
Posted by: Kevin Jon Heller at March 16, 2008 03:30 AM
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.
I agree with Kevin Jon Heller, and I will call it the "Ass Rule," because some people insist on being asses. Some people, mainly college students, will insist on being asses, and deliberately misintepret your statements to make you look like an ass. If you are a sailor who says, "I like bouys," you can bet that a rumor will start that you are a pederast. This is not legitimate interpretation; it is assinine. We should call it what it is and avoid teaching students to think this way. Especially because litigators, especially patent litigators, use this to destroy our economy, and it is part of the reason we are currently in a recession.
Posted by: Patent Litigators Are Asses at March 16, 2008 05:37 AM
Mitchell Berman's article, Originalism is Bunk, develops this argument. One of Berman's goals is to highlight the importance of the move from "originalism is the only way to determine meaning" to "originalism is the best way to determine meaning". The later position, by acknowledging that other ways of determining meaning are logically possible even if not desirable, moves the argument for originalism from a premise of logical necessity to a pragmatic debate over which of the possible ways of determining meaning is best. As such, it must compete for its position an interpretive hierarchy, not assume it.
Posted by: Lori Ringhand at March 16, 2008 08:39 AM
I think that the Constitution actually does get its authority today from explicit consent--the consent of office-holders who take the Article VI oath. However, as a result, the Constitution really only legitimately binds those who take the oath, not the population in general.
I think that the Constitution's indexical language--forms of "this Constitution," "we," "here," and "now," most prominently the "this Constitution" oath requirement of Artcle VI--implicitly define "the Constitution" as a historically-situated text. Accordingly, the historic textually-expressed sense (but not the originally-intended or originally-understood reference!) should be interpretively supreme. This is a different argument from either the "originalism is true by definition" or "originalism would produce the best results" arguments that Berman considers. I'm still working on that paper, though.
Posted by: Chris at March 16, 2008 09:21 AM
Kevin,
Your example serves to answer your question, as the Constitution cannot be interpreted in *that* sort of conversational or dialogic manner, for there are no longer the original interlocutors available for interrogation or clarification of meaning in just *that* sort of way. We lack the ability to clarify intentions in just the way you cite given the nature of the Constitution as a text, hence the dynamic not static character of foundational rules and principles, and hence the continual revision and adaptation of the law, a process that serves to reinforce or renew the legitimacy of a Constitution ultimately grounded in "popular sovereignty." In other words, it does make a world of difference whether or not we're referring to an ongoing conversation among interlocutors or the interpretation of a text. Indeed, this is why, with Philip Bobbitt, we can tentatively identify at least five kinds of constitutional *argument* (historical, textual, doctrinal, prudential and ethical [I would prefer the latter be christened 'moral' arguments) qua *argument.* Whatever the meaning of justice enshrined in the Constitution we have, importantly, been historically free to deepen and widen its meaning over time, given our freedom, as judges or as citizens, to reflect on moral principles (cf. here Dworkin's conception of civil disobedience). And this provides one indirect reason to account for the fact that although laws may be repealed or overturned on the basis of fresh (changing or contemporary) Constitutional interpretation, we do not speak of those earlier laws as losing their status *as* laws.
Posted by: Patrick S. O'Donnell at March 16, 2008 09:50 AM
This post also points up the consequences of searching for resolutions to constitutional problems merely in the meanings of written texts. The example of social norms (the single-file line instead of the semi-circular scrum) is instructive, but we also have to remember that in every case, what is at issue is not merely whether one is bound by the text (or the judicial act of interpreting that text) but the paradoxical appeal to change the shared understanding of the text as it also relies on the force/legitimacy of the institution to guarantee that new understanding.
The interesting thing about the American case is that it has been able to do this so successfully for so long: the rights of the Constitution are seared into our collective political imagination even as disputes about their application continue time and again.
The strength of Fish's argument doesn't seem to be his decision to describe the Constitution as a treasure map instead of a Catholic Confirmation ritual (the entire structure of that argument/criticism replicates the "definitional argument" fallacy that Bruce wishes to avoid-- "The Constitution is X, not Y, and so therefore what follows from describing it as Y must be incorrect"), but in its identification of the Constitution as the provider of heuristic devices for negotiating contemporary political problems. This model of "heuristic devices" contrasts with a strict "social contract" model, the weaknesses of which Kevin and others have noted (I say X but intended X2; you hold me to X because I said it, and ask the state to enforce it in the face of any and all other interests).
And the point here is not that the Constitution is a set of heuristic devices instead of a contract, but that it is both. Any legal dispute relies on this hybrid status when it asks the judiciary to bring the force of the state to bear to resolve the problem, because every case arrives with contingent facts. One example of this would be the 1983 cases that allow for liability when private actors conspire with state actors to deprive citizens of rights, even though the State Action doctrine arguably prohibits that result. The answer to this controversy is not found merely in the text of the Constitution, nor in the notes and papers interpreting the words or the authors' meaning, but also in the facts of the case itself.
