Academic

Reply to Griffin, Part Seven: The Relationship of the Constituitonal Tex and Constitutional Law

By Lawrence Solum

This is the seventh post in a series (Part One, Part Two Part Three Part Four Part Five Part Six Part Seven) that replies to Stephen Griffin's thoughtful and illuminating comments about Semantic Originalism on Balkinization.

One of the central claims of "Semantic Originalism" was the moderate version of the contribution thesis.  The contribution thesis claims that the semantic content of the constitution contributes to the content of constitutional law.  The moderate version of this claim is that absent special circumstances, the semantic content of the text is part of (but not all of) constitutional law.

Griffin's seventh question was:

7. Solum wants judicial opinions to be transparent and sincere. Here are some crucial points: ?Supreme Court Justices have a special obligation to identify the relevant provisions of the Constitution when they write their opinions? (mentioned above). ?If the opinion departs from original meaning, it should explain why and offer a justification.? ?This means that if the opinion calls for an amending construction of the Constitution (a construction that alters the original public meaning), the opinion should identify the amendment construction, state the inconsistency, and then offer a justification for the departure from original meaning.? (p. 121) I take it as clear that none of these points are supported by current Supreme Court practice. So much the worse for the Court, originalists might say. But because Solum thinks these points follow uncontroversially from fidelity to law (which everyone on some level accepts) should he not be put to inquiry why they are not followed? Perhaps the rule of law is more complex than Solum allows, especially when the Constitution is the rule. .

Some clarification is required here.  It is true that as a normative matter, I do think judicial opinions should be transparent and sincere.  That claim is normative, and it should not be confused with a quite different claim, that judicial opinions always are transparent and sincere.  Of course, I don't think that.  Frankly, my guess is most seroius students of constitutional law believe (as I do) that judges in constitutional cases have engaged in insincere and deceptive opinion writing in a nontrivial number of cases.

I take it that Griffin knows that I know this, and he is correct that I believe that my normative claim follows from two of the four central claims advanced by "Semantic Originalism."  The first of these is the moderate version of the contribution thesis, stated in the second paragraph of this post.  The second central cliam is the fidelity thesis--the claim that citizens, officials, and judges owe fidelity to constitutional law.

So what is Griffin getting ?  Why does he think it is significant that current Supreme Court practice sometimes departs from the original meaning in opinions that make this opaque and not transparent?  His point might be normative: that is, Griffin might be arguing that the Supreme Court should engage in deceptive departures from requirements of constitutional law.   Griffin makes his point with a rhetorical question and a "perhaps"--the last two sentences of the quoted paragraph.  This mode of expression makes it difficult for me to be sure, but I suspect that Griffin is not arguing for deceptive and unlawful behavior by the Supreme Court.  If I am wrong, I am sure that Griffin will correct my misunderstanding.   I have tried very hard to avoid burden-shifting arguments in this series of posts, but on this occasion, I would respectfully request that Griffin provide some normative justification if he does advocate deceptive and unlawful decisions by the Supreme Court.

But as I said, I doubt this is what Griffin means.  My guess is that his real disagreement is not with the fidelity thesis but is instead with the moderate version of the contribution thesis.  That is, my guess is that Griffin believes that the conventions of legal practice do authorize the Supreme Court to transparent amending constructions of the Constitution.  On this assumption, the remainder of this post will go to that question.

This is a topic that is addressed in depth in "Semantic Originalism".  Let me quote the relevant passages:

Is semantic originalism consistent with current constitutional practice with respect to those Constitutional provisions that are either vague or ambiguous? To answer this question, we need an account of consistency. As is usually the case in constitutional theory, the requirements of the theory are two dimensional. For a given constitutional practice, for example an action by the Senate or a Supreme Court decision to be fully consistent with the semantic content of the Constitution, the outcome must actually be consistent with the semantic content and reason for the action must be fairly traceable to the legal contribution of the content.

This point about tracing is important and it points two different ways in which the semantic content could shape outcomes. The first and most obvious way is that the agent engaging in a given constitutional practice could engage in deliberation that incorporates the original meaning. But there is a second, less obvious, and more pervasive way that semantic content shapes meaning: constitutional issues are frequently resolved at one point in time, T1 on the basis of deliberation that incorporates the semantic content of the text as a reason for action. This resolution then may become settled practice, such that a constitutional actor at a subsequent point in time, T2, follows the settle practice without deliberating at all or by deliberating about the practice itself without explicit consideration of the semantic content of the text. These settled practices may themselves be embodied in subordinate legal rules?statues, rules of procedure, etc., or they may simply be customs. A decision that is made on the basis of a settled practice that connects in the right way to the original meaning is fairly traceable to the semantic content, and such a decision is fully consistent with the moderate version of the contribution thesis.

