Academic

Barber & Fleming vs. Fish and a Comment on Constitutional Theory & the Philosophy of Language

By Lawrence Solum

Stanley Fish recently posted Does Constitutional Theory Matter on his New York Times Think Again column.  Fish's column ranged over many issues, but one target was Constitutional Interpretation: The Basic Questions, by Sot Barber and Jim Fleming and recently featured on the Legal Theory Bookworm.  Barber and Fleming have responded to Fish on OUP Blog with a post entitled Constitutional Theory Does Matter:

Here is a taste from Fish:

Barber?s and Fleming?s intentionalism is only apparent because it is subordinated to ? plays second fiddle to ? the ?philosophical approach? they borrow from Dworkin. It is a question of which comes first, the philosophical considerations the constitutional interpreter might entertain and deploy or the intentions of the framers.

If it is the latter, then philosophical concepts are brought in only when it is thought that they may be helpful to the effort of specifying an intention. If it is the former, if it is philosophy front and center, then the fact of an author?s intention is pushed into the background as the interpreter strives to be true to a philosophical ideal.

This is a distinction Barber and Fleming fudge repeatedly when they say things like ?constitutional interpretation presupposes that interpreters are seeking the true meaning or the best interpretation of the Constitution.? ?Or? suggests that the two phrases on either side of it are equivalent. But seeking the true meaning of the Constitution is, as Barber and Fleming acknowledge, seeking the meaning the framers intended (even if it is general not and tied to their 18th century view of what the terms they set down mean).

Seeking the best interpretation of the Constitution, on the other hand, is seeking the interpretation that satisfies some extra-authorial standard, the standard of what someone ? but not the framers ? regards as morally and philosophically best. An interpreter who does that will no longer be engaged in the effort to determine what some agent or agents meant by these words. Instead he or she will have traded in that humble task for the more exalted task of giving moral guidance to the world.

And from Barber and Fleming's reply:

Our argument repeatedly stresses that a ?philosophic approach? to constitutional meaning should mean no more than a process conjoined with an attitude: giving and exchanging reasons in an honest attempt to reach the truth about the meaning of the law and whether a proposed application comports with what debate reveals about the best understanding of the Constitution?s explicit aims, like justice and the general welfare. We call this ?the philosophic approach? because, with Socrates as our model, we take the activity of philosophy to be the most exemplary form of thinking self-critically for oneself in a way that respects the evidence and the opinions of others.

Fish gives a radically different description of our approach to interpretation. He says we begin not with the words of the Constitution but with some extra-constitutional standard of morality, and then, with our ?philosophical ducks in a row,? we make the Constitution conform to what some philosophic authority holds is morally right. What makes this a radical departure from our thesis is our claim (to which we devote a subsection of chapter 10) that the ducks-in-a-row process Fish describes is no different in principle from the view of ?original intention? professed by jurists like Antonin Scalia, Robert Bork, and William Rehnquist. Both try to escape the burdens and responsibilities of seeking the true or best interpretation by fleeing to some kind of authority: for the former, the authority is the extra-constitutional doctrines of some favorite philosopher, and for the latter, the authority is the extra-constitutional intentions of the framers. Both approaches thus disregard the intentions evident on the surface of the Constitution as written ? the ?positive law,? if you prefer. A central aim of our book is to display the many fallacies of the Scalia-Bork-Rehnquist view of ?original intention.? If Fish?s description of our position were correct, our position would be equivalent to the one we condemn most, on both theoretical and moral grounds.

There is much to sort out here (more than I can accomplish on this occasion), so let me just make a few observations:

--First and foremost, let me recommend Barber and Fleming's book.  Constitutional Interpretation: The Basic Questions is a terrific book.  If you are interested in constitutional theory, Barber and Fleming should be on your reading list.

--Second and to many readers, perhaps surprising, Fish's column accurately reflects his current position on the theory of constitutional interpretation generally.  Many readers may assume that Fish's position continues to reflect the views that he expressed in Is There A Text In This Class? The Authority of Interpretive Communities, but in fact, Fish's current position is best understood as a version of "intentionalism," roughly the theory that the meaning of a text is the intention of its author.  Fish's name is strongly associated with the idea that texts mean whatever communities of readers think they mean, but he has explicitly recanted that position.

--Third, Fish's exchange with Barber and Fleming doesn't really get us to the heart of their disagreement.  Fish charges Barber and Fleming with conflating "true meaning" and "best interpetation."  Barber and Fleming complain that Fish has misinterpreted their position.  In my opinion, both Barber & Fleming and Fish have conducted the discussion at a level that is too shallow to illuminate the true nature of their disagreement.  (I am referring now only to their online exchange, and not to the full statements of their positions in other work.)  Their online discussion fixes on the Supreme Court and constitutional practice.  You can see this in Fleming and Barber's discussion of Rehnquist, Bork, and Scalia.  But Fish's conflation charge--that Fleming and Barber conflate "true meaning" and "best interpretation"--is not about constitutional politics.  Rather, Fish's conflation charge goes issues in the philosophy of language.