Contrary to some of its critics (and possibly Fish or those inspired by him), this position does not necessarily require that we abandon intention or meaning-seeking as a source of dispute resolution-- there are times where the words or agreements are what they are, and alternate interpretations are either highly unlikely, unwise social policy, or both. But it points to the need for judges, lawyers, and students of the law to remember that the contexts matter, and any interpretive shortcuts that admit no flexibility to deal with future contingent conflicts of core Constitutional values (apologies for the excessive alliteration) are unwise.
Posted by: Tim at March 16, 2008 11:06 AM
Tim,
If perhaps you've not familiar with it and may be interested, there's a nice argument against the idea of the Constitution as a "contract" in Russell Hardin's Liberalism, Constitutionalism, and Democracy (1999), especially pp. 82-140.
Posted by: Patrick S. O'Donnell at March 16, 2008 11:30 AM
erratum: "you're"
Posted by: Patrick S. O'Donnell at March 16, 2008 11:32 AM
Wow, great comments. I'll just respond to a couple of points:
Kevin, perhaps intuitions vary on this more than I thought. But I believe there is a widely engaged-in debate in which Person 1 says something, Person 2 objects, Person 1 claims that he or she intended a different meaning, and Person 2 claims that the sentence spoken has a different meaning than the one intended by the speaker. This is the point of the oft-quoted joke in Alice in Wonderland:
..."There's glory for you!""I don't know what you mean by 'glory'," Alice said.
Humpty Dumpty smiled contemptuously. "Of course you don't -- till I tell you. I meant 'there's a nice knock-down argument for you!'"
"But 'glory' doesn't mean 'a nice knock-down argument'," Alice objected.
"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master -- that's all."
If I understand Fish correctly, this isn't a joke; Humpty Dumpty is entirely correct. He can make "glory" mean whatever he wants. But I think most people would say that Alice has a reasonable objection that "glory" simply doesn't mean "a nice knock-down argument," despite clear knowledge that's what Humpty intends by it. The fact that a sentence must have an intentional speaker to mean anything does not mean that the sole source of that meaning is the speaker's intent.
Lori, I agree Berman's article is excellent on the intentionalist argument. In particular, he takes what I call the intentionalist "defintional" argument and breaks it down into premises, which he then attacks. I don't think Berman's attack works as well against "definitional" original public meaning originalism, though. What is needed there is an alternative to all original meanings, which a garden-variety counterexample just doesn't have, because most everyday sentences have short shelf lives.
Chris, we're in agreement on oath-takers, but I would extend the relevant boundary beyond those who formally swear to uphold the Constitution, to all those who are governed by it, and thus members of the community established by it. "We the People" is broader than just "We the Oath-Takers."
Tim, in response to your point that my argument "replicates [Fish's] 'definitional argument' fallacy": I didn't intend to claim that arguing from a definition is fallacious. If everyone agrees on the definition, it's perfectly fine to argue from it. All arguments have a foundation somewhere, and a definition can be as good a foundation as anything else. The problem for definitional arguments comes when the proposed definition is either contested or fails to completely occupy the relevant field. The latter is my point both against Fish and against New Originalists: I just don't think that Constitutional sentences are relevantly similar to the type of sentences they have in mind when they define interpretation.
Posted by: Bruce Boyden at March 17, 2008 03:01 AM
"[W]e're in agreement on oath-takers, but I would extend the relevant boundary beyond those who formally swear to uphold the Constitution, to all those who are governed by it, and thus members of the community established by it."
I don't think we can be in agreement regarding oath-takers, since I think that oath-takers are bound to take the Constitution on its own terms, and that once we unpack the constitutional indexicals, we see that the Constitution defines itself as a historically-situated text. That would mean that oath-takers should be textualist semi-originalists. But it wouldn't make sense for the broader community to be bound by a different Constitution than the one that sets the rules for the government.
I'm not opposed to the idea that the Constitution has some sort of proper authority over those who don't swear to support it, but I think the central case of its legitimate authority is the person who does consent explicitly. We should define the nature of the Constitution by looking first at the clear cases of its binding authority, not the more doubtful case of the general citizenry.
"'We the People' is broader than just 'We the Oath-Takers.'"
Actually, I don't think that today's oath-takers are part of "We the People" at all. One of the things I'll argue in my indexicals paper is that the Preambulatory We isn't intergenerational--it refers to the enactors of the Constitution, not the people today. Why? For one thing, the Preamble refers to "our posterity," which would not make sense if the Preambulatory We is already intergenerational. Second, the Preambulatory We ordain and establish the Constitution. But article VII says that the ratifications of the state conventions are sufficient for the establishment of the Constitution. Because the Preambulatory We the People are the Article VII ratifiers, they are confined to the founding.
