Academic

Reply to Griffin, Part Six: Interpretive Pluralism

By Lawrence Solum

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

The argument of "Semantic Originalism" addresses three distinct topics: (1) the linguistic meaning (or semantic content) of the constitutional text, (2) the relationship of the text of the Constitution to the doctrines of constitutional law, and (3) the normative (or moral) force of constitutional law.  Perhaps the most fundamental claim made by "Semantic Originalism" is that these three levels of analysis need to be carefully separated in order to avoid conceptual confusion.

Griffin's sixth question concerns "interpretive pluralism," the view that there are multiple or plural methods of constitutional interpretation:

6. When he turns to normative theory, the fidelity thesis, Solum?s comments about interpretive pluralism (the theory I defend in ?Rebooting Originalism?) are hard to fathom. Interpretive pluralism was at least partly a consequence of early constitutional interpreters perceiving accurately that the constitution was a unique kind of law, one not reducible to other forms. There were genuine questions of what sort of interpretive principles to bring to bear, questions that have been illuminated by Caleb Nelson and others. Working through these questions was necessary before the Constitution could be implemented routinely in courts of law. In this way, a variety of methods of interpretation contributed to the Constitution?s status as a rule of law and thus to the stability of American law as a whole.

Once again, there is a lot going on in this post, in part because "interpretive pluralism" could make claims about any o three distinct topics (semantic, legal, and normative) identified above.  Here is Griffin's description of "Interpretive Pluralism" from his important article Rebooting Originalism:

Essentially, pluralistic theories described, explained, and justified contemporary modes of interpretation such as text, history, structure, and precedent by linking them to the Constitution and the multiple sources of law that existed when the Constitution was ratified and went into operation. First, pluralistic theories described accurately that the Supreme Court employs multiple methods of interpretation in deciding constitutional cases and does not observe a strict hierarchy of methods. Next, each method was linked to a source of law that preexisted the Constitution such as statutes and the common law. These sources of law provided the ground for the emergence of multiple legitimate methods of interpretation in the early republic.68 This also explained why these nonconstitutional sources of law exert a hold over the contemporary theoretical debate. Scholars today continue to ground their preferred method of constitutional interpretation by appealing to analogies based on sources of law, such as the common law, understood to be legitimate.69 Finally, pluralistic theories justified the use of multiple methods as the most practical way to implement the Constitution, that is, give it legal force in courts of law.70

When Griffin refers to "interpretive pluralism," what does he mean?  Is he referring to a positive theory that reconstructs or describes constitutional practice, or is he referring to a normative theory based on arguments of political morality?  Or is he offering an "interpretive theory" that "fits and justifies" constitutional practice?  Or a historical theory that explains how and why contemporary constitutional practice emerged?

I do not want to speak for Griffin or other interpretive pluralists, so my discussion will utilize the method of separation of cases--that is, I will consider the various possible variations of interpretive pluralism & then consider the interaction between each of these variations and semant originalism.

For simplicities sake, let's distinguish three different version of "interpretive pluralism":

Semantic interpretive pluralism would be the theory that the semantic content of the constitution can be gleaned by using a plurality of interpretive methods.

Positive constructive pluralism would be the theory that rules of constitutional law are be developed by using multiple modalities of constitutional construction.  This version of the theory is a theory of what legal practice actually does: it is a postive theory in that sense.

Normative pluralist constructivism would be the theory that the practice of constitutional construction should be guided by multiple methods. 

The next question we need to address is, "What are the methods or techniques that constitute 'interpretive pluralism'?"  Several possibilities come to mind:

Textualism--use of the constitutional text.

Intentionalism or purposivism--use of the underlying purposes or functions of the Constitution and/or the intentions of the framers or ratifiers.

Precedent--the use of prior judicial decisions and the doctrine of stare decisis.

Historical practice--the constitutional practices of the political branches.

Political realism--conscious response by the courts to the political reactions to the actions the courts might take.

Values & political morality--decision on the basis of the judge's own values or the judge's best efforts to discovery true principles of political morality.

Traditions and social norms--reference to the traditions and social norms of the community.

Deference and representation-reinforcement--conscious deference to decisions made by elected officials and bureaucrats, the shaping of legal doctrines so as to maximize the democratic responsiveness of the system.

This list is not intended to be exhaustive, but I hope it conveys a sense of the factors that a pluralist court might consider.  Any particular form of interpretive pluralism might choose some of these methods and reject others.  I do not mean to imply that pluralists are committed to an inclusive list--perhaps, some pluralists would limit constitutional practice to two or three of these methods.  Others might include all of these and many more.

We now can consider the relationship of various forms of interpretive pluralism to semantic originalism.