--Fourth, the deep disagreement between Fish, on the one hand, and Barber & Fleming, on the other is about theories of meaning.  Let's lay out their respective positions:

Fish adheres to intentionalism as a general theory of meaning--the meaning of an utterance or text is fixed by the intentions of the utterer or author. 

Barber and Fleming's theory of meaning is not quite as clear to me, and I believe that they actually do not fully agree (with each other) on the underlying issues in the philosophy of language.  Let me lay out two possible interpretations of their position:

Interpretation One: Concepts & Conceptions.  One interpretation of Barber and Fleming's position is based on the familiar distinction between "concepts and conceptions," familiar from the work of John Rawls and Ronald Dworkin.  Let's use the equal protection as an example.  One might argue that the "equal protection clause" refers to the general "concept" of equality.  That general concept is ambiguous--because they are many different possible "conceptions" or particular theories of equality.  Since the constitution employs the general concept, it is up to judges to pick that particular conception that is "best."  What do Fleming and Barber mean by best?  I'm not sure, but one interpretation is that they would agree with Ronald Dworkin's view which holds that they best conception of equality is the conception that figures in the theory that best "fits and justifies" the Constitution and its role in the whole of American law.

Interpretation Two: Moral Realism.  A second interpretation of Barber and Fleming's position may superficially seem similar to the first, but it is, in fact, radically different.  On the second interpretation, the equal protection clause is not ambiguous.  Instead it refers to "moral reality," that is, to the true and metaphysically real requirements of equality.  On the second interpretation, the job of judges is to "discover" what equality really is and then apply the requirements of equality to our circumstances.  On the second interpretation, we might see "equality" as a "moral kind," where moral kinds have real essences on the model of "natural kinds" like "gold" or "water."

Interpretation One and Two Are Not Equivalent.  The concept-conceptions interpretation of Barber and Fleming focuses on the conception of equality that best "fits and justifies" American law, but there is no guarantee that this conception would correspond with the requirements of moral reality.  On the concept/conceptions interpretation, the equal protection clause refers to an ambiguous "concept" of equality.  On the moral realism interpretation, the equal protection clause refers to the metaphysically real "moral kind" of equality, which has a fixed essence.

In other words, the disagreement between Fish and Barber & Fleming is about deep issues in the philosophy of language and perhaps in metaphysics.  Fish thinks "true meaning" is fixed by intentions, whereas Barber & Fleming (on my interpretation) think "true meaning" is fixed by something else--either the conception that best fits and justifies American law or by moral reality.

--Fifth, there is a serious problem with intentionalism (or "original intentions originalism") as a theory of constitutional meaning.  Meaning cannot not fixed by the intentions of utterers or authors in all cases.  When a text is produced by multiple authors with inconsistent intentions or when the author of text knows in advance that readers will lack access to information about the author's intentions, the conditions for what philosopher Paul Grice called "speakers meaning" are not satisfied.  Of course, those exactly the circumstances under which most legal texts, including the United States Constitution, are produced.  The meaning of the Constitution cannot be identified with "the intentions" of its author--because there were multiple authors with multiple and conflicing intentions.  The framers (authors) of the Constitution knew that its readers (citizens, officials, and judges) would not have access to their intentions (the records of the Convention were secret; the Constitution would be read in circumstances distant in time and space from the framing).

--Sixth, because the meaning of legal texts cannot be fixed by reader's knowledge of the author's intentions, such texts must rely on "conventional semantic meaning," the ordinary meaning of the words and phrases at the time they were drafted.  This is, of course, "original meaning originalism" or "original public meaning originalism."  The meaning of the Constitution is the ordinary meaning of the words and phrases at the time the relevant provision of the Constitution was adopted (1787-89 for the original constituion, and later periods for the various amendments).

--Seventh, there are deep problems with both interpretations of the Barber-Fleming theory of constitutional meaning.  The moral realist interpretation depends on a deeply controversial position in metaethics--that there are metaphysically real "moral kinds."  Even if there are such kinds, there is a further question whether the Constitution refers to them.  Even if you believe that "gold" is a natural kind, it does not follow that every use of the word "gold" refers to the natural kind defined by the atomic structure of gold.  Likewise, even if "equality" is a moral kind, it does not follow that the phrase "equal protection of the laws" refers to the moral kind.  Similar points can be made about the concept/conception distinction.

The point of these brief comments is not to "resolve" the debate over constitutional meaning--that's not possible in a blog post.  Rather, my hope is to illuminate the nature of the deep disagreements between Fish and Barber & Fleming.

Read Fish's op/ed and Barber & Fleming's post on OUP Blog!

Full post as published by Legal Theory Blog on February 01, 2008 (boomark / email).