Putting meaning in its place: Originalism and philosophy of language

Law and Philosophy

Volumn 25, Issue 4, 2006, Pages 387-416

  Booher, Troy ^a  

^a Shell and Wilmer LLP   (United States)

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EID: 33646890872     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10982-005-3219-3     Document Type: Review

References (121)

1. For examples, see Ackerman, Bruce, We the People: Foundations (Harvard University Press, 1991);
2. Ackerman, Bruce, We the People: Transformations (Harvard University Press, 1998);
3. Amar, Akhil R., The Bill or Rights: Creation and Reconstruction (Yale University Press, 1998);
4. Barnett, Randy E., 'An Originalism for Nonoriginalists', Loy. L. Rev. 45 (1999): 611;
5. Barnett, Randy E., Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, 2003);
6. Dworkin, Ronald, 'Comment', in Scalia, Antonin, A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 1997a);
7. Dworkin, Ronald, 'The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve', Fordham L. Rev. 65 (1997b): 1249;
8. Flaherty, Martin S., 'History 'Lite' in Modern American Constitutionalism', Colum. L. Rev. 95 (1995): 523;
9. Lessig, Lawrence, 'Fidelity and Constraint', Fordham L. Rev. 65 (1997): 1365;
10. McConnell, Michael W., 'The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin's 'Moral Reading of the Constitution', Fordham L. Rev. 65 (1997): 1269;
11. Moore, Michael S., 'Justifying the Natural Law Theory of Constitutional Interpretation', Fordham L. Rev. 69 (2001): 2087;
12. Perry, Michael J., The Constitution in the Courts: Law or Politics? (Oxford University Press, 1994);
13. Scalia, Antonin, A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 1997);
14. Treanor, William M., 'The Original Understanding of the Takings Clause and the Political Process', Colum. L. Rev. 95 (1995): 782;
15. Whittington, Keith, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (University Press of Kansas, 1999).
16. An important recent shift in focus for many originalists has been from concern only with the subjective intent of those who drafted the Constitution to concern with how the text itself was originally understood. This shift explains originalism's recent resurgence as an acceptable method of constitutional interpretation for many legal scholars. For a recent discussion of this point, see Barnett (2003).
17. I do not directly address fidelity to prior interpretations of the Constitution, although precedent ultimately must be dealt with by anyone advancing a method of constitutional interpretation. Whatever interpretative method one adopts (unless it advocates blindly following precedent), there will be instances in which precedent is at odds with the result one would reach independent of precedent. For this reason, all methods of interpretation ultimately must have something to say about the role of precedent. For a recent discussion of how originalists might deal with precedent, see Barnett, Randy E., 'Trumping Precedent with Original Meaning: Not as Radical as it Sounds', Constitutional Commentary (forthcoming).
18. Scalia (1997), p. 10.
19. Ibid., p. 25.
20. Ibid., p. 22.
21. For one example, consider Cass Sunstein, 'Everyone Agrees that the Constitution Is Law.' Sunstein, Cass, The Partial Constitution (Harvard University Press, 1993), p. 93.
22. Scalia (1997), p. 38.
23. Ibid., p. 46.
24. Dworkin, Ronald, Freedom's Law (Harvard University Press, 1996), p. 7.
25. Dworkin, Ronald, Freedom's Law, (1996), p. 7, Ibid.
26. Dworkin, Ronald, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (Knopf Publishing Group, 1994), p. 145.
27. While Dworkin is the best example of one who holds this view, he is not alone. For example, Lawrence Sager argues that because certain provisions of the Constitution express "broad structural propositions and moral generalities,"the text itself obligates those interpreting it to use independent moral judgment "to fill in these general stipulations with concrete applications, to fashion workable and defensible conceptions of the Constitution's moral concepts."Sager, Lawrence, 'The Domain of Constitutional Justice', in Larry Alexander (ed.), Constitutionalism (Cambridge University Press, 1998), p. 238.
28. Dworkin (1997a), p. 124.
29. Ibid., p. 122.
30. Dworkin (1997b, p. 1253). Notice, however, that Dworkin, without explanation, simply ignores the words "and unusual"in the provision.
31. Ibid., p. 1252.
32. Dworkin (1997a, p. 116).
33. Although Dworkin never cites to him, Michael Moore recognized the importance of these distinctions for constitutional interpretation as early as 1985. Moore, Michael S., 'A Natural Law Theory of Interpretation', S. Cal. L. Rev. 58 (1985): 279, 339.
34. Moore similarly distinguished an "intention to accomplish certain effects"from an intention to mean something by using certain words, what Moore called "semantic intentions."Moore, Michael S., 'A Natural Law Theory of Interpretation', S. Cal. L. Rev. 58 (1985): 279, 339, Ibid.
35. Dworkin (1997b, p. 1255).
36. Dworkin (1997a, p. 119).
37. Ibid.
38. Ibid., pp. 116-117.
39. Ibid., p. 120.
40. Ibid., pp. 120, 123-124.
41. Scalia (1997, p. 46).
42. Ibid.
43. Ibid., pp. 43, 146.
44. Ibid., p. 147;
45. Dworkin (1997a, p. 124).
46. Dworkin (1997a, p. 124). I am thankful to an anonymous referee for suggesting that I discuss this point.
47. I say "crudely"because context plays an important role in semantics as well, e.g., the semantic content of indexicals. Kaplan, David, 'Demonstratives', in Joseph Almog, John Perry, Howard Wettstein (eds.), Themes from Kaplan (Oxford University Press, 1989), pp. 481-563.
48. Although there are many different distinctions the semantics/pragmatics distinction may be shedding light upon - e.g., the type/token distinction, the sentence/utterance distinction, the meaning/use distinction, the linguistic meaning/speaker's meaning distinction - it is not necessary to settle upon any one of these distinctions here. As demonstrated below, whether we consider interpreting a particular constitutional provision to be interpreting a sentence token, utterance interpretation, determining how language was used, or discovering speaker meaning, we must attend to pragmatic facts to perform the required task properly.
49. Grice, Paul, Studies in the Way of Words (Harvard University Press, 1989).
50. Grice, Paul, Studies in the Way of Words, Ibid., p. 26.
51. Szabo, Zoltan G., 'Introduction', in Zoltan G. Szabo (ed.), Semantics vs. Pragmatics (Oxford University Press, 2005a), pp. 2-3.
52. This is a variation on Grice's example (1989, 33).
53. Dworkin (1997a, pp. 116-117. 1997b, p. 1255).
54. Dworkin (1997a, pp. 116-117).
55. Szabo, Zoltan G., 'Introduction', in Zoltan G. Szabo (ed.), Semantics vs. Pragmatics (Oxford University Press, 2005a), p. 1.
56. Kadmon, Nirit, Formal Pragmatics: Semantics, Pragmatics, Presupposition, and Focus (Blackwell Publishers, 2001), p. 3.
57. Glanzberg, Michael, Focus: A Case Study on the Semantics-Pragmatics Boundary, in Zoltan G. Szabo (ed.), Semantics vs. Pragmatics (Oxford University Press, 2004), p. 107.
58. Bach, Kent, The Semantics-Pragmatics Distinction: What It Is and Why It Matters', in Ken Turner (ed.), The Semantics-Pragmatics Interface from Different Points of View (Oxford University Press, 1999), p. 65.
59. In fact, it seems doubtful that interpretation is ever wholly independent of pragmatic facts because it is always possible that the words in question were uttered by an actor, and to know otherwise is to introduce pragmatic facts.
60. Szabo (2005a, p. 3). This is not to ignore the distinction J. L. Austin draws between illocutionary and perlocutionary acts. The former refers to what one intends to do in uttering certain words (in uttering "Watch out!"I mean to warn you that a train is coming), whereas the latter refers to what one intends to accomplish by making the utterance (by uttering "Watch out!"I mean to bring you to a halt). Austin, John L., How to Do Things with Words (Harvard University Press, 1962), pp. 83-94).
61. One reason this distinction is important, as Szabo explains, is that it permits one to read Grice as stating that the relevant intended effect in the addressee are the illocutionary effects not perlocutionary effects. Szabo, Zoltan G., 'The Distinction Between Semantics and Pragmatics', in Zoltan G. Szabo (ed.), Semantics vs. Pragmatics (Oxford University Press, 2005b, pp. 3-4). This does not mean, however, that understanding the intended perlocutionary effect is irrelevant to utterance interpretation as Dworkin's argument requires, but rather that it is not necessary to know the intended perlocutionary effect to interpret an utterance properly. While it may not be necessary to know the age of a speaker in Chicago to determine whether she is using the phrase "It's da bomb"to refer to an explosive devise, it certainly would be relevant information.
62. Bach (1999).
63. This also explains why attempts to employ a theory of meaning and reference developed by Kripke, Saul, Naming and Necessity (Harvard University Press, 1980)
64. and Putnam, Hilary, "The Meaning of 'Meaning'", in Mind, Language, and Reality: Philosophical Papers, 1 (1975): pp. 215-271.
65. (K-P semantics) to interpret constitutional texts are bound to fail. Nicos Stravropoulos argues that Dworkin is best understood this way (Stravropoulos, Nicos, Objectivity in Law (Clarendon Press, 1996)). Stavropoulos argues that the term "cruel"is a rigid designator of evolving moral standards regarding cruelness just as the term "gold"is a rigid designator of substances with atomic number 69. The claim that K-P semantics applies to moral terms is a highly contentious one, but more important, even if Stravropoulos' argument is successful, his claims are beside the point. K-P semantics is designed to shed light upon sentence meaning and semantic content, not utterance interpretation more generally. Kripke himself recognizes that pragmatic facts are relevant to interpreting specific utterances.
66. Kripke, Saul, 'Speaker's Reference and Semantic Reference', in Gary Ostertag (ed.), Definite Descriptions A Reader (MIT Press, 1998), p. 243;
67. Ostertag, Gary, 'Introduction', in Gary Ostertag (ed.), Definite Descriptions A Reader (MIT Press, 1998), pp. 13-19
68. . In fact, the point of drawing a distinction between semantics and pragmatics is typically to keep the various ways in which we use words to communicate from soiling our tidy semantic theories. As for Dworkin himself, it is unclear whether he agrees with Stravropoulos' characterization of his work. In a recent piece, Dworkin first rejects the notion that there are "political kinds"and then nonetheless proceeds as if there were political kinds, stating that "in fact there are instructive similarities between natural kinds and political concepts."Dworkin, Ronald, 'Hart's Postscript and the Character of Political Philosophy', Oxford Journal of Legal Studies 24(1) (2004).
69. However, even this (seemingly) more modest claim requires Dworkin to explain the relationship between his method of interpretation and his moral theory. How do we determine whether capital punishment indeed is cruel, as a matter of fact? For a recent discussion that casts doubt upon whether Dworkin can provide an adequate explanation of this relationship, see Mahoney, Jon, 'Objectivity, Interpretation, and Rights: A Critique of Dworkin', Law and Philosophy 23 (2004): 187-222.
70. Dworkin (1996, p. 8).
71. Ibid., p. 76;
72. Dworkin (1996, p. 10). On its face, this distinction is also unclear. One intention speakers (lawmakers) typically have is that addressees (law interpreters) understand their words a certain way.
73. My examples are variations on those provided in Donnellan, Keith, 'Reference and Definite Description', Philosophical Rev. 75 (1966): 281 While some philosophers, such as Saul Kripke, have argued that the referential use of descriptive language Donnellan identifies illustrates a pragmatic, not a semantic, phenomenon, these arguments are not relevant to the point made here.
74. Kripke (1998, p. 243);
75. Ostertag (1998, pp. 1319). Kripke recognizes that speakers may use descriptive language referentially, and that if we want to interpret their utterances correctly, then we do not simply identify the semantic content of the words they use.
76. Kripke (1998, p. 243). In any event, insofar as Dworkin recognizes (correctly) that pragmatic facts are relevant to utterance interpretation, arguments such as Kripke's are unavailable.
77. It is important to note that the distinctions I am making do not return originalism to relying exclusively on the subjective intentions of the framers. What is important is what the framers were reasonably understood to have had in mind, not what the framers actually (perhaps secretly) had in mind. While the latter typically informs the former, the fact that they are distinct permits originalists to maintain that it is the reasonable understanding of the Constitution at the time of ratification that guides constitutional interpretation. Alexander, Larry and Saikrishna, Prakash, "'Is That English You're Speaking?' Why Intention Free Interpretation is an Impossibility", San Diego L. Rev. 41 (2004): 967, pp. 979-982.
78. It is not just definite descriptions that can be used referentially, but rather almost any descriptive language. In a deed, a description of "36 degrees running north of a creek,"refers to a particular creek, not just any creek that one will find somewhere south of the property, perhaps in Peru. Technical terms can also be used the same way.
79. Dworkin flatly denies this, but without employing a distinction between semantics and pragmatics, it is difficult to understand how this could fail to be the proper interpretation of the boss's instructions in this context. Dworkin (1997b, p. 1255).
80. Specifically, the Fifth Amendment provides protection for anyone accused of "a capital, or otherwise infamous crime,"which encompassed all felonies at the time.
81. Dworkin (1997a, p. 117). Elsewhere, when explaining what "textual fidelity"requires, Dworkin recognizes that one "cannot make good sense of their behavior unless we assume that they meant to say what people who use the words they used would normally mean to say."Dworkin (1997b, p. 1253) (emphasis added).
82. Dworkin insists on separating the question of who is to interpret the Constitution from the question of what is the correct interpretation of the Constitution. (1997a, p. 124; 1997b, p. 1251; 1996, p. 12;
83. Dworkin, Ronald, Law's Empire (Harvard University Press, 1986), p. 370).
84. While these two questions are conceptually distinct, the answer to the former may shed light on the answer to the latter. Specifically, just because we (generally) now accept that the Supreme Court is the final, exclusive authority on how to interpret the Constitution, if the framers were understood to have a greater interpretative role for other branches of government or juries in mind, this could be relevant to how to interpret the Constitution. More specifically, if a provision was addressed to, and intended to be interpreted by, all branches of government or juries, then the evolving moral judgments of different branches or the people themselves could be relevant to interpreting the Constitution. Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press, 2004a);
85. Kramer, Larry D., 'Popular Constitutionalism, circa 2004', Calif. L. Rev. 92 (2004b): 939;
86. Whittington, Keith, Constitutional. Construction: Divided Powers and Constitutional Meaning (Harvard University Press, 2001);
87. McConnell, Michael W., 'Textualism and the Dead Hand of the Past', Geo. Wash. L. Rev. 66 (1998): 1127.
88. Dworkin (1997b, p. 1255).
89. Dworkin (1996, p. 76).
90. Even if Dworkin were correct, however, it is far from clear what you or I would mean in uttering the phrase "cruel and unusual punishments"in ordinary speech. Most likely, if the phrase were uttered, it would be used in a technical, legal way, rather than simply to refer to those punishments that are both cruel and rarely administered, which seems to be what Dworkin assumes. The most natural understanding of (what ordinary English speakers would mean by) the utterance, "cruel and unusual punishments shall not be inflicted,"is that they are employing technical, legal jargon, which requires inquiry into how the phrase is understood in legal contexts. Using this to guide legal interpretation, however, leads us in a circle. Therefore, even if Dworkin were correct that the evidence Scalia cites is irrelevant to constitutional interpretation, Dworkin's interpretation of the provision does not readily follow.
91. Dworkin (1997a, p. 124).
92. Dworkin (1996, p. 8).
93. This shows that Randy Barnett is mistaken when he concludes that the move by originalists from the intent of the framers to the original understanding of the text leads to references to dictionaries and deprives historians of a role to play. Barnett (1999, p. 62).
94. In fact, while not dispositive, it does seem clear that the words of the Eighth Amendment were virtually copied from the English Declaration of Rights of 1689, which was enacted in "response to sentencing abuses of the King's Bench."Helling v. McKinney, 509 U.S. 25, 38 (1993) (Thomas J., dissenting);
95. but see Granucci, Anthony F., "Nor Cruel and Unusual Punishment Inflicted: The Original Menaing", Calif. L. Rev. 57 (1969): 4.
96. Harmelin v. Michigan, 501 U.S. 957, 965-985 (1991)
97. (tracing the history of the prohibition on cruel and unusual punishment in the English Declaration of Rights). For an influential and revealing discussion of how the Eighth Amendment was originally understood, see Granucci (1969).
98. Gregg v. Georgia, 428 U.S. 153, 186-187 (1976);
99. see also Roper v. Simmons, 125 S. Ct. 1183 (2005).
100. Dworkin (1997a, p. 124).
101. Michael Moore provides an equally unpersuasive account of the historical context in which the Constitution was drafted as supporting his favored interpretation. Moore merely asserts that "[s]uch believers in natural rights as Hamilton and Madison took themselves to be referring to entities (natural rights) that had a nature independent of theirs or anyone else's thoughts about it[,]"and then concludes from this assertion that, "[w]hen believers in natural rights used phrases, such as 'no one shall be subject to cruel and unusual punishments' or no one shall be 'denied equal protection of the laws,' their semantic intentions were to refer to rights whose nature was to guide meaning."Moore (2001, p. 1095). First, it is worth noting that neither Hamilton nor Madison was alive to draft or to ratify the Equal Protection Clause in 1868. Second, and more important, even if they had been, the mere fact that they believed in natural rights - in the sense Moore construes them - does not itself demonstrate that they or their contemporaries understood the Eighth Amendment to incorporate them.