In the cases in which the agent engaged in constitutional practice deliberates, the requirement is that the deliberation incorporates the original meaning. Deliberation is rarely fully explicit. In unusual cases, the constitutional agent might actually deliberate on the basis of an explicit theory of original meaning. But explicit articulation of a theory is not required for full consistency. The theory offered here suggests that competent language users have an intuitive grasp of the ideas of conventional semantic meaning, context, implicature, and the division of linguistic labor. They act on the basis of these ideas when they read and write ordinary nonlegal texts. Given this intuitive grasp, the normal case of full consistency will involve unconscious adherence to the fixation thesis and the clause-meaning thesis. Conscious resort to these theories should occur only when things are not going in the usual way and the semantic content has been problematized. In the legal context, this can occur because an adversary system is likely to result in attempts by lawyers to convince judges to ignore or contradict meanings that are unfavorable to the interests of the lawyer?s client. All that is required for full consistency (in the case of deliberation, as opposed to the case of historical practice discussed in the prior paragraph) is that the agent engaged in constitutional practice incorporate the semantic content explicitly or tacitly, and then reach a decision that comports with the semantic content.

Full consistency can be contrasted with partial consistency and total inconsistency. Partial consistency can occur in a variety of ways. One form of partial inconsistency occurs when an agent engaged in constitutional practice engages in deliberation aims at fidelity to the original meaning of the text, but the agent misunderstands the text. Misunderstanding can occur for a variety of reasons. The text may be ambiguous, and the agent may assume without adequate deliberation that one sense provides the semantic content, when consideration of the publicly available context of constitutional utterance would have lead the agent to reach the opposite conclusion. The agent may simply be mistaken about the meaning of a term. For language to work, most agents must get most meanings most of the time, but this is fully consistent with the fact that almost all speakers will have false beliefs about the meanings of some words. Some of the language in the constitution is archaic, and the agent could simply make an erroneous guess about the original meaning. This sort of partial inconsistency does not undermine the moderate version of the contribution thesis. Legal rules can be misunderstood, but that fact doesn?t entail that they aren?t legal rules. Another form of partial inconsistency occurs when an agent engaged in constitutional practice acts in a way that is consistent with the semantic content of the text, but does so on the basis of reasons that display indifference or hostility to original meaning. This form of inconsistency is more troubling from the point of view of the moderate contribution thesis: indifference or hostility to the semantic content is an indication that the agent has not internalized the requirements of the contribution, at least in the particular case, but the extent of the trouble will depend on context.

For example, given the complex power-conferring rules that constitute define the authority of the Supreme Court, the lower courts, and officials, many agents are legally obligated to respect decisions of the Supreme Court on constitutional question: such rules include the institution of judicial review and doctrine of vertical stare decisis. For this reason, focus by these actors on Supreme Court decisions (as opposed to the semantic content of the constitutional text) may not be evidence that the subordinate agent is truly indifferent to the semantic content of the text. Such agents might, if asked about their seeming indifference, reply: ?I?m legally obligated by the Supreme Court precedent, but if the Supreme Court disregarded the semantic content of the text when it set the precedent, then that precedent is incorrect as a matter of law.? On the other hand, the agent might say, ?I?m legally obligated by the Supreme Court precedent, and the Supreme Court has fully legal authority to disregard the semantic content of the Constitution and create rules of constitutional law that directly contravene that content. There is no such thing as a legal mistake when it comes to Supreme Court constitutional decisions.? Such fully explicit articulations are rare, and explicit disavowals of the moderate version of the contribution thesis are very rare indeed.

Finally, there is the case of full inconsistency?paradigmatically a decision of the Supreme Court that explicitly acknowledges that the outcome is inconsistent with semantic content of the Constitution in a context where that inconsistency is not required by some constitutionally sanctioned power-conferring rule (such as textual commitment of an issue to a coordinate branch of government).

Remember that semantic originalism underdetermines outcomes, so there will be a variety of cases in which a range of outcomes is consistent with the semantic content of the Constitution. In such cases, the outcome depends on construction and not interpretation. Constructions of vague provisions that operate within the zone of underdetermination are not examples of full inconsistency?even if the opinions of the justices are confused about the line between interpretation and construction, and even if the reasoning of the opinion mistakenly identifies semantic content, by identifying original meaning with framer?s intent or original expected applications.

