Unfaithful Interpretation

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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12 Responses

  1. g says:

    Have you read Lawrence Lessig, Fidelity in Translation, 71 TEXAS L. REV. 1165 (1993)?

  2. Gerard Magliocca says:

    Well, but he claims that his approach is being faithful to the underlying principle involved (at least that’s my best recollection of what he said).

  3. WPB says:

    I think you’ll find that almost everybody who writes in interpretive theory (at least legal interpretive theory, which tends to be more narrow-minded than interpretation in other disciplines) takes “faithfulness” as part of a premise about what it is to “interpret” a document. I happen to think that’s correct, but if you could convincingly argue that it isn’t, you’d have a major contribution to (legal) interpretive theory.

  4. TJ says:

    I don’t think the idea, generally speaking, is new. Bolling v. Sharpe (and, more commonly, Brown v. Board) are wielded against every interpretative theory except living constitutionalism and its close cousin Balkin originalism, the latter being so malleable as to give judges discretion to do whatever they want. As Orin Kerr observed recently on Volokh, the difficulty for any theory lies in being able to constantly produce socially acceptable results in an ever-changing social environment, without the theory being infinitely malleable.

  5. TJ says:

    Or, to put it another way, you are right that nobody comes out and says “my interpretative theory is inconsistent with the source, but look at all the great results it produces.” But living constitutionalists spend most of their time pointing to all the great results their theory produces (and whacking other theories for being unable to faithfully produce such results). They also assert that it is being faithful to the source — the “living” constitution.

    The reason that your argument is largely a reflection of the old debate is that an infinitely malleable source cannot be unfaithfully applied. And a “living” constitution is the very definition of an infinitely malleable source. Thus, instead of arguing for the virtue of faithlessness, proponents of living constitutionalism simply turn all good results into the definition of faithful.

  6. Bruce Boyden says:

    I’m not sure we’re on the same page but this post of mine from a couple of years ago seems relevant: http://www.concurringopinions.com/archives/2008/03/the_constitutio_2.html

  7. “A better characterization is that interpretation is about justifying a result that everybody wants even though it not in the source.”

    If “everybody” wanted the result, you’d scarcely have to raise a finger to justify it. Who’d be questioning the result?

    I think ‘interpretation’ is actually more about denying one’s opponents, often quite numerous, the moral certainty that you’re just making things up. More about pretext than reason. After all, how can a procedure which relies on somebody already agreeing which you about what policy is desirable actually persuade anyone who starts out disagreeing?

    For my part, I refuse to dignify living constitutionalism with the status of an interpretive technique. Any genuine approach to interpretation must run the risk of finding that a text means something you don’t like, and living constitutionalism is specifically dedicated to denying that the Constitution can mean things it’s practitioners are opposed to. It isn’t a form of interpretation, it’s an alternative to interpretation.

  8. Gerard Magliocca says:

    Well, I don’t think a living constitutionalist would concede that it’s nothing but an expression of policy preferences, but I can’t speak for that school of thought.

  9. TJ says:

    In that sense, I cannot speak for living constitutionlists either. But, first, nobody alleges that it is nothing but an expression of policy preferences. At most, the argument is that living constitutionalism imposes no constraint against such abuse of judicial office.

    Second, of course no living constitutionalist will concede that their theory is nothing but an expression of policy preferences, just as no atheist will concede that God might exist. Proponents of a theory do not concede what is manifestly a fatal weakness, since anybody making such a concession will by that act disavow the theory. The problem is rather that living constitutionalists have not, to my knowledge, proved that their theory does not have such a weakness.

  10. “At most, the argument is that living constitutionalism imposes no constraint against such abuse of judicial office.”

    I think the argument goes a bit further than that: It’s not just that living constitutionalism imposes no such constraint, but that imposing no such constraint is the point of living constitutionalism. If it did impose any such constraints, it wouldn’t serve it’s purpose.

    Essentially, living constitutionalism is the political class’s response to a constitution they can’t afford to repudiate, but aren’t willing to be constrained by. So along comes a school of constitutional ‘interpretation’ which allows the circle to be squared: They obey the “Constitution”, but it magically means whatever they want it to mean.

    The problem for living constitutionalism is that, as a practical matter, it doesn’t work at squaring that circle, because the only people who find it persuasive are the people who didn’t need persuading. And so, the crisis of legitimacy continues to grow.

  11. Bruce Boyden says:

    I think it is correct to say that X is nothing but an expression of policy preferences, where X = whatever interpretive theory you don’t subscribe to.

  12. But Bruce, that can scarcely be the case, as most actual interpretive techniques will find that the Constitution means things their users don’t think are good policy.