Brian Leiter's Legal Philosophy Blog

A Puzzle About Heller

Yesterday, the U.S. Supreme Court held that the Second Amendment to the U.S. Constitution protects the right of indviduals to own weapons (such as rifles and pistols) for self-defense.  Larry Solum (Illinois) offers a fine and helpful overview of the opinion here.  Larry is a fan of Justice Scalia's brand of "public meaning" originalism--which we've discussed before--and so usefully focusses on the interpretive framework Justice Scalia employs in the majority opinion.  It had previously been thought by many courts and commentators that the Amendment--A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed   --read naturally and literally protects the rights of citizen militias to hold weapons, but, although not as plain, it isn't implausible to read it as really protecting an individual right, and certainly not when one lays as much emphasis on 'original' meaning and parsing delicate phrases as Justice Scalia does.  (On the question of "original meaning," the comments of Mark Tushnet [Harvard] are also apt, though.)

But there remains a real puzzle here, which probably tells us more than originalists would like about their interpretive method (which, as one distinguished commentator has suggested, is "bunk").  For after informing us that,

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation,

and then going through the detailed analysis of the pieces of the clause (well-summarized by Solum) to reach the conclusion that,

we find that they guarantee the individual right to possess and carry weapons in case of confrontation,

Justice Scalia suddenly informs us that:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Now how is this out-of-whole-cloth set of limitations on the right to be squared with the interpretive principle that "words and phrases were used in their normal and ordinary as distinguihsed from technical meaning" and that "normal meaning...include[s] idiomatic meaning, but...excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation"?  Quite obviously, there is no reference to the felons or mentally ill in the text of the Amendment, and while those of the founding generation had the notion of felons, they did not have our notion of mental illness, which did not make its debut until the 19th-century.  The same can be said, one suspects, about "sensitive places."  (Indeed, it would hardly be surprising that plenty of folks in the "founding generation" did, indeed, carry their guns to school!) 

So how are any of these limitations to be squared with the apparently 'scholarly' and paintstaking analysis of the clause and the guiding interpretive principle announced at the start?  It is not at all obvious.  Perhaps the thought is that the framers, if they had thought about schools, and how they would evolve, or if they were familiar, as we are, with the nature of mental illness, then of course they would have understood that the individual right of self-defense does not extend to the mentally ill or to those in schools.  But the moment we go that route we then open the door to also asking, "Well, what if they were also familiar with modern urban area afflicted by poverty and gun violence, wouldn't they have also entertained a limitation on the right in the same way?"  In which case, what work is the public meaning originalism really doing?

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UPDATE:  Larry Solum (Illinois) addresses the puzzle here.

How Philosophically-Minded Legal Ethics Looks to a Lawyer Friendly to Philosophy

This review of a collection by David Luban (Georgetown) by my colleague Charles Silver is interesting.

Waldron on the Prohibition of Hate Speech

Jeremy Waldron (NYU) has a quite interesting piece about freedom of speech in the current New York Review of (Each Other's) Books.  (We've remarked previously on the general decline of the NY Review; one of the few bright spots lately have been Waldron's essays--one early piece of uncritical sycophancy excluded--which are refreshingly non-parochial and intelligent).  Unless you subscribe to the electronic edition, however, you'll have to get a hard copy of the May 29 issue to read the whole thing.  One of his most interesting discussions concerns laws prohibiting hate speech, which are common in other parts of the liberal West, but not in the U.S., whose more "libertarian" regime poses an obstacle to laws that would outlaw incitements to racial hatred and the like.   Here is Waldron (he is reviewing a book by Anthony Lewis):

Lewis's settled position, I think, is that we do better to swallow hard and tolerate "the thought that we hate" than open ourselves to the dangers of state regulation.  I am not convinced.  The case is certainly not clear on either side, and Lewis acknowledges that.  But it is worth remembering a couple of final points.

First, the issue is not thought that we hate, as though defenders of hate speech laws want to get inside people's minds.  The issue is publication and the harm done to individuals and groups through the disfiguring of our social environment by visible, public, and semi-permanent announcements to the effect that in the opinion of one group in the community, perhaps the majority, members of another group are not worthy of equal citizenship....

Secondly, the issue is not just our learning to tolerate thought that we hate....The harm that expressions of racial hatred do is harm in the first instance to the groups who are denounced or bestialized in pamphlets, billboards, talk radio, and blogs.  It is not harm--if I can put it bluntly--to the white liberals who find the racist invective distasteful....The question is about the direct targets of the abuse.  Can their lives be led, can their children be brought up, can their hopes be maintained and their worst fears dispelled, in a social environment polluted by these materials?  Those are the concerns that need to be answered when we defend the use of the First Amendment to strike down laws prohibiting the publication of racial hatred.

