Academic

Pettys on a Written Constitution

By Lawrence Solum

Todd E. Pettys (University of Iowa - College of Law) has posted The Myth of the Written Constitution (Notre Dame Law Review, Forthcoming) on SSRN.  Here is the abstract:

Many Americans have long subscribed to what this Article calls the myth of the written constitution - the claim that the nation's constitution consists entirely of those texts that the sovereign American people have formally ratified, and the claim that the will of the American people, as expressed in those ratified texts, determines the way in which properly behaving judges resolve constitutional disputes. Drawing on two different meanings of the term myth, this Article contends that neither of those claims is literally true, but that an attachment to those claims serves at least three crucial functions. Subscribing to the myth helps to ease the tension created by the American people's paradoxical beliefs that they are morally entitled to govern themselves and that human beings often cannot be trusted to behave in morally praiseworthy ways; it helps to ease the tension between Americans' commitment to self-rule and their attraction to judicial supremacy; and it helps to secure the strong sense of nationhood that so many Americans deeply desire. The Article suggests that embracing the myth of the written constitution for such instrumental purposes need not be seen as a shameful act of self-delusion, despite the fictive qualities of the myth's claims. So long as courts and scholars maintain the necessary conditions, the American people can responsibly embrace the myth as an act of "poetic faith."

And from the text:

Regardless of whether they emphasize the framers? original intentions or the ratified texts? original meanings, originalists typically share the conviction that the ratified texts? demands do not evolve over time.   Originalists insist that those texts? requirements remain static until the sovereign American people alter the texts using the procedures described in Article V of the 1787 document.   In the eyes of originalists, therefore, there are only two occasions when it is appropriate for the nation?s courts to change their constitutional bearings: (1) when, after a regrettable period of misdirection, the courts conclude that they have more accurately perceived the framers? intentions or the texts? original meanings, or (2) when the texts themselves have been formally amended.  Many of the most noteworthy and widely accepted changes in the courts? constitutional understandings, however, have not followed either of those scripts. One cannot reasonably argue that most of the great shifts in the courts? constitutional bearings have been provoked by a rediscovery of the framers? intentions or the ratified texts? original meanings.   Consider, for example, the vast expansion of federal regulatory power that occurred when the New Deal Court finally capitulated to the nationalistic ambitions of the federal government?s elected officials.   The 1787 text was intended and understood by the founding generation to be remarkably anti-nationalistic?a fact we often conceal by glorifying a few of the Marshall Court?s rulings, ignoring much of the nineteenth century, and pretending that the New Deal Court rediscovered the founding generation?s nationalistic vision and placed the country back on the path from which the Court had briefly and regrettably diverted it.   Far from returning to the founders? vision like a repentant prodigal child, the New Deal Court broke with the nation?s original constitutional understandings by permitting the federal government to assume regulatory powers that the founding generation scarcely could have fathomed.

A few observations here:

First, I do not know of any originalist who claims that the entire corpus of American constitutional doctrine does, in fact, conform to originalist theory.  That is, originalism is rarely offered as a "descriptive theory" of American constitutional practice (especially the practice of the Supreme Court).  Rather, most originalists conceive of originalism as offering a standard for evaluation of the legality or legitimacy of constitutional practice (e.g., Supreme Court decisions, legislation, executive practice, etc.).  It is seems quite peculiar to suggest that originalists should be embarrassed by the observation that the New Deal jurisprudence may not conform to the original meaning of the Constitution.

Second, this analysis of originalism seems to ignore one of the two most important developments in originalist theory--the distinction between interpretation and construction.  (See Legal Theory Lexicon 063: Interpretation and Construction)  (Pettys does cite Barnett and Whittington, the most important theorists elaborating the interpretation-construction distinction, but fails to discuss this aspect of their work.)  This distinction is crucial to understanding how originalists conceptualize the relationship between the written text of the Constitution and the constitutional jurisprudence of the Supreme Court.  The core of originalism (which is actually a family of related theories) is what I have called the "fixation thesis"--the linguistic meaning or semantic content of the constitution was fixed at the time of origin.   "Constitutional interpretation" is the activity of ascertaining the linguistic meaning of the constitutional text.  But many provisions of the constitution are "vague" (in the technical sense that they admit of borderline cases, see Legal Theory Lexicon 051: Vagueness and Ambiguity).  Once we have determined that the original linguistic meaning of a constitutional provision is vague, then interpretation must exit the stage (it has done all the work it can do), and "constitutional construction" makes its entrance.  "Construction" provides supplementary rules or procedure that permit that application of vague provisions to particular borderline cases.  The "New Originalism" or "Original Public Meaning Originalism" thus embraces the idea that the content of constitutional doctrine cannot be fully determined by the original meaning.  Because constitutional litigation tends to focus on precisely those issues that the the text underdetermines, much of the disputed terrain of constitutional doctrine falls into what I call "the construction zone."

In other words, it seems very doubtful that all or most sophisticated contemporary originalists embrace what Pettys calls "the myth of the written constitution."  Of course, they do not deny that there is a written constitution.  And they embrace the idea that the written constitution ought to constrain constitutional practice.  But it is simply false, I think, to argue that they make the further claim that the full content of constitutional doctrine either is or should be fully determined by linguistic meaning of the text as it was fixed at the time each provision was framed and ratified.  This aspect of originalist theory is comparatively new--Whittington's book Constitutional Construction: Divided Powers and Constitutional Meaning was published in 2001 and Barnett's Restoring the Lost Constitution: The Presumptions of Liberty was published in 2003.  Nonetheless, I should think that at this point, scholarly critics of originalism are fairly taken to task for failing to acknowledge to distinction if they purport to discuss the scholarly literature.

My take on this matters is found in Semantic Originalism.

Read Pettys.

Full post as published by Legal Theory Blog on December 12, 2008 (boomark / email).