The irrelevance of writtenness in constitutional interpretation

University of Pennsylvania Law Review

Volumn 158, Issue 4, 2010, Pages 1025-1091

  Coan, Andrew B ^a  

^a UNIVERSITY OF WISCONSIN LAW SCHOOL   (United States)

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EID: 77951785725     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (333)

1. 5 U.S. (1 Cranch) 137 (1803).
2. Id. at 176-177
3. See, e.g., Michael Stokes Paulsen, The Irrepressible Myth of Marbury, 101 MICH. L. REV. 2706, 2707-09 (2003);
4. Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. CHI. L. REV. 887, 914 (2003).
5. See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 6 (Yale Univ. Press 2d ed. 1986) (1962);
6. William W. Van Astyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1, 23;
7. Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346, 1383-84 (2006);
8. see also Bernadette Meyler, Daniel Defoe and the Written Constitution, 94 CORNELL L. REV. 73, 75-76 (2008) (canvassing the debate).
9. See, e.g., Paulsen, supra note 3, at 2714.
10. See, e.g., BICKEL, supra note 4, at 261;
11. Van Astyne, supra note 4, at 22.
12. See BICKEL, supra note 4, at 5;
13. Van Alstyne, supra note 4, at 22.
14. See Randy E. Barnett, An Originalism for Nonoriginalists, 45 LOY. L. REV. 611, 636 (1999);
15. see also KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION 50-61 (1999);
16. Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291, 303 (2007) [hereinafter Balkin, Abortion and Original Meaning];
17. Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 CONST. COMMENT. 427, 429 (2007) [hereinafter Balkin, Original Meaning and Constitutional Redemption];
18. Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 GEO. L.J. 1113, 1127-28 (2003);
19. Gary Lawson & Guy Seidman, Originalem as a Legal Enterprise, 23 CONST. COMMENT. 47, 71 (2006);
20. Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, 103 Nw. U. L. REV. 857, 859 (2009). Historical antecedents of this argument can be found in South Carolina v. United States and Muller v. Oregon.
21. See South Carolina v. United States, 199 U.S. 437, 448 (1905) ("The Constitution is a written instrument. A such its meaning does not alter. That which it meant when adopted it means now.");
22. Muller v. Oregon, 208 U.S. 412, 420 (1908) ("Constitutional questions, it is true, are not settled by even a consensus of present public opinion, for it is the peculiar value of a written constitution that it places in unchanging form limitations upon legislative action, and thus gives a permanence and stability to popular government which otherwise would be lacking.").
23. New Originalists themselves tend to emphasize the shift from original intent to original public meaning. See, e.g., Keith E. Whittington, The New Originalism, 2 GEO. J.L. & PUB. POLY 599, 609 (2004);
24. Lawrence B. Solum, Semantic Originalism 18-19 (Univ. of 111. Coll. of Law, Pub. Law and Legal Theory Research Papers Series, Research Paper No. 07-24, 2008), available at http://ssrn.com/abstract=1120244. For reasons ably discussed by Mark Tushnet, there is less to this distinction than meets the eye.
25. See Mark Tushnet, Heller and the New Originalism, 69 OHIO ST. L.J. 609, 612 (2008).
26. The best existing treatments are Richard A Primus, When Should Original Meanings Matter?, 107 MICH. L. REV. 165, 177-80 (2008),
27. and Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. REV. 1, 59-64 (2009). Both are helpful but brief. A a consequence, neither recognizes or responds to the full range of analytically distinct originalist arguments from writtenness.
28. See, e.g., WHITTINGTON, supra note 8, at 60-61;
29. Saikrishna B. Prakash, The Misunderstood Relationship Between Originalism and Popular Sovereignty, 31 HARV. J.L. & PUB. POLY 485, 486-87 (2008);
30. Michael Stokes Paulsen, How to Interpret the Constitution (and How Not to), 115 YALE L.J. 2037, 2056-57 (2006)
31. (reviewing AKHIL REED AMAR, AMERICA'S CONSTITUTION (2005);
32. JED RUBENFELD, REVOLUTION BY JUDICIARY (2005)).
33. See Saikrishna B. Prakash, Overcoming the Constitution, 91 GEO. L.J. 407, 420 (2003)
34. (reviewing RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION (2001));
35. see also Lawson & Seidman, supra note 8, at 71;
36. Paulsen, supra note 11, at 2056-2057
