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Academic

: Legal Theory Blog

Coan on Writtenness and Originalism with Some Comments

By Lawrence Solum

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Introduction

Andrew Coan has posted The Irrelevance of Writtenness in Constitutional Interpretation on SSRN. This post has to purposes: first, I want to recommend Coan?s piece to the readers of Legal Theory Blog, and second, I want to engage some of the substance of Coan?s article, with particular reference to the constitutional theory that I am developing in Semantic Originalism and in other recent work (here and here). Here is Coan?s abstract:

Arguments about the nature of judicial review and appropriate methods of judicial interpretation based on the "writtenness" of the Constitution date back at least to Marbury v. Madison. In recent years, originalists ranging from Jack Balkin to Keith Whittington to Randy Barnett have argued in varying fashion that an originalist interpretive approach follows logically from "our commitment to a written constitution." This is a mistake. Nothing - or virtually nothing - follows from the writtenness of the American Constitution. One can be committed to a written constitution in any number of ways for any number of reasons, the vast majority of which do not entail an originalist interpretive approach. For example, one can be committed to the constitutional text as focal point for legal coordination in the manner of the rules of the road; as a platform for common law reasoning; as a locus of normative discourse in a flourishing constitutional culture; or as one of many legitimate ingredients in a pluralistic practice of constitutional adjudication. The originalist argument to the contrary is one instance of a broader rhetorical phenomenon that the philosopher C. L. Stevenson helpfully labeled "persuasive definition." It is an attempt to resolve a normative debate through redefinition of a normatively charged term - in this case, interpretation. There is broad agreement that judges should interpret, rather than make, the law. Thus, by redefining interpretation to include only originalist interpretation, originalists appear to answer the normative question of how judges should decide constitutional cases. But it is only an appearance. Their argument sheds no light on the actual normative question at issue, which is how we should want judges to decide constitutional cases. Our "commitment to written constitutionalism" may mean that we are unlikely to accept an answer to that question that does not accord some role to the constitutional text. But all plausible theories - not just originalism - do that. The writtenness of the Constitution can therefore provide no ground for choosing originalism over other plausible contenders. Before I engage substantively with Coan?s claims, let me state clearly how much I admire this piece. The argument for originalism from writtenness is undertheorized, undercriticized (until now), and underdefended (still). This essay moves the ball forward in important ways. Moreover, there is much that Coan says with which I agree. Like Coan, I believe that from the fact that a constitution is written, it does not follow that constitutional practice should be constrained by original meaning of the text. Like Coan, I believe that neither the concept of ?interpretation? not the structure of the practices that are called ?interpretation? entail originalist constitutional theory. Indeed, one of the primary purposes of this post is to demonstrate that acceptance of the main arguments that Coan advances in The Irrelevance of Writtenness in Constitutional Interpretation is almost entirely consistent with acceptance of the theory advanced in Semantic Originalism. So The Irrelevance of Writtenness in Constitutional Interpretation is highly recommended, and, if I may add an imperative, ?Download it while its hot!? But (and frequent readers of LTB may have guessed that a ?but? was coming), I do disagree with many of the claims made by Coan, and I believe that some of his characterizations of originalism (the theory) and originalists (the theorists) might fairly be described as uncharitable and to some extend inaccurate. In the remained of this post, I will refer to Coan?s article as Irrelevance. My comments will cover two main topics: (1) Coan?s argument that originalists commit a fallacy of persuasive definition when (and I would add if) they argue that ?interpretaton? must be ?originalist," and (2) Coan?s claim that the fact that the United States Constitution is written is irrelevant with respect to the claim that originalism is the correct theory for interpreting the Constitution.