This is well-stated, and rarely engaged with seriously in the American constitutional literature with which I'm familiar.  (It is never engaged with seriously in the libertarian "popular" literature:  one need only spend a bit of time perusing the Volokh Conspiracy blog for a good example of how lacking in basic imaginative empathy for those very different from themselves some academic libertarians are.)

On the other hand, there is a pertinent theme in the U.S. literature--usually associated with Fred Schauer who gave it a powerful articulation in his important 1983 book on the philosophical foundations of free speech (though it appears also in Mill a century before)--that deserves notice here:  namely, what Schauer called the argument from "governmental incompetence," namely, the worry that government is unlikely to discharge the task of prohibiting genuinely harmful speech responsibly.  Waldron acknowledges a version of this concern:

The worry here is that a government equipped with hate speech codes would become a menace to free thought generally and that all sorts of vigorous dissenters from whatever social consensus the government was supporting would be, as Lewis puts it, 'hunted, humiliated, punished for their words and beliefs.'

But as Waldron points out, there are two kinds of dangers here, not just one:

Surely public hysteria is a danger to be recognized on both sides of this debate--both when it manifests itself in repressive laws and when it manifests itself in the venomous denunciation of some vulnerable ethnic or religious group in times of anger or panic....Why should we think that there needs to be protection only against the first sort of hysteria and never against the second?

The worry about governmental incompetence, though, is a worry that government won't, in fact, provide protection "against the second" because governmental power is too readily co-opted for nefarious ends.  Certainly this familiar paranoid streak in libertarian thought is, if unchallenged, decisive, even allowing that Waldron has well-described the harm done by hate speech.  Should it, then, be challenged?

Waldron is from New Zealand, and was educated both there and in the U.K., where he also taught for a period of time.  His perspective is suitably cosmopolitan, and so he is no doubt familiar with the relative success of regimes regulating hate speech in cultures outside the American.  But a central question here is to what extent the broader cultural context is decisive in determining whether attempts to regulate hate speech will be successful or pernicious.  We have dealt with the issue before, in earlier postings about free speech in Canada (the latter with particular reference to the paranoid libertarian mindset).  As I wrote then:

Canada is, culturally, part of the the post-WWII European consensus based on the Nazi experience--namely, that naked bigotry, religiously motivated or otherwise, is a danger to humanity. Despite this, the quality of public dialogue in Canada and in Europe is much higher than in the United States: there is a greater diversity of views well-represented in the major media and in the political sphere. The explanation for this is plainly not the law--the law in these countries is in some ways, superficially at least, more restrictive of speech--but rather the social and cultural ethos and environment.

What works in Canada or Germany might not work so well in the plutocratic United States, where public power has, in so many domains, been surbordinated to private interests.  In responding, on the earlier occasion, to a representative paranoid libertarian who intoned that,

Albert Jay Nock once wrote, 'whatever power you give the State to do things for you carries with it the equivalent power to do things to you.' What continues to separate Americans from Canadians and Europeans is our general unwillingness to give the State the power to do things for us at the risk of it doing things to us.

I replied that,

What separates American from Canadians and Europeans is that the Americans have been conned, on a massive scale, in to being unable to identify or distinguish (1) between kinds of state power (e.g., the power to tax, to provide healthcare, to wage war, to run the secret police, etc.), (2) the risks they actually involve, (3) what the actual benefits of the different kinds of state power are, (4) what the risks are from private power unchecked by the state, and (5) how all those risks should be balanced against all those benefits. What distinguishes the Canadians and Europeans, in short, is that most of them would laugh out loud when served up childish bromides like Nock's.

But that being said, perhaps Nock's warning is apt in the American context?  What Waldron does not consider in his essay is that when a political and public culture is as morally corrupt, indeed bankrupt, as the American, the safest tact may be precisely the libertarian one. 

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Tamanaha on "the Bogus Tale about the Legal Formalists"

Brian Tamanaha (St. John's/Institute for Advanced Study) has posted a revised version of this provocative paper which he gave here in Austin several weeks ago.  (I am going to work off the version of the paper he gave here, since I have simply not had time to read the posted version in its entirety--though perusing the revised and posted versions, I think the points raised here still stand.  I have, in any case, alerted Brian to the post, and invited him to correct me if changes in the new version vitiate any of the points, below).

