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Tuesday, June 28, 2005

And Speaking of Leiter and Originalism

In my post the other day on Kelo, I made parenthetical reference to some points raised by Prof. Leiter about originalism here. I'd like to treat them a bit more fully and fairly here. Prof. Leiter professes some befuddlement that concern for original meaning is "dominant" in the legal world today (gosh, I hadn't noticed that myself, to be honest). But his befuddlement is rather befuddling to me. He puts his critique thus:

Why is what the framers thought even relevant? They left us a text, written with words that have meaning, sometimes contestable, sometimes clear. It would take a principled explanation as to why we are bound by anything more than that text and its words. But originalism is the pathology of our current constitutional culture, so deeply embedded that the quasi-liberals and those on the left genuflect before it.

My befuddlement is this: I would have thought it obvious that if one were bound by some prior person's text that the boundaries of one's boundedness should bear some necessary relationship to the meaning the text had at its creation. I would think the burden is on the anti-textualists, anti-originalists to explain why we should be bound by "words" but not by meanings. Leiter wants it the other way round: he'll happily (why?) grant that we might agree to be bound by the written document but he won't admit that that has gotten us very far, since we need a separate agreement to figure out what the markings on the page mean.

I thought perhaps I hadn't recently enough boned up on the philosophy of language, and that my fusty notions of the relationship of the rule of law to written laws were hopelessly outdated. So I consulted a friend of mine who teaches philosophy and has published recently and to some acclaim on the topic of the philosophy of language. He had this to say:

Difficult to know what to make of such. Without meanings, there are no such things as words. There are such things as burps, sighs, guffaws, and such. But sound lacking meaning is just sound signifying nothing. So I find it difficult to affirm his thesis when we reflect upon it for a moment: it is important that we keep the markings on the page of written laws but not the meanings. What does that mean? "markings on the page of written laws." How can we have written laws that consist merely are markings on a page? O.k. Maybe "it is important that we stick to the markings on the pages of things that used to be written documents enunciating laws." I can understand that thesis. But I cannot imagine what legal theory would affirm the importance of keeping to markings on a page.

I think that gets things about right. And it reminds me why I'm happy that we've written laws, and why I'm sad when professors and judges pretend that somehow we need deep accounts of why we write things down. Judging is not easy, and it is not mechanical--we need human judges, not scantron machines, deciding cases. But we shouldn't pretend that the difficulty of judging follows from something more recondite than the ordinary difficulty of bring even the clearest of principles to complex cases; in particular we need not pretend that it follows from some trendy observations about the hopeless incapacity of language to convey meaning, an incapacity that can only be cured by clever professors and liberal judges who will free us from a puerile attachment to what the words somebody bothered to write down might have meant when they were written.

Two other points, in fairness to Prof. Leiter. First, he links to a paper by Andrei Marmor which he claims furthers his argument. The problem is that Marmor's paper is all about the difficulty of figuring out "framer's intentions" which is not what most textualists/originalists purport to be interested in. We purport to be interested in the meanings of written words--it's why they were written. That's not always easy, and even when we have a clear meaning it can be hard to apply it. But that's not because meaning itself is somehow illusory or intractably impossible to fix. If that were so, Profs. Marmor and Leiter would probably not be so optimistic as to write as many things down as they both do!

Secondly, Prof. Leiter attempts to attend to this distinction in an update toward the end of his posting. But while he posits that one can sever "constitutionalism" (it's not clear how one should treat unwritten constitutions, such as the British have, in this analysis) from "originalism," he never explains why one would do so. He then repeats his demand for a "principled" case for being bound by the original meaning. The principle is inherent, though, in writing laws down in the first place--it is the principle that the law (not any given human being, such as a judge or a chancellor or a prince or a Guardian) is the rule. Originalism is all about the rule of law. And it is simply not intelligible to speak of the law ruling when (a) the law is written but (b) the meaning of what was written bears no necessary relationship to its future application. One need not have naive optimism, again, about the ease of interpretation to be committed to the simple notion that in attending to a written text one should attend to what the meanings of the words were when the text was written, in order to understand the thing. And the burden should be on Leiter to explain WHY one would have any commitment to a written Constitution but NOT a commitment to fixed "meanings."


Anonymous BL said...

Constitutionalism is the view that we should be bound by the meaning of the words in a foundational text of some kind. Originalism is the view that we should be bound by the original meaning of those words. The question is why originalism is the correct approach to the meaning of the words in the text. Originalism is plainly not necessary for the words to have a meaning: witness Canadian practice, which is officially anti-originalist with respect to interpretation of the meaning of the Charter. "Congress shall make no law respecting an establishment of religion" has a meaning quite apart from what Akhil Amar has taught us about the original concerns animating the provision. The question is why the original concerns ought to be authoritative.

9:48 AM  

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