37. Charles Leslie Stevenson, Persuasive Definitions, 47 MIND 331, 331 (1938) (internal quotation marks omitted).
38. The claim is, in important respects, a narrow one. It is agnostic on the lively internecine disputes among originalists, of which there are a great many. See Berman, supra note 10, at 9-16 (summarizing the many disputes among originalists). It is also agnostic on the possibility that we have an unwritten, as well as a written, Constitution.
39. See Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703 (1974);
40. Ernest A. Young, The Constitution Outside the Constitution, 117 YALE L.J. 408 (2007). It is even agnostic on the ultimate desirability of an originalist interpretive approach. There is a simple reason for this: none of these controversies can be resolved one way or the other by deductive reasoning from our commitment to a written constitution.
41. No proponent of the argument from writtenness conceptualizes it in exacdy this way. But the tripartite structure elaborated in this Part is implicit in the writings of various originalists. Making it explicit facilitates analytic clarity. It also helps to distinguish the strongest version of the argument from weaker variants and thus to present the argument in its best possible light.
42. The classic statement is Alexander Hamilton's in Federalist 78: There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid. THE FEDERALIST NO. 78, at 465-466 (Aexander Hamilton) (Clinton Rossiter ed., 1961).
43. See, e.g., RAOUL BERGER, GOVERNMENT BY JUDICIARY 364 (1977);
44. ROBERT H. BORK, THE TEMPTING OF AMERICA 143 (1990);
45. WHITTINGTON, supra note 8, ch. 5;
46. Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 GEO. WASH. L. REV. 1127, 1136 (1998);
47. Jack N. Rakove, The Original Intention of Original Understanding, 13 CONST. COMMENT. 159, 161 (1996).
48. 16 JAMES MADISON, Remarks Before the House of Representatives: Jay's Treaty (Apr. 6, 1796), in THE PAPERS OF JAMES MADISON 290, 295-96 (J.C.A. Stagg et al. eds., 1989). The reliability of this speech as evidence of Madison's own original understanding has been questioned,
49. see Rakove, supra note 17, at 160-161, but it is offered here only as a representative statement of the view it expresses.
50. WHITTINGTON, supra note 8, at 56;
51. see also Balkin, Abortion and Original Meaning, supra note 8, at 304 ("We look to the original meaning of the words because if the meaning of the words changed over time, then the words will embrace different concepts than those who had the authority to create the text sought to refer to.").
52. See, e.g., U.S. CONST, art V ("[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate.").
53. See Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 230 (1980);
54. Michael J. Klarman, Antifidelity, 70 S. CAL. L. REV. 381, 382 (1997);
55. Adam M. Samaha, Dead Hand Arguments and Constitutional Interpretation, 108 COLUM. L. REV. 606, 614 (2008).
56. For a more opinionated take, see Andrew B. Coan, Talking Originalism, 2009 BYU L REV. 847;
57. Klarman, supra note 21, at 382;
58. and Samaha, supra note 21, at 609, 613-625
59. See, e.g., WHITTINGTON, supra note 8, at 196-208;
60. McConnell, supra note 17.
61. Keith Whittington makes an argument to this effect. See WHITTINGTON, supra note 8, at 156-57.
62. But see Coan, supra note 22, at 865.
63. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).
64. Barnett, supra note 8, at 654.
65. See ADAM TOMKINS, PUBLIC LAW 12-14 (2003).
66. Cf. WHITTINGTON, supra note 8, at 52 (contrasting the supposed certainty of written constitutions with the supposed uncertainty of the unwritten British Constitution);
67. Barnett, supra note 8, at 631 (analogizing the certainty-enhancing function of written constitutions to the certainty-enhancing function of written contracts).
68. See Richard A. Posner, The Supreme Court, 2004 Term - Foreword: A Political Court, 119 HARV. L. REV. 31, 45 (2005);
69. cf. Andrew B. Coan, Essay, Text as Truce: A Peace Proposal for the Supreme Court's Costly War over the Eleventh Amendment, 74 FORDHAM L. REV. 2511, 2512 (2006) (noting the appearance of political decisionmaking in disputes over the Eleventh Amendment's original meaning);