I am skeptical that Tamanaha has established the strong form of his thesis in this paper, to wit, that

Jurists in the formalist age held views of law and judging as realistic as we do today.  Judges and theorists did not widely think of judging as a mechanical or deductive process.  The legal realists were not pioneers of realism about judging.  Just about everything the realists said about judging was said decades earlier by individuals who have been identified as important formalist thinkers, as well as by many others in legal circles, including a number of accomplished judges.  The US legal culture has swallowed whole a largely fictional tale about views of judging during the so-called 'formalist age.' (5)

Tamanaha makes some telling points against particular claims by Grant Gilmore and Jerome Frank, among others, who purported to establish the existence of a formalist age.  I certainly do not want to come to their defense against Tamanaha's expose of their careless scholarship.  But even granting his reasonable criticisms of those who overstated their case, it seems clear to me that Tamanaha overreaches his own evidence, and thus also overstates his conclusions, in a variety of ways:

1. Tamanaha's evidence for his thesis consists of jurists and scholars saying "realist-sounding" things prior to the 1920s.  (I say "realist-sounding" because what is involved in being a realist on Tamanaha's view is a bit ambiguous:  we'll return to that, below.)  No one, of course, should think that American Legal Realism arose ex nihilo in the 1920s, so it should hardly be surprising that there were jurists and scholars saying "realist-sounding" things prior to the 1920s:  of course, Legal Realism had a pre-history!  More interesting is that subset of Tamanaha's evidence regarding jurists and scholars saying "realist-sounding" things in the late 19th-century, the purported heyday of "formalism".  (Limiting the evidence that way does, however, exclude a great deal, but certainly not all, of the evidence Tamanaha cites--he is, in general, far too impressed with someone saying something "realist-sounding" in the 19-teens, only a handful of years before the emergence of Legal Realism as an intellectual movement!) 

2. Yet even the import of late 19th-century quotation evidence is impossible to interpret absent two additional pieces of information which are, alas, absent from Tamanaha's paper:  First, are these quotations representative of views in the late 19th-century?  Second, even if representative, were they more or less common than similar sentiments in the 1920s and 1930s? 

We are interested in the question:  was there a "formalist age," i.e., an era in which something called "formalism" captured a widely shared view or ethos?  As Tamanaha indicated during his workshop here, his claim is that "most "jurists and lawyers during the purported "formalist era" did not embrace formalism.  Adducing quotes of jurists and lawyers who did not embrace formalism, however, quite obviously does not establish that thesis.  Are these quotes representative?  Were there jurists and lawyers making formalist claims at the same time?  What were the relative proportions of each?  Certainly--this would be hard to deny--the overwhelming majority of judicial opinions (then as now) were written in a formalistic style, i.e., as though there were a pre-ordained answer required by law which the court merely discovers.  We need to know whether the quotes that Tamanaha collects really capture the Zeitgeist. Tamanaha often points to the importance of the journal where a particular quote appears, or to the fact that a jurist or scholar in question is sometimes called, by the Gilmores and Franks of the world, a "formalist," even though (as Tamanaha shows) he says "realist-sounding" things.  But this is not really enough.  We need to know how many eminent jurists and scholars were saying "formalist-sounding" things at the same time as those he quotes were saying "realist-sounding" things.  Tamanaha may have the evidence.  It is not in this paper.

But let us suppose--in the best credible scenario for Tamanaha--that a significant minority or even a bare majority of scholars and jurists in the late 19th-century were saying "realist-sounding" things, the ultimate question is how that compares to the 1920s and 1930s?  We might still reasonably call the late 19th-century the "formalist age" if it turns out that far more leading scholars and jurists said "realist-sounding" things in the 1920s and 1930s than in the 1870s and 1880s.  Once again, Tamanaha's paper is entirely silent on this question which, as far as I can see, is crucial to establishing the strong form of his thesis.  (Stefan Vogenauer, the Professor of Comparative Law at Oxford, who was visiting at UT Austin this Spring, made a version of this second point in the workshop, so I hereby credit him for this observation!)

3.  Tamanaha plays a bit fast-and-loose with what counts as saying something "realistic," and this, I think, is quite central to the argument of the paper as it stands.   Throughout the paper--perhaps most clearly in Part II, but not only there--evidence of "realism" in the purported formalist age is supposed to consist in the fact that jurists and scholars recognized the role of judges in "making law" in a common law system. 

This seems rather thin evidence, though.  One might have thought the "official" distinction between common law and civil law jurisdictions was precisely that, in the former, judges "make law," and that the only people who deny that are a fringe group of "historical" or "natural law" jurists who think the common law is just the unfolding of reason, truth, or God's will!  When Tamanaha cites (21) a scholar in 1907 rejecting the idea that the common law is "the perfection of reason," he is hardly citing someone at the vanguard of Legal Realism!  If the best evidence for the "Realism" of the so-called "formalist-age" is that most jurists and scholars did not hold fantastic views of the common law, Tamanaha's argument would be weak indeed.  (Not all of Tamanaha's evidence is this bad, to be sure--but I was quite startled to see him invoking as evidence of "realism" that jurists and scholars held the ordinary view of the common law.)