If constitutional practice is pervasively characterized by full inconsistency, then the case for the moderate version of the contribution thesis would face a very substantial obstacle. If a pattern of fully inconsistent decisions triggered persistent criticism from outside the Supreme Court, such that the best characterization was something like, ?The legal culture agrees that this pattern of Supreme Court decisions (that willfully disregard the original meaning to reach outcomes) is lawless and the decisions are legally incorrect, the moderate version of the contribution thesis might be saved.

This abstract discussion can be made more concrete by schematic discussion of some examples. My aim is not to convince by offering detailed exegesis. Instead, the idea is to illustrate the view by simply stating its possible and plausible implications:

? The Supreme Court applied the first amendment freedom of the press as a limit on judicial power in New York Times v. Sullivan, but the text says ?Congress shall make no law . . .? This is an example of partial inconsistency. The original meaning relevant to this case is located in the privileges or immunities clause of the 14th Amendment and this case would be located in the zone of underdeterminacy. The partial inconsistency stems from the Court?s incorporation doctrine which is inconsistent with the text of the due process clause of the 14th, but which had been entrenched by precedent.

? The Supreme Court applied equal protection clause doctrine to the District of Columbia in Bolling v. Sharpe via the due process clause of the Fifth Amendment. This is an example of partial inconsistency. The original meaning that could have justified the outcome in Bolling v. Sharpe results from the implication in the Ninth Amendment that fundamental natural rights or their legally created substitutes are retained by the people. The content of such rights is vague or ambiguous, so this case requires constitutional construction.

? The Supreme Court upheld the application of the Controlled Substances Act to intrastate, home-grown, marijuana in Gonzales v. Raich, despite the limitation of Congress?s power to commerce among the several states. This may not even be an example of partial inconsistency, because the court?s foundational rationale relies on the necessary and proper clause and a theory of deference to the legislative power of Congress, involving abstract and general provisions, the vagueness of which creates a substantial zone of underdetermination.

The point of these highly schematized and incompletely explicated examples is to illustrate the paucity of evidence that points to clear cut cases of full inconsistency. When this fact is combined with the very substantial evidence of large zones of full consistency, the pattern of evidence suggests strong support for the moderate version of the contribution thesis.

This same point can be made more plainly. ?Originalism? may have been hugely controversial, but much of the controversy was motivated by crude versions of originalism in the academy or nonacademic use and misuse of ?originalism? in ideological and political struggles. But the idea that the meaning (semantic content) of the constitution contributes in an important way to the content of constitutional law?that?s not controversial among judges, officials, and lawyers. It takes a fancy theory or politically motivated resistance to get an argument going that seriously challenges the contribution thesis.

Constitutional practice is based on the premise that the semantic content of the constitution constrains constitutional law. When courts ignore the original meaning or get it wrong, they make legal mistakes. The Supreme Court?s decisions may be final, but hardly anyone believes in what we might call the Doctrine of Supreme Inerrancy. But even those who believe in the inerrancy of the United States Reports, are likely to recoil at the logical implication of their positions?that decisions of the United States Supreme Court cannot be overruled by constitutional amendment. Does anyone really think the Supreme Court would have been legally correct to declare the Eleventh Amendment null and void on the ground that it was directly contrary to a Supreme Court decision? Whatever else the Eleventh Amendment did, it surely overturned the Supreme Court?s decision in Chisholm v. Georgia. Were the Supreme Court to assert a power to ignore constitutional amendments, this assertion would be incorrect as a matter of law.

I'm sure that Griffin has a response to these arguments--although given his already generous attention to "Semantic Originalism" he certainly has no obligation to write or blog on this topic.  Let me just add one more point.  In my last post, I observed the distinction between opaque and transparent amending constructions.  I have also been very clear that the moderate version of the contribution thesis does not deny that the rules of constitutional law go beyond the semantic content of the text: supplementary rules, that go beyond but do not contradict the text, are obviously required.  If Griffin believes that the moderate version of the contribution thesis is false, and that transparent amending constructions are allowed by the conventions of American law, then he should be able to identify cases in which the Supreme Court clearly states that this is so.  What are those cases?

Griffin's eighth final question addresses the New Deal and Living Constitutionalism.  Those topics will be the subjet of the next post in this series.

Full post as published by Legal Theory Blog on May 05, 2008 (boomark / email).