The Interpretation-Construction Distinction and the Persuasive Definition Fallacy

One of the most interesting arguments in Irrelevance is the charge that some originalist theorists have committed the fallacy of persuasive definition?equating ?interpretation? with ?originalism.? Coan introduces this argument in the context of his statement of an objection to originalist claims that the fact of the writtenness of the United States Constitution can serve as a premise in an argument for originalism. Here is his statement of the objection:

One can be committed to a written constitution in any number of ways for any number of reasons, the vast majority of which do not entail an originalist interpretive approach. For example, one can be committed to the constitutional text as a focal point for legal coordination in the manner of the rules of the road; as a flexible framework for common law elaboration; as a locus of normative discourse in a flourishing constitutional culture; or as one of many legitimate ingredients in a pluralist practice of constitutional adjudication.? Coan argues that contemporary originalists commit the persuasive definition fallacy, when they offer the following reply to the objection:

This widely invoked argument is one instance of a broader rhetorical phenomenon that the philosopher C.L. Stevenson helpfully labeled ?persuasive definition.?13 That is to say, it is an attempt to resolve a normative debate through tendentious redefinition of a normatively charged term?in this case, two terms: interpretation and binding law. There is broad agreement that judges should interpret, rather than make, the law. Thus, by defining interpretation as synonymous with originalist interpretation, originalists appear to answer the normative question of how judges should decide constitutional cases.

Is this a fair criticism of originalist theorists? Footnote 11 identifies the ?contemporary originalists? who are supposed to have made the claim that ?Constitutional interpretation . . . implies . . . a search for the actual meaning of the written text, which is to say its original meaning.? The citation is introduced with the ?See, e.g.,? signal, which (for readers unfamiliar with legal citation practices) means that the author is claiming that the cited works directly support the proposition asserted in text. I am among the authors who are identified as having made the argument that commits the fallacy. The footnote cites Semantic Originalism at pages 133-34. I have carefully reviewed these pages, both by reading them several times and by electronically searching for the terms ?interpretation? and ?construction.? So far as I can tell, nothing on these pages contains a definition of the term ?interpretation,? an analysis of the concept of ?interpretation,? or an account of the practice of ?interpretation? as a functional kind. The subsection of Semantic Originalism?that appears on pages 133-134 does not contain the word ?interpretation?.

There are, however, two passages in Semantic Originalism that do discuss the interpretation-construction distinction and are particularly relevant to the question whether Semantic Originalism commits a fallacy of persuasive definition. In particular, the following passage, which can be found on page 68:

Constitutional Interpretation: The activity of constitutional interpretation has as its object the recognition of the semantic content of the constitutional text.

Constitutional Construction: The activity of constitutional interpretation has as its object the supplementation of the semantic context of the constitutional text based on the context of constitutional utterance.

And similar points are made in the following passage which appears on page 81 of Semantic Originalism:

Semantic Originalism

Can these passages fairly be characterized as committing the persuasive definition fallacy? It is hard to see how such a characterization is consistent with the text. No claim is made that the concept of interpretation entails originalism. No claim is made that ?interpretation? refers to a functional kind with an essential structure that includes originalism. Instead, the first passage is explicit?these are stipulated definitions and the phrases ?constitutional interpretation? and ?constitutional construction? could be used differently. The second passage makes it clear that we could use the phrase ?constitutional interpretation? to embrace both ?interpretation? and ?construction? in the senses that those terms have in the stipulated definition.

I made similar points in my remarks at the session on the interpretation-construction distinction that was the program of the Constitutional Law Section of the Association of American Law School?s Annual Meeting in New Orleans in January 2010. On that occasion, I remarked:

The distinction [between interpretation and construction] is real and important, but the ?vocabulary? is not. The distinction between interpretation and construction is real, because there is a real conceptual difference between determining the linguistic meaning and crafting legal doctrines. If we try to do without the distinction, our constitutional arguments and theories will become confused. Theories of constitutional construction can only be justified by normative arguments, but accounts of linguistic meaning can only deploy linguistic facts. If you must these together, the result is confusion. But the distinction could be described in different vocabulary?for example, you might use the phrase ?linguistic interpretation? and ?constructive interpretation? or distinguish between ?textual theories? and ?doctrinal theories? or something else. There is a reason to use the vocabulary of interpretation and construction?that terminology has been used in American common-law for almost two-hundred years. In short, I believe that the attribution of a version of the persuasive-definition fallacy to Semantic Originalism is entirely unwarranted.