4.  Tamanaha gives us no sense of what was distinctive about the arguments and claims of the Legal Realists, which makes it rather too easy for him to describe earlier views as examples of "the Realism of the Formalist age".  For example, Realists (as I have reconstructed them:  cf. my Naturalizing Jurisprudence) argued that:  (1) legal reasoning is indeterminate in cases that reach the stage of appellate review because of the existence of equally legitimate but conflicting canons of interpretation that can be applied to precedents and statutory materials; (2) in deciding cases, judges are responsive to 'situation-types'--recurring factual patterns that elicit a predictable normative response from most jurists, a response that is not, however, predictable based on existing paper rules and doctrines; and (3) in the commercial law context especially, judges look to the "normal" practices in the existing commercial culture in deciding what is the right outcome.  Tamanaha adduces no evidence that I saw that these actual theses of the Realists enjoyed any currency in the late 19th-century.

5.  The strong version of Tamanaha's thesis--if it were true--would also render mysterious the strong reaction to Legal Realism in the 1930s and 1940s, and continuing to the present day.  After all, if it were true that there was no "formalist" age and that Legal Realism just continued earlier lines of thinking, then why did Roscoe Pound, John Dickinson, and Lon Fuller, among others, react so strongly to Realism? 

Indeed, on this very blog, we have just recently seen Professor Robert Stevens of University College London contesting the truth and plausibility of Legal Realism--even in Tamanaha's extraordinarily vague sense of "a skeptical take on judging" (p. 7)--and defending a kind of "formalist" view of the law.  Surely it would be incredible to suppose that this "formalist" view of the law, and skepticism about "realism," emerged only in British legal academia in recent years?  Ronald Dworkin clearly holds the view that Frank attributes to the formalists (pp. 14-15), namely, that "the law, ready-made, pre-exists the judicial decision," yet, again, it would be startling to learn that, until Dworkin, no one held this kind of view of law.  One suspects that Tamanaha's history is highly, and misleadingly, selective, and that the Stevens's and Dworkin's of the 19th-century may have vanished from this historical rendering.

6.  A final point:  early on, Tamanaha cites (p. 3) a 1999 Columbia Law Review article of mine charactizing formalism as "the descriptive theory of adjudication according to which (1) the law is rationally determinate, and (2) judging is mechanical.  It follows, moreover, from (1), that (3) legal reasoning ia tuonomous, since the class of legal reasons suffices to justify a unique outcome; no recourse to non-legal reasons is demaned or required."  Yet nothing in his entire article has any bearing on this claim, which is about competing jurisprudential views.  Even if most late 19th-century writers were "realists" instead of "formalists," this would have no bearing on the jurisprudential question about how we ought to understand adjudication.  Tamanaha needs to be clearer on this point.  His best target are writers like Gilmore and Frank who overstate the "formalist" tendencies of a certain era in legal thought.  The vice he must avoid is overstating, to the same extent, the "realism" (in any philosophically interesting sense) of that very same era.

Best Articles in Legal Philosophy That Appeared in 2007?

So, as I noted on my philosophy blog, The Philosopher's Annual is coming back to life, and now I've been asked to serve as a Nominating Editor.  I would be curious to hear from readers whether there were any philosophy of law articles that appeared in 2007 that they thought were really first-rate?  I think there might be one or two in contention, but I may also have missed good pieces.  All comments on this thread must be signed.  Post only once; as usual, comments may take awhile to appear.  Thanks for your assistance.

Cardozo on the Tasks of Philosophy of Law

This is Benjamin Cardozo from The Growth of the Law (Yale University Press, 1924), p. 24-25:

A philosophy of law will tell us how law comes into being, how it grows, and whither it tends.  Genesis and development and end or function, these if things, if no others, will be dealt with in its pages.  To these it will probably add a description of the genesis and growth and function, not only of law itself, but also of some of those conceptions that are fundamental in the legal framework. 

Most of these tasks are not--at least not at all obviously--part of the philosophy of law today, in part because it is not obvious that philosophers have the requisite skills and knowledge to address these potentially vast socio-historical issues.  This is, no doubt, because the reference point for what counts as "philosophy" has changed from Cardozo's day to our own.   Cardozo's most frequent philosophical references are to James, Windelband, Bergson, and Dewey.  Has anyone even read Windelband?  (I have heard the name, but I have not read him.)  It is a foreign philosophical climate, now forgotten (or should we say vanquished?), perhaps rightly so, perhaps not.  To be sure, some still read and teach bits of James and Bergson and Dewey, but they do not define the "climate" of philosophical opinion or inspire the "tasks" of the discipline.

