Legal Commentary

My last post ended with a question: If not the actual social practice of interpretation in general or constitutional interpretation in particular, what could the interpretation thesis possibly be attempting to describe? (The thesis, recall, is that interpretation is effectively synonymous with the search for original meaning.) The best answer is that the thesis is attempting to describe the actual practice of constitutional interpretation but not to describe it comprehensively. Rather, it is attempting to isolate and describe two analytically distinct aspects of that practice. The search for original meaning is not the whole of constitutional interpretation as that activity is actually understood by its practitioners, but it is undeniably an aspect. It is also undeniably distinct from other aspects of interpretive practice, such as the search for the morally best meaning present-day Americans would recognize as a plausible understanding of the written text. Perhaps this is all the interpretation thesis stands for?that originalism is conceptually distinguishable (and for the sake of analytic precision, should be distinguished) from other aspects of interpretive practice (many of which originalists lump under the heading of construction).

This modest understanding of the thesis does not sound much like the sweeping claim that originalism is the only way to interpret the Constitution as binding law. According to Stanley Fish, however, that sweeping claim is merely a kind of shorthand. Like other proponents of the interpretation thesis, Fish frequently writes things to the effect that the search for original meaning is ?not an approach to interpretation?one possible method in competition with other methods?it is interpretation.? But in making such statements, Fish insists that he does not intend to make any claim about the broad class of actual social practices that go by the name of interpretation. Rather, his aim is simply to clarify that, if you are trying to ?figure out what somebody meant by something, asking what somebody else might have meant by it??or any of the other questions posed by nonoriginalist interpreters??is not going to get you there.?

The problem with this modest construction is not that it is wrong but that it makes the interpretation thesis virtually pointless. No one needs Fish?s clarification. Nonoriginalists are not confused or deluded seekers after original meaning. Nor, for the most part, do they deny that original meaning exists as a factual matter, though it may be practically difficult or impossible to recover. It is simply not the meaning nonoriginalists are after. Rather, they are after another meaning altogether?the one that best preserves the text?s conventionalist function or the one most consistent with long-established precedents, for example. They might claim that this meaning is the true or the best meaning of the text, but that is just another way of saying it is the meaning that judges or other officials ought to follow as a normative matter. It is certainly not a claim?of the sort Fish imagines?that the best way to discover original meaning is by searching for something else.

Even if confusion along these lines were a real issue, the thesis would seem more likely to exacerbate than to dispel it. After all, we already have a term for the practice of searching for and submitting to original meaning. Originalism fills that role quite serviceably. Certainly it is a more natural choice than interpretation, which as it is actually used and understood, carries a variety of meanings inconsistent with originalism. Indeed, it is difficult to imagine a better recipe for conceptual confusion than for originalists to insist on using interpretation as a synonym for their own preferred approach.