Posted by: Chris at March 17, 2008 09:02 AM
Chris, I'm looking forward to reading your papers on this, which sound fascinating. But in the meantime, on the "We the People" language, I'll just raise a couple of concerns: To the extent we're arguing about what the original meaning of the preamble is, I think we're back at square one. That is, I think the argument that the preamble captures something significant about how the Constitution is to be read must depend on a prior argument about how the preamble is to be read. I misread you above to be claiming that something significant happens for interpretation during oath-taking, which might provide that prior step, but now I see you're claiming that something significant happens for legitimacy, not interpretation.
Second, I'm not sure the preamble gets you where you want to go. If every generation reaffirms the Constitution, then each succeeding generation is "We the People," concerned about its posterity. I don't see how this creates any problems for making sense of the preamble.
Posted by: Bruce Boyden at March 17, 2008 12:22 PM
That's right, I'm assuming that we can tell what the Preamble (and other words like "now" and "here" and especially "this Constitution") mean without adopting a particular theory of meaning. But I think the combination of "our posterity" and the Article VII rule on "establishment" are enough, on any theory of meaning, to suggest that the Preambulatory We is historically-confined. (Other indexicals, like the use of "now" in a way that obviously refers to the time of the founding, confirm this reading.)
Now, I don't think the historically-confined Preambulatory We means that people today, or the sum of all the generations of Americans together, don't form an important political community. So the group of people who agree with the Constitution today might justifiably be called "the People." It's OK to use that term that way. I'm just saying that, in the Preamble, the constitutional author is historically confined. That's important only because of the relationship between the Preamble and "this Constitution" which the Preamblulatory We ordain and establish; a historically-confined Preambulatory We fits with a historically-confined "this Constitution," while an intergenerational We the People fits with a Rubenfeldian or Straussian Constitution-as-collection-of-common-law-concepts constitutional ontology.
It would help to distinguish three views on what "We the People" in the preamble means. My view is that it is We the Ratifying People at the time of the Founding. Rubenfeld's view is that it is an intergenerational entity, including both the founding generation, who supply paradigm cases, and later generations who supply covering principles and other unforeseen additional cases. A third view, which Bruce sketched above, is that "We the People" includes all the people living under the Constitution at any particular time. So at the Founding it included certain people, in 1868 it included certain others--but not the Founders--and today it includes an entirely different set of people still.
Now, I agree with Bruce that the the each-generation-is-We-the-People theory might make sense of "our posterity." But it doesn't make sense of Article VII, because the people today don't establish the Constitution in state-by-state ratifying conventions. The bit about posterity is mainly useful in rebutting Rubenfeld's intergenerational-We-the-people theory. Again, the "posterity" point isn't the only thing I'm relying on; the other indexicals can help confirm the same conclusion.
Posted by: Chris at March 17, 2008 03:21 PM
I'm still not sure I see a problem. Article VII talks about sufficient conditions for the effectiveness of the Constitution. Those conditions were met in when it was ratified the ninth state. And that Constitution is still in effect today, as affirmed by "We the (current) People".
I think we may be talking about a variety of the Theseus's ship problem here. My intuition is, it still makes sense to refer to the ship as "Theseus's ship" even after all of the individual planks have been replaced.
Posted by: Bruce Boyden at March 17, 2008 03:49 PM
Hmm. I'll think about it. I was mainly thinking about Rubenfeld's views. Maybe I'll have to rely more on a consideration of first-person language in other constitutions & that sort of thing. Here's one thought. If "We the People" isn't a new entity with each generation, then it again seems strange to distinguish between "We the People" and "our posterity," just like it would be strange to distinguish between, say, the structural intgrity of the ship of Theseus and the structural integrity of the thing that exists after all the planks are replaced. If the ship of Theseus just is the thing that exists after all the planks are replaced, then it would only make sense to speak of the structural integreity of the ship of Theseus, simpliciter. Likewise, if the founding-era, Article-VII-ratifying We the People is the same entity as today's living-under-the-Constitution-in-2008 We the People, then the Preamble should just say "secure the blessings of Liberty to ourselves," simpliciter, not "secure the blessings of Liberty to ourselves and our posterity." It would be weird to talk about doing something for "myself and my future self," unless I were suggesting some sort of Parfitian distinction between the two. But as I say, I've got to think about this some more. Could be making too much of this. "Now" is the one that I think is the killer.
I'm certainly happy to have an excuse to talk about the ship of Theseus. The earlier, longer version of this compared the structure of the ship of Theseus with corporate culture that can survive the replacement of all of the particular corporate employees who work at a particular time. I took it out in part on the advice of a certain future resident of Milwaukee (though it'll show up in the sequel). Maybe if he writes some hot new narrative-style paper about law school faculty cultures, he'll use the analogy himself.
Posted by: Chris at March 17, 2008 05:11 PM
FWIW, I've put my "this Constitution" article on SSRN: http://ssrn.com/abstract=1227162
Posted by: Chris at August 22, 2008 03:28 PM