New: Oxford Studies in the Philosophy of Law

I am very pleased to announce that Leslie Green and I will be editing a new annual, the Oxford Studies in the Philosophy of Law, which will publish commissioned and solicited work by leading established and emerging scholars in the philosophy of law. The first volume will appear in 2009, and all volumes will appear in both cloth and paperback. OSPL will be part of the distinguished Oxford Studies series, including existing volumes in Ancient Philosophy, Early Modern Philosophy, Metaphysics, Epistemology, and Metaethics.

The OSPL will include a broad range of problems and approaches, such as work in general jurisprudence, in the philosophical foundations of areas of substantive law, and in cognate areas of philosophy.  Both systematic essays and historical studies will be welcome.

All papers, including commissioned works, will be subject to review by the editors and by external referees. Oxford Studies in the Philosophy of Law will showcase the best new work in this growing field.

(Given this new project, I should note that I will be stepping down after seven years as an editor of Legal Theory.)

Gray on the Alleged Contradiction Between Justice Scalia's "Originalism" and His Opposition to Considering Foreign Sources of Law

From the first comment by David Gray (Duke) in this thread I learned of his paper on "Why Justice Scalia Should be a Comparativist Sometimes".  The paper purports to show that "on pain of contradiction" (p. 1251, and elsewhere) Justice Scalia's originalism commits him to consulting foreign sources to ascertain the meaning of provisions of the Constitution, like the 8th Amendment prohibition on "cruel" punishments.

The argument involves two key, and distinct, theses.

First, Gray claims that the general provisions of the Constitution were taken to be "referring to objective and timeless moral truths" (1262).  For example, "'cruel' picked out an objective moral category [sic.--he means "property"]" (1263), whereas Justice Scalia thinks "cruel" in the Constitution "means only what those living in 1791 believed was right or, less powerfully, what they had not rejected as cruel" (1263).  These, Gray says, represent "two different meanings of 'cruel.'  One refers to an objective moral category, the other to subjective beliefs regarding the content of that category" (1264).  To focus on the latter "imposes on the document a brand of moral relativism that is not consistent with the fact that some constitutional language had objective moral meaning for the Framers" (1264).  Since originalism claims that "texts should be read for what they meant at drafting and adoption" (1265), we ought to treat cruel as referring "to an objective moral category."

Second, Gray claims that the best way to think about objectivity is in terms of "intersubjectivity," that is, as what would emerge "through substantive and open exchange with others who have an interest in the answer" (1274).  (The footnotes cite Habermas in this regard.)  So, I take it, "cruel" punishments are just those about which would emerge an intersubjective consensus (during a "substantive and open exchange") that they are cruel.  Foreign sources of law are, then, taken to be among the pertinent inputs to this "substantive and open exchange" which allows us to pick out what is objectively cruel.

Gray does not appear to realize that the second thesis defeats the central argument of the paper, namely, about Scalia's self-contradiction.  Perhaps it is true that the "original" meaning of "cruel" took it to refer to what is really and genuinely cruel, i.e., "objectively" cruel.  Someone might accept that claim, and still deny that "objectivity" should be understood as Habermas understands it.  After all, it is surely incredible to suggest that the original "meaning" of cruel was that it referred to objective cruelness, as "objective" would be understood by Habermas!  But anarchronism isn't the real issue.  Gray has to show that the Framers understood "objectivity" his preferred way in order to show that Justice Scalia contradicts his own originalism by failing to attend to foreign sources.  He does not even gesture at such a showing, apparently not seeing that it undermines his claim about contradiction. 

Here's another way at the same point:  suppose Justice Scalia morphed into Justice Dworkin, and so agreed that a prohibition on "cruel" punishments is meant to prohibit the punishments that are really cruel.  But Justice Dworkin believes that the way to figure out which punihsments are really cruel is to engage in systematic moral theorizing and argument.  There is nothing in the claim that "cruel" means "objectively" cruel that rules out that possibility (among many others).  But if that's what objectivity requires, then there is no special reason to consult foreign sources.

(I have another worry about Gray's second claim:  Habermas's understanding of objectivity as intersubjectivity may actually be inconsistent with what is alleged to be the original meaning of "cruel."  For it seems--Gray isn't, in my view, clear about this--that on the Habermas view, the objective referent of a moral term like "cruel" is constituted by intersubjective agreement [under the right conditions] about that referent, which is not really a view that any moral realists would, in fact, accept as adequate to their realism.  Maybe someone can think of a counter-example?)