Having said this, I want to make it clear that I agree with Coan that any attempt to argue that phrase ?constitutional interpretation? can only be used to refer to interpretation is the sense specified by the interpretation-construction distinction would be misguided: it is clear that the word ?interpretation? has a broad sense that encompasses both ?interpretation? and ?construction? in the narrower senses those words are used by theorists and courts that embrace the interpretation-construction distinction.

And my agreement with Coan extends to a further point. Even assuming that we are using ?interpretation? to refer to the discovery or determination of linguistic meaning or semantic content, it is not built into the concept of linguistic meaning that the linguistic meaning of the Constitution is the original meaning. But that point is a very narrow one. Not all truths are conceptual truths. Semantic Originalism argues (at great length) that, as a matter of fact, the relevant linguistic meaning of a given provision of the Constitution is fixed at the time that provision is framed and ratified: I call this claim ?the fixation thesis? and I believe that this thesis is one of the focal points around which the family of originalist theories of constitutional interpretation is organized. The fixation thesis cannot be deduced from an analysis of the concept of interpretation, but it can be established by arguments.

Coan does not contest the fixation thesis in Irrelevance: instead, he argues the truth of the fixation thesis does not, by itself, entail that some version of originalist constitutional theory is correct. Of course, I (mostly) agree with that point. One must be careful here. I believe that there are, in fact, contemporary originalists who take the whole content of originalism to be more or less identical to the fixation thesis?such originalsits make no further claims. But most contemporary originalists also affirm a second claim?that the original meaning of the Constitution has some kind of binding or constraining force. In Semantic Originalism I describe the most general version of this second claim as ?the contribution thesis??the claim that the linguistic meaning of the constitutional text should contribute substantially to the content of constitutional doctrine. Characteristically, originalists claim that doctrine should be constrained by the original meaning of the text, but most originalists believe that this constraining force can be overridden in some circumstance (e.g., on the basis of settled precedent or historical practice that has generated settled expectations and could not be reversed without incurring extraordinary costs). The family of originalist theories includes a variety of positions on the precise form of the contribution thesis, and for that reason I state the thesis in an inclusive form that encompasses many or most of the positions that are self-identified as originalist.

Coan believes that the debate over originalism is essentially a debate over the contribution thesis and that sophisticated nonoriginalists do not base their opposition to originalism by denying the fixation thesis. Cohen is simply mistaken about this. Once again, it is important to be careful: because many contemporary constitutional theorists do not distinguish between linguistic meaning and legal effect (e.g., they do not acknowledge the interpretation-construction distinction), it is sometimes difficult to discern whether their opposition to originalism is based on denial of the fixation thesis or the contribution thesis. (In other words, some nonoriginalists may not distinguish semantic content from legal content.) But if Coan is unaware of the existence of a substantial number of nonoriginalists who deny the fixation thesis, he needs to get out more. I have discussed the central idea of Semantic Originalism with dozens of contemporary nonoriginalists and workshopped it more than a dozen times. Nonoriginalists object to its central claims in at least two distinct ways. Some nonoriginalists concede the contribution thesis including the constraint version of the thesis: these nonoriginalists sometimes even say that no sophisticated nonoriginalists are arguing that the Supreme Court should have the power to override the linguistic meaning of the constitution when it is clear (nonambiguous and nonvague). This first group of nonoriginalists argue that the linguistic meaning can change over time, and hence they deny the fixation thesis. Other nonoriginalists concede the fixation thesis (although this concession is usually made arguendo). This second group of nonoriginalists argues, as does Coan, that the linguistic meaning of the Constitution is only one factor in constitutional interpretation and that it can be overridden on the basis of other considerations, including normative considerations.