102. Scalia (1997, p. 145).
103. It is worth noting that while the language in Eighth Amendment is virtually identical to that in the English Declaration of Rights, it differed from the language used in all but one state constitution in 1791: Five states prohibited "cruel or unusual punishments,"see Del. Declaration of Rights, Section 16 (1776);
104. Md. Declaration of Rights, Section XXII (1776);
105. Mass. Declaration of Rights, Art. XXVI (1780);
106. N. C. Declaration of Rights, Section X (1776);
107. N. H. Bill of Rights, Art. XXXIII (1784), and two others prohibited "cruel"punishments, see Pa. Const., Art. IX, Section 13 (1790);
108. S. C. Const., Art. IX, Section 4 (1790), while one prohibited "cruel and unusual punishments,"see Va. Declaration of Rights, Section 9 (1776).
109. Dworkin (1996, p. 10).
110. Dworkin (1997a, 117).
111. Dworkin (1986, p. 50).
112. Ibid.
113. Ibid., p. 52. Dworkin does not consider judges engaging in constructive interpretation to be "legislating from the bench."Dworkin believes he deflects this charge by distinguishing "fit"from "political justification."Unlike legislators, judges are constrained by considerations of "fit"because, according to Dworkin, judges "may not read the abstract moral clauses as expressing any particular moral judgment, no matter how much that judgment appeals to them, unless they find it consistent in principle with the structural design of the Constitution as a whole, and also with the dominant lines of past constitutional interpretation of other judges."
114. Dworkin (1996, p. 10). As Michael McConnell has pointed out, however, Dworkin provides no principled way to decide when fidelity to "text, history, tradition, and precedent"is proper and when judges should "exercise their moral-philosophical faculties"to make "the Constitution 'the best it can be."
115. McConnell (1997, p. 1270). In other words, the historical constraint Dworkin gestures at is no constraint at all in practice because judges, without principle or text to guide them, decide when to give weight to history and when to ignore it. In the end, there is little difference between legislators and judges for the Dworkin of Construction.
116. I say "may not"because I have not yet shown that when the historical context in which the Constitution was written is examined it does not inform us that we should consider our current moral views when interpreting the text. It seems unlikely for the Eighth Amendment, but nonetheless, further argument is required.
117. Evidence that Dworkin would not abandon his moral reading when it conflicts with fidelity is that the Dworkin of Conversation still characterizes his method of interpretation as constructive interpretation. Dworkin (1997b, 1252).
118. Dworkin thinks this characterization is correct, in part, because he does not accept that there is a politically or morally neutral way to interpret legal texts. Dworkin (2004). As Ram Neta recently argued, this claim is dubious. Neta, Ram, 'On the Normative Significance of Brute Facts', Legal Theory 10 (2004): pp. 199-214. While this is not the place for a full discussion of the issue, it is worth noting that Dworkin's most recent argument in support of this claim fails. Dworkin argues that that a certain type of positivist, such as Scalia, must take sides in legal disputes because his position entails that certain arguments legal disputants employ are legally irrelevant. For example, according to Dworkin, if Party A wants a court to disregard a statute because it would be unfair to apply it in her case, then because Scalia's position would entail that her opponent, Party B, should win under the law, Scalia is taking sides, and thus, is not remaining neutral.
119. Dworkin (2004). However, such examples do not show that positivism, or at least the version adopted by Scalia, lacks neutrality, not in the relevant sense anyway. If the content of the statute were exactly the opposite, then Party B would be arguing that the law is unfair, and in that case Scalia would rule against Party B. Consider Scalia's dissent in
120. State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408, 429 (2002), in which Scalia recognized that a substantive due process right cannot be created to protect corporations from punitive
121. damage awards any more than one can be created to ensure a woman's right to choose to have an abortion. The only "side"Scalia is taking is the side of those who were properly authorized to enact the relevant law in the first place. Opting out of a moral debate may have moral implications, but it does not necessarily amount to taking sides in the moral debate, any more than opting out of a scientific debate amounts to taking sides on contentious scientific issues. The fact that parties make certain moral arguments, which at times are accepted by judges, does not show positivism is incomplete any more than the fact that certain "intelligent design"arguments at times are accepted by scientists shows that science curricula in public schools is incomplete.