Now let's return to the first claim, namely, that the original "meaning" of cruel refers to those punishments that are really or objectively cruel.  This is a general line of thought that has been developed by a number of legal philosophers (David Brink and Michael Moore most prominently, but also Nicos Stavropoulos in his book Objectivity in Law, which supplies what Stavropoulos takes to be the requisite semantics for Dworkin's theory).  Gray is oddly silent on this literature.   

Contrast two competing views of meaning, what I'll call (following the standard conventions) the Causal Theory and the Empiricist Theory.  The Causal Theory claims that the referent of a term fixes its meaning, and that the referent is whatever was so "baptized" when the term was first used.  ("Cruel" is just whatever is essentially characteristic of the punishments first dubbed "cruel" way back when, whether or not those using the term appreciated what those essential features of "cruel" punishments were.)  The Empiricist Theory claims that the meaning of a term fixes its referent, and that the meaning is given by the various descriptive statements that competent speakers of the language would associate with the term.  (So, crudely, "cruel" punishments are just those that competent speakers of the language would take to be cruel.)

We can now restate Gray's first claim as follows:  the Framers thought of the meaning of "cruel" in a way best-captured by the Causal Theory, whereas Justice Scalia thinks of the meaning of "cruel" in a way best captured by the Empiricist Theory.  Therefore, Scalia is not really being an originalist about the meaning of "cruel" because he is construing its meaning in a way that would be unrecognizable to the Framers.

One has to be cautious when ascribing semantic theses to writers who are neither self-conscious about semantics nor explicit about staking out philosophical positions about meaning.  I am not convinced that Gray is correct in ascribing the Empiricist Theory of meaning to Scalia.  The key passage is footnote 85 (p. 1263), where Gray quotes Scalia affirming his commitment to natural law, and then saying, "The issue is whether it was supposed to be left up to nine lawyers to figure out for the whole country what the natural law is.  And I don't think there's anything in the mind of the framers that would suggest that."

The way I read this remark, in the context of this debate, is as follows:  the Constitution may, indeed, have been intended to prohibit what is really or objectively cruel ("metaphysical" cruelty), but that still leaves us with an "epistemic" problem, namely, figuring out what punishments are and aren't "cruel."  So what Gray would treat as Scalia's embrace of the Empiricist Theory of Meaning is nothing of the kind:  it is an attempt to solve the epistemic problem that is presented even if we agree that the Causal Theory is the correct account of meaning.

Now why adopt that solution to the epistemic problem?  An answer is suggested by Gray's discussion in Part IV (though Gray himself isn't trying to make this point, but it was suggested to me by the discussion there).  Justice Scalia's skepticism that "evolving standards of decency always mark progress" as opposed to "rot" (quoted at 1266) is just another version of the epistemic worry:  even if the 8th Amendment is supposed to prohibit those punishments that are "really" or "objectively" cruel, our epistemic limitations are such that there is no reason to be confident that in trying to discover the 'essence' of cruelty we won't do far worse, morally, than if we just adhere to the understanding of what cruelty really was held to be by the Framers.  So this does not commit Scalia to denying (as Gray would have it) that the Causal Theory of meaning is the correct account of the metaphysics of meaning; it just commits him to holding that the correct metaphysics of meaning (by hypothesis, the Causal Theory) still leaves a daunting epistemic problem.  Scalia proposes solving the epistemic problem via a different kind of originalism, one that treats the original understanding of what is "really" cruel as the touchstone for constitutional interpretation.

Justifying Originalism

A couple of weeks ago, Randy Barnett (Georgetown) was in town and gave an illuminating, synoptic presentation about the "new originalism," of which he is one of the leading proponents.  I have written before about the peculiarity that originalism is so widely embraced, notwithstanding the absence of a theoretical justification for its authority.  That charge is misplaced against Barnett, since his theory--as set out, e.g., in his 2004 book Restoring the Lost Constitution--has the correct theoretical structure any credible account of constitutional interpretation should have (yet, remarkably, a structure most of them don't even acknowledge as required!).  So, from a philosophical point of view, this makes Barnett's contribution to the debate of particular interest.  Before turning to what I learned from Barnett's presentation, let me set the stage for the general problem.

When it comes to constitutional interpretation in the United States, certainly at the highest appellate levels (where precedent imposes the least constraint), there is no convergent practice of behavior by judges:  they tend towards opportunism (a point famously captured in my colleague Philip Bobbitt's 1982 book on Constitutional Fate, though that was not his primary aim).  Sometimes they will appeal to original intent, sometimes to original meaning, sometimes to structural considerations, sometimes to plain meaning, sometimes to animating moral principles, and so on. 