70. Richard Primus, Limits of Interpretivism, 32 HARV.J.L. & PUB. POL'Y 159, 171 (2009) (cataloging recent Supreme Court cases in which views on original meaning break down along apparendy political lines).
71. See, e.g., Thomas W. Merrill, Originalism, Stare Decisis and the Promotion of Judicial Restraint, 22 CONST. COMMENT. 271, 273 (2005) ("[A] strong theory of precedent... would promote judicial restraint").
72. See JOHN HART ELY, DEMOCRACY AND DISTRUST (1980) (arguing that the Supreme Court's primary role is to ensure the fair and smooth functioning of the political process).
73. See Letter from Oliver Wendell Holmes to Harold J. Laski (Oct 23, 1926) (writing that a legislative act should not be disturbed "unless it makes us puke"), in 2 HOLMES-LASKI LETTERS 887, 888 (Mark DeWolfe Howe ed., 1953). For an elaboration of this test in more traditionally judicial vernacular,
74. see Justice Holmes's celebrated dissent in Lochnerv. New York. 198 U.S. 45, 76 (1905) (Holmes,J., dissenting) (arguing that a law should not be overturned unless "a rational and fair man" would admit that it infringed "fundamental principles as they have been understood by the traditions of our people and our law").
75. See Coan, supra note 22, at 857-64;
76. see also Balkin, Abortion and Original Meaning, supra note 8, at 310 ("Constrainingjudges in a democracy is important But in practice most of that constraint does not come from theories of constitutional interpretation. It comes from institutional features of the political and legal system.").
77. For a fuller, but still summary, treatment of these objections, see Coan, supra note 22, at 865-869
78. WHITTINGTON, supra note 8, at 55.
79. Id. at 54.
80. Id. at 53.
81. Id. at 49.
82. Id.
83. Cf. David A Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 924 (1996) ("[O]nce a society develops political traditions, political actors can be more confident that their opponents, even if arguably departing from the text will operate within the traditions, or will be reined in by other forces in society if they do not do so.").
84. U.S. CONST, art. VI, cl. 2.
85. Id.
86. Id. pmbl.
87. Paulsen leans heavily on Saikrishna Prakash for this point. See Saikrishna B. Prakash, Unoriginalism's Law Without Meaning, 15 CONST. COMMENT. 529, 540-546 (1998) (book review).
88. SeePaulsen, supra note 8, at 868-69, 872-873
89. See id. at 858. Paulsen argues that [a] careful reading of the text of the Constitution ... shows that the Constitution does prescribe an interpretive methodology. That methodology is to read and apply the document's written words and phrases, taken in context, as they would have been understood by reasonably informed readers of such a document at the time they were written.
90. Id.
91. It is an interesting puzzle whether a constitutional text (or any other text) can ever authoritatively supply the methodology for its own interpretation. Imagine, for example, mat Aticle VI contained a fourth section explicidy instructing judges and other officials to interpret the document according to its original public meaning. Would this resolve all doubt? It would not (And not just because the new section would itself have to be interpreted.) We can presume that an explicidy worded instruction of this sort - read in isolation - would have the same meaning under any plausible contemporary interpretive approach. Nevertheless, a normative argument would still be required for adhering to this instruction in interpreting the rest of the Constitution. Of course, the instruction itself would raise the costs of applying a nonoriginalist interpretive approach to other provisions. If judges (and other officials) could ignore this language, would any constitutional provision be safe? But these costs could - at least in principle- be outweighed by the substantive unattractiveness of an originalist approach relative to plausible nonoriginalist alternatives (and to the alternative of scrapping the Constitution altogether). If an originalist approach were sufficiently unattractive substantively, but so was jettisoning the Constitution, the normatively best option might be for judges to ignore even an explicit instruction to be originalists and instead apply some other interpretive approach to me remainder of the constitutional text. It follows a fortiori that judges might be normