Bruce Boyden has emailed some thoughtful comments on my recent originalism post:
I have a couple of comments on what you’ve written, which seem too narrowly targeted to post in a comment on some other site.
First, I don’t think your response to Leiter based on Whittington’s distinction between constitutional interpretation and constitutional construction helps New Originalism very much. The problem is that you’ve answered Leiter’s argument that judges are not in fact applying originalism by narrowing the scope of originalism to a small – and boring – subset of constitutional questions: how many senators does each state get, does Congress have the power to establish a post office, etc. All the really interesting questions – the ones everyone fights over, such as what is due process, what does equal protection require, what are the bounds of executive power, what is an establishment of religion – those are all “constitutional construction” issues, which judges can use all sorts of methods to resolve, whether or not they are “originalist.” This answers Leiter’s point, but only at the expense of making “New Originalism” practically irrelevant.
Second, I think there is more life in the alternatives to original public meaning originalism than you suggest, which for purposes of this debate means that something actually rides on whether semantic originalism can be defended as the correct method of interpretation or not. Either “contemporary public meaning” can be built into a stronger theory than you outline, or there is a fourth theory which you do not list in your discussion of alternatives. For example, I can easily imagine a “judicial opinion openly admit[s] embracing an interpretation . . . that is contrary to original public meaning” and that does not “sound quite odd.” For instance, take this imaginary court statement: “It is beyond cavil that the Eleventh Amendment means that a state citizen cannot sue his or her own state for damages in federal court. See Seminole Tribe v. Florida; Hans v. Louisiana; [other lower court cases saying the same thing].” The claim is not that the text of the Eleventh Amendment meant something at the time of ratification; the claim is that the Eleventh Amendment means something (and has long meant something) in the context of deciding sovereign immunity cases in U.S. courts. Where do you get that meaning from? A long line of previous decisions, all of which are at odds with the original public meaning of the text of the Eleventh Amendment. This theory has an obvious weakness, that it could be subject to interpretive lock-in on a suboptimal interpretation. In order to be a complete theory, it would need some sort of means of addressing that point, of determining when the meaning of a clause has changed within the relevant social context that requires more than simply an individual judge’s unfettered command; but I think this interpretive theory is far from “odd,” in the sense of being unusual. Indeed, I believe it is fairly commonly used.
Third, I think it’s incorrect to draw a sharp line between “semantic originalism” and normative claims, but I’m not sure you need to draw that line. The problem I see is that semantic claims *are* normative claims – they are claims about the way in which a reader or listener *should* interpret a speech-token. They are not “facts about the natural world,” they are facts about the social world. Tokens have no meaning independent of a social context. I recognize there’s a long line of debate about this, but I think it’s tangential to your point, and I believe you could safely concede this point at least for purposes of this debate.
Instead, I think the line is better drawn between two types of normative claims: normative claims about how to interpret a given speech-token, and normative claims about what decisions judges should make in particular cases. Leiter’s argument re-phrased is that establishing the truth of the first type of normative claim (Theory N-i) does not give you the latter type of normative claim (Theory N-d). You need N-d to specify what judges should do, given interpretation N-i; without it, you have no reason to prefer Result X, entailed by N-d and N-i, to inconsistent Result Y, which follows from N-i and a different normative theory of decision-making, N-d2. Again, I get the sense that you envision that most N-d2’s will give unfettered discretion to judges and others. (See the list of examples about whether the semantic text of orders is binding on officials.) But of course mixed theories are possible, and there could be all sorts of rules that both permit and constrain extra-textual behavior. So the possibility of an N-d2 that gives a different result (Y) than that suggested by original public meaning (X) appears to me to be a real threat that needs to be overcome (assuming original public meaning applies in a significant way to any but the most obvious of cases).
I’ll have something to say about some of the substance of Boyden’s remarks next week.