There is, then, often no legal obligation to read the Constitution one way rather than another in the U.S.  A defense of originalism is, then, in the American context necessarily a theory about what judges (morally) ought to do, and, as such, it must be grounded in some broadly moral considerations.  The most pertinent of these, within the liberal political framework that I will take for granted here, will be those that bear on the question when courts are justified in exercising authority over individuals or when they are justified in bringing the coercive power of the state to bear against individuals.  (Dworkin, of course, thinks this last question is decisive about the nature of law, but he is mistaken about that for reasons we do not need to belabor here.)  For purposes here, I'm going to treat the two questions as interchangeable.  (Maybe there is a reason I shouldn't?) 

I'm not going to pretend that I can give an accurate summary of Barnett's overview of the literature; to the extent I get things right, readers may assume I recorded Barnett's comments correctly, otherwise not.

The "old" originalism (of the 1980s) treated the original intention of the framers/ratifiers of the Constitution as authoritative.  This "old originalism" was subjected to three objections (only one of which pertained to the key moral question, namely, about the authority of the original intent):

According to what I will call the "M&E Objection," there either does not exist a collective intention of the requisite kind or we have no reliable method for acquiring knowledge of such an intention.

According to the "Self-Contradiction Objection," the original intent of the framers/ratifiers was that their original intent about the Constitution should not be controlling; ergo, anyone who assumes original intent is authoritative has a reason not to consider original intent in interpreting the Constitution.  (Jeff Powell [Duke] supplied the argument, in a 1985 Harvard Law Review article, that the framers did not intent the original content to control.)

According to what Barnett called the "Dead Hand Objection," why should the intentions of long-dead ancestors bind us?

These three objections, correctly I would venture, buried the "old originalism." 

The New Originalism--first articulated by Justice Scalia, and defended most importantly by Barnett and Keith Whittington (Princeton, Politics Dept.)--claims that what is binding is the original public meaning of the text of the Constitution at the time of adoption (or at the time of amendment).   This new approach defeats the first two objections:  the Self-Contradiction Objection quite obviously so; the M&E Objection, because (as both Barnett and Whittington plausibly argue), the original public meaning is in many cases both determinate and knowable.  To be sure, original public meaning runs out, at which point judges must engage in "construction" (Whittington's term) of the Constitution, but in a way that does not contradict original public meaning.

That leaves, of course, the "Dead Hand Objection," which is (as Barnett acknowledges) the central objection to an originalist theory.  A theory of (as Barnett puts it) "constitutional legitimacy" is a constraint on any theory of constitutional interpretation:  the constitution must be interpreted in such a way that the state may legitimately exercise coercive power over people on that basis.  Barnett, as is well-known, thinks that the constitution is legitimate insofar as it comports with a certain kind of rights-based view of justice that is more-or-less libertarian in character.  The New Originalism is then justified on the grounds that the original public meaning of the U.S. constitution embodies that view of justice. 

That would, of course, make the argument for the New Originalism (non-pejoratively) parochial, i.e., contingent on the content of any particular constitution.  (Cass Sunstein [Chicago], I take it, exploits that fact in his recent intervention into this debate.)  But that is not quite Barnett's conclusion, as he made clear when I posed this worry to him.  He also thinks that the writtenness of the Constitution is a fact supporting the New Originalism, becaue the original public meaning as written is something that binds those who make laws that, in turn, purport to bind us as citizens.  At this point, I confess I don't follow the arguments.  If "constitutional legitimacy" in Barnett's terms (or "authority" in Razian terms) is the benchmark for the method of interpretation we should apply to a text, then I can not see how the writtenness of the text figures as an independent consideration.

Indeed, it seems to me a stronger conclusion is suggested:  namely, that once we acknowledge (as Barnett rightly does) that a theory of constitutional interpretation must answer to a theory of constitutional legitimacy, then the constitution (as a written document, or as a document about which framers had some original intention, or as a document which had an original "public" meaning, and so on) drops almost entirely out of the picture:  the theory of constitutional legitimacy tells judges how they should decide cases, and the written constitution is, at best, a proxy for what is constitutionally legitimate or is relevant because of its effect on the reasonable expectations of citizens (the latter being a factor bearing on constitutional legitimacy).  In other words, Barnett's theory of constitutional interpretation, because it (unlike most theories--Ackerman's, Amar's, etc.) has the correct moral structure is not really a defense of originalism, but a defense of whatever method of interpretation produces "legitimate" (i.e., morally authoritative) outcomes.   The writtenness of the constitution, and its original meaing, might, indeed, figure at this point, but only in the way that Raz (who, in an odd way, echoes Posner) suggests:  namely, because some moral value (some moral value that bears on authority) attaches to the fact that some understanding of the constitution (original or otherwise) has been stable, relied upon, figures in the public understanding of the society in which people plan their lives, etc. 