Semantic Interpretive Pluralism

Is "interpretive pluralism" a plausible theory of constitutional interpretation?  Recall that when I use the term "interpretation" I am using it in a stipulated sense.  Interpretation is the activity that aims to recover the linguistic meaning or semantic content of the constituitonal text.  Interpretation is distinguished from "construction"--the translation of the text into rules of constiutional law.

Semantic Originalism is itself a form of interpretive pluralism if we understand "interpretive pluralism" in just the right way.  How do we recover the linguistic meaning of the constitution?  For Semantic Originalism, the answer is that we attempt to discover the "clause meaning" of the constitutions provisions.  The clause meaning is the conventional semantic meaning of the words and phrases related by the rules of syntax at the time of constiuttional utterance as modified by (i) the publicly available context, (ii) the division of linguistic labor, (iii) constituitonal implicature, and (iv) constitutional stipulation.

Let's focus on the primary task, recovery of the "original public meaning" or the "conventional semantic meaning at the time of constituitonal utterance."  How does one do that?  We start with our prereflective understanding of the language--what does constitution seem to mean in ordinary contemporary English.  Then, we try to determine whether contemporary English mataches usage during the framing era.  Several techniques might help us to accomplish this goal.  Here are some:

1. Contemporary usage.  Examine evidence of ordinary usage such as newspapers and pamphlets during the period.

2.  Intratextualism.  Examine the words and phrases in each clause in relationship to the usage of the same words and phrases in other clauses.

3. Purpose.  Consider evidence of the purposes or intentions that were attributed to various provisions for the light that sheds on the conventional semantic meaning.  (This is not the same as finding the intention because the content of the intention is identical to the meaning.)   The records of the Philadelphia Convention, the Ratification Conventions, the Federalist Papers, and the Antifederalist Papers might all be used in application of this technique.

4. Historical practice and early judicial interpretation.  Examine the practices of the officials who implemented the constituiton and early decisions that interpreted the constitution for evidence of the original public meaning.

This list is not meant to be exahaustive.  Notice that each of these techniques is being employed for a particular purpose--to discover the conventional semantic meaning at the time of utterance.  This suggests that a certain priority should be placed on the first method--because it goes directly to the task at hand (discovery of the conventional semantic meaning at the time of constituitonal utterance).  The other methods may also help us to discover the original public meaning, but they have limitations.  In particular, we need to be very cautious about use of the debates over ratification, because these are contexts in which participants have motives to interpret or construe particular provisions so as to put the provisions in a favorable or unfavorable light.

In sum, if semantic interpretive pluralism stands for the proposition that a plurality of techniques can be used as components of the method for discovery of conventional semantic meaning at the time of consitutional utterance, then semantic originalism embraces and absorbs it.

But (and this is a big "but") semantic interpretive pluralism could also mean something quite different.  It might stand for the idea that the semantic content of the constituitonal text (as opposed to the legal content of constitutional law) can be changed or altered by application of the plurality of methods.  For example, a pluralist might argue that historical practice subsequent to ratification can change the linguistic meaning of a constitutional provision.  This version of semantic interpretive pluralism is inconsistent with semantic originalism, and it is also false as a theory of the linguistic meaning of the constituitonal text.  "Semantic Originalism" provides the reasons for this in connection with the argument for the fixation thesis, but the core insight is quite simple: the actual linguistic meaning of an utterance cannot be changed by subsequent events.  It is a historical fact, and absent time travel, historical facts cannot be changed by future events.

Postive Constructive Pluralism

Recall that positive constructive pluralism is the positive theory that rules of constitutional law are developed by using multiple modalities of constitutional construction.  It is a "positive theory" because it is a a theory of what constitutional practice actually does.  It is a theory of constitutional construction, because it is a theory of the way in which the semantic content of the constitutional text is translated into rules of constitutional law.

Of course, as a descriptive matter, no one doubts that courts actually do use a plurality of methods in constitutional construction.  Griffin notes this in "Rebooting Originalism":

Originalists have not come to grips with pluralistic theories as the chief alternative to their single-method approach. In particular, it would be hard to deny the superiority of pluralistic theories along the descriptive-explanatory dimension.

If that is all that is asserted by interpretive pluralists, then there is absolutely no disagreement between interpretive pluralism and New Originalists, in general, and Semantic Originalism, in particular.  For example, New Originalist believe that when the semantic content of a constituitonal provisions is vague, construction is required.  And in fact, courts use a variety of techniques--precedent, historical practice, purposes, values, and so forth--when they engage in constitutional construction.

Different New Originalists have different normative views about constituitional construction.  Barnett emphasizes constitutional legitimacy; Whittington emphasizes deference to politics; Balkin emphasizes the role of constitutional principles.  But these are normative theories of construction.  To my knowledge, none of these theorists argues that their preferred method is as a matter of fact the exclusive method that has been employed in our historical practice.