My discussion of the persuasive definition fallacy has focused on my own work?which Coan identifies as making the argument which he believes commits the fallacy. In the case of my work, I believe that any assertion that I have committed the persuasive-definition fallacy is completely unsubstantiated and entirely inaccurate. I have not undertaken a similar analysis of the work of others. I have not undertaken a similar analysis of others to whom Coan cites, much less ?contemporary originalists? which is a much larger group. Hard-hitting rhetoric has a place in legal scholarship, but so does careful textual analysis and the principle of charity. Charges that one?s opponents have committed obvious logical fallacies are serious ones. In this regard, there is plenty of blame to go around, and some of it belongs at my door and at the door of other contemporary originalists. One might hope that both originalists and nonoriginalists would take special care when charging their opponents with having made egregious logical mistakes.

A Quick Digression: As some readers of Legal Theory Blog know, my understanding of the interpretation-construction distinction has evolved since the draft of Semantic Originalism quoted above was written: I now think that the best definition of construction centers on the idea of ?legal effect,? and I no longer formulate the distinction using the definition from Semantic Originalism that is quoted above.

The Relevance of Writtenness

The main point of Irrelevance is Coan?s critique of the argument from writtenness. This is a real and substantial contribution to constitutional theory, and I agree with much of the substance of his argument. However, I do not agree with his bottom line?that claim that writtenness is actually irrelevant to the case for originalism, and I will try to show why this claim is mistaken.

Here is Coan?s lucid summary of his basic argumentative strategy:

The originalist argument from writtenness takes various forms. In fact, it may be more profitably understood not as a single cohesive argument but as a family of related arguments, united by their common reliance on the written character of the U.S. Constitution. That family has three analytically distinct, though frequently conflated, branches, which it is the goal of this Part to describe and disambiguate. The first, on close examination, turns out to be entirely dependent on other controversial normative justifications for originalism, such as popular sovereignty and the practical need to con- strain the power of judges and other government officials. If those justifications are persuasive, this group of arguments from writtenness is persuasive, too. But the converse is equally true; these arguments therefore add little to the normative debate. The second branch relies on the writtenness of the Constitution as implicit evidence of the framers? and ratifiers?s commitment to originalism. But, of course, that commitment is normatively significant only if one is already convinced that the original meaning or intent of the Constitution matters. Only the third branch, which argues that originalism follows from the essential nature of writtenness, could possibly provide an independent reason for contemporary judges to adopt an originalist interpretive approach. I agree with Coan that the important questions are raised by what he calls the third branch, but I do not believe that his characterization of the content of third branch is accurate (or in the alternative, I think he has ignored what we might call the ?fourth branch?).

Here is the way that Coan introduces his discussion of the third branch:

We are bound [to respect the original meaning of the text] because we today--right here, right now?profess our commitment to a written constitution, and original meaning interpretation follows inexorably from that commitment. We can easily jettison that original meaning by disclaiming our commitment to a written constitution, but this is a choice both courts and scholars have been generally unwilling to make.53

The claim is somewhat mysterious. At first blush, it seems like just another bare assertion?and a peculiarly bare one at that. After all, many nonoriginalists believe themselves committed to a written constitution. At this point, Coan ends his explication of Barnett?s arguments and turns to positions developed by other nonoriginalists. I believe that his characterization of Barnett?s position is inaccurate and misleading. The reader might assume that Barnett?s own statement of his argument is an egregious ipse dixit, but that is not actually the case. The following restatement of Barnett?s argument is adapted from Semantic Originalism:

Why the original meaning? Here is Barnett?s argument:

With a constitution, as with a contract, we look to the meaning established at the time of formation and for the same reason: If either a constitution or a contract is reduced to writing and executed, where it speaks it establishes or ?locks in? a rule of law from that moment forward. Adopting any meaning contrary to the original meaning would be to contradict or change the meaning of the text and thereby to undermine the value of writtenness itself. Writtenness ceases to perform its function if meaning can be changed in the absence of an equally written modification or amendment.