I have invited Professor Barnett to comment on these issues, and I hope he will do so.  A note, also, for those new to this blog about commenting:  signed comments are preferred, but signed or otherwise, all comments are reviewed for substance, and only those that make an intellectual contribution are approved.  Post only once; comments may take awhile to appear.

UPDATE:  Professor Barnett's detailed reply is here.  I shall let commenters discuss this for a bit, before trying to put together my own thoughts in response.

ANOTHER:  Larry Solum (Illinois) has a long post on the subject du jour here.  I had thought it obvious that the post above presupposed legal positivism, and thus presupposed that if there were a legal obligation to employ a particular method of constitutional interpretation it could only be because of the actual practice of officials constituting the social rule that is the Rule of Recognition in the American legal system.  (In principle, there could be a legal obligation to employ a particular interpretive method because such a method is required by a properly sourced norm, but there is no such authoritative source in the American context:  the Constitution, e.g., is silent on how it is to be interpreted.)  But Solum's comments, as well as some of the discussion in the comments here, make clear that it wasn't obvious!

ONE MORE:  This is useful by way of reply to Solum.

Green v. Shapiro on the Relevance of Deontic Logic

Scott Shapiro (Michigan) has weighed in with some sharp questions (scroll down) in response to the claim by Michael Steven Green (William & Mary) that Anglophone philosophers of law are "peculiar" and "prejudiced" in failing to attend to deontic logic.

UPDATE:  More on deontic logic--this time, in relation to ethics--here, with Ralph Wedgwood (Oxford), Mark Kalderon (UCL), Simon May (Virginia Tech), and Nick Zangwill (Durham), among others, weighing in.

Separated at Birth? Richard Posner and Joseph Raz on Judicial Interpretation

Richard Posner, The Pragmatics of Moral and Legal Theory (Harvard University Press, 1999), p. 242:

The judicial pragmatist...wants to come up with the decision that will be best with regard to present and future needs.  He is not uninterested in past decisions, in statutes, and so forth.  Far from it.  For one thing, these are repositories of knowledge, even, sometimes, of wisdom; so it would be folly to ignore them even if they had no authoritative significance.  For another, a decision that destabilized the law by departing too abruptly from precedent might on balance have bad consequences.  Judges often must choose between rendering substantive justice in the case at hand and maintaining the law's certainty and predictability.  The trade-off--posed most starkly in cases in which the statute of limitations is asserted as a defense--will sometimes point to sacrificing substantive in the individual case to consistency with previous cases or with statutes or, in short, the well-founded expectations necessary to the orderly management of society's business...

So the pragmatist judge regards precedent, statutes, and constitutional text both as sources of potentially valuable information about the likely best result in the present case and as signposts that he must be careful not to obliterate or obscure gratuitously, because people may be relying upon them.

Joseph Raz, "On the Authority and Interpretation of Constitutions:  Some Preliminaries," in Constitutionalism:  Philosophical Foundations, ed. L. Alexander (Cambridge University Press, 1998), p. 178:

[G]iven that constitutional decisions, like many other legal decisions, have on people's lives, they are justified only if they are morally justified.  As we saw, considerations of continuity are of great moral importance...But they are hardly ever the only moral considerations affecting an issue.  When they are not, courts should try to reach decisions that satisfy as much as possible all relevant considerations, and when it is impossible to satisfy all completely, they should strive to satisfy them as much as possible, given their relative importance.  Hence, while on occasion the desirability of continuity in the matter concerned will prevail over all else, often this will not be the case, though even when continuity does not override all else, it should still be taken into account as much as possible.  Hence, in such cases, while the courts should still interpret the constituion, for they are still rightly moved by considerations of continuity, they should also give weight to other moral considerations. That is, their interpretation should also be forward-looking.

Originalism: Still the Theory Without a Justification

I am struck by the fact that, based on Larry Solum's detailed account of a recent conference session on "the new originalism",  no one in attendance appears to have seen the need to explain why the "original" meaning of a text should be the controlling one for purposes of constitutional interpretation.  All the debate appears to be about the feasibility of originalist interpretation, not its propriety--but that, of course, is to hand a huge, and unwarranted, victory to the originalists.  I have touched on this peculiarity of contemporary constitutional jurisprudence previously (also here).