There is, however, an issue upon which Semantic Originalism may disagree with some versions of positive constructive pluralism.  Semantic Originalism affirms the modest version of the contribution thesis.  The contribution thesis claims that the semantic content of the Constitution contributes to the legal content of constitutional law.  The extreme version of that thesis is that the two are identical: every valid rule of constitutional law is identical to the meaning of some provision of the constitutional text.  The extreme version of the contribution thesis is implausible--in part because it is is obvious that precedent and historical practice play some role in shaping constituitonal law.  The modest version of the contribution thesis claims that with limited and special exceptions, the semantic content of the constitution does provide the legal content of valid rules of constitutional law.  This is the point where some proponents of positive constructive pluralism might disagree.

It might be argued that the Supreme Court has the power to render legally valid decisions in ordinary cases that directly contradict the semantic content of the Constitution.  This issue is take up in depth in "Semantic Originalism," and readers are urged to examine the arguments in Part V.C "The Contribution Thesis Revisited" available via this link.

Normaltive Pluralist Constructivism

This last point leads to the next form of interpretive pluralism.  Normative pluralist constructivism is the view that constitutional practice should employ a variety of methods in constitutional construction.  It is a normative theory, because it makes recommendations based upon considerations of political morality and does not limit itself to claims about what our legal practice actually is.

The most important point to make about normative pluralist contructivism is that it's most plausible versions are consistent with semantic originalism.  Semantic originalism does not offer a normative theory of constitutional construction--with one important exception.  Semantic originalism affirms the fidelity thesis and the moderate version of the contribution thesis: the conjunction of these two claims provides a defeasible justification for an outer limit on constitutional construction.  Constitutional constructions should not directly contravene the semantic content of the constitution except in special and limited circumstances.

But it is possible that some versions of normative constitutional pluralism may endorse the use of pluralist methods of constitutional construction to create rules of contitutional law that directly contradict the semantic content of the constitutional text.  "Semantic Originalism" addresses these arguments at several levels.  I won't recapitulate the arguments, but it is useful to distinguish between three different types of constructions that might conflict with the semantic content of the Constitution:

Opaque amendment constructions--Let use the phrase "amending construction" to refer to a rule of constitutional law that contrdicts the semantic content of the text, and the word "opaque" to refer to such constructions when the inconsistent is misrepresented on undisclosed.

Transparent amending constructions--Similarly, "transparent amending construction" would be a rule of constitutional law that is inconsistent with linguistic meaning of the text, but is represented as such.

Mending constructions--Finally, the category of a "mending construction" is reserved for cases where a transparent rule contrary to the text is necessary to prevent a tear in the constituitonal fabric.  For example, if there were a flaw in the procedures for selection of the President such that circumstances could occur in which following the constitutionally required procedures would result in a four-year gap in the presidency, a "mending construction" might revise the rules in order to eliminate the glitch and permit the continuation of constitutional government.  "Mending constructions" might function analagously to the cy-près doctrine in the law of trusts and wills.

All three of these construction types are problematic, because all of them involve the creation of constitutional rules that contradict the text of the Constitution.  But the three are not equivalent.  Opaque amending constructions are the most problematic.  An opaque amending construction seems likely to be unlawful--the fact that the amending construction requires deception suggests that it "would not fly" given conventional legal understanding of judicial power.  Moreover, the lack of transparency suggests that such constructions may be illegitimate.

The case for mending constructions is obviously stronger.  If a mending construction is truly necessary, the alternative is disruption in the constitutional order.  If normative constitutional pluralism limits itself to constructions that are consistent with the semantic content of the text and mending constructions, then it may well be consistent with semantic originalism.

With all this out of the way, I can now clarify the argument of "Semantic Originalism."  When "interpretive pluralism" was discussed in "Semantic Originalism," the main focus was on semantic interpretive pluralism in the form that maintains that it is proper to aim at something other than the original public meaning of the text.  To the extent that intepretive pluralists maintain that the semantic meaning of the constitutional text can be altered by applying a plurality of interpretive methods, their views are simply false.  In addition to this main point, "Semantic Originalism" argued against normative pluralist constructivism to the extent that it authorizes opaque or transparent amendment constructions: this argument relied on the idea that judicial power to amend the constitution is contrary to legal convention and therefore also contrary to fidelity to law--a principle of political morality.

Griffin's seventh question goes directly to the question whether courts have the power to amend the Constitution, and I will address that topic directly in the next post in this series.

Full post as published by Legal Theory Blog on May 04, 2008 (boomark / email).