It is apparent, I think, that Coan?s characterization of Barnett?s argument is misleading. The argument is not that writtenness logically entails originalism. It is true that Barnett uses the phrase ?follows inexorably,? but in context that phrase expressed Barnett?s belief that the conclusion of his argument follows from its premises. The key premises are (1) that the writtenness of the Constitution has a functional role to play, which Barnett calls the ?lock in? function, and (2) that the ability of courts (or other constitutional actors) to change or contradict the original meaning would undermine that function. Barnett?s argument from these premises is not an ipse dixit and it does not rely on some mysterious notion that originalism is built into writtenness. Of course, Coan has things to day about the argument that writtenness is related to constraint. He makes those arguments in his discussion what he calls the ?first branch?. Here is a key passage:

Even if a written constitution, interpreted according to originalist methods, is an essential prerequisite for the existence of fixed constitutional constraints, it remains to be shown that fixed constitutional constraints are normatively preferable to the available alternatives. Here, the argument from writtenness runs into all the objections commonly advanced against the standard constraint-based defenses of originalism: original meaning is frequently ambiguous, limiting its power to constrain judges and other officials, even if those officials are acting in good faith and free of subconscious bias?both, of course, generous assumptions. In fact, the history invoked in originalist opinions may give an insidious veneer of objectivity and passivity to judicial decisions that are in reality the product of political choices.29 More fundamentally, original meaning is hardly the only available constraint on official power. Judicial precedent,30 political process theories,31 or the Holmesian puke test32 might serve equally well, especially in light of the many institutional and political constraints that operate independently of any theory of constitutional interpretation.33 Many things could be said about this critique of the constraint argument, which I believe fails to establish its conclusion, but for the limited purpose of this blog post, I want to focus on one crucial point. None of Coan?s criticism here sever the connection between writtenness and originalism that Barnett?s argument aimed to establish. Barnett?s claim was that if writtenness is to perform the constraint or lock-in function, then the original meaning must be respected. The claim that originalism is one necessary condition for lock-in does not entail the further claims that originalism is a sufficient condition or that there are no other necessary conditions. The fact that the lock-in function might fail for other reasons does not deny Barnett's claim. Nor does the claim that lock-in is not necessary for constraint deny Barnett?s argued-for link between writtenness and originalism. This means that Coan?s failure to engage Barnett?s actual arguments entails that Coan has failed to establish that writtenness is irrelevant to the case for originalism. Coan's claim of irrelevance is a very strong conclusion--and in the case of Barnett's argument Coan's arguments fail to support his conclusion.

One more comment about writtenness and originalism: When Barnett says ?[a]dopting any meaning contrary to the original meaning would be to contradict or change the meaning of the text and thereby to undermine the value of the writtenness itself? he alternates between semantic and normative claims. One the one hand, ?change the meaning of the text? seems to assume that ?the meaning of the text? just is its semantic content?a semantic claim. On the other hand, phrases like ?[a]dopting any meaning? and ?value of writtenness? suggest that we make a normatively guided choice about what the legal effects that judges give to the constitutional text?a normative claim. Semantic Originalism sorts out the precise claim being made. The view advanced in Semantic Originalism was that writtenness was not essential to fixation of linguistic meaning: the linguistic meaning of a particular oral communication is fixed by linguistic facts at the moment of utterance. Writtenness may be relevant to the contribution thesis: the fact that the Constitution was written and ratified in written form may be relevant to the claim that its semantic content does and should contribute substantially to the content of constitutional doctrine, but that argument will need to be fleshed out on another occasion.

Conclusion

As I said at the start, Irrelevance makes an important contribution to constitutional theory. It is by far the most sustained and thoughtful analysis of the arguments for originalism from writtenness. That conclusion is not undermined by the comments made in this post.

Read Coan!

Full post as published by Legal Theory Blog on February 19, 2010 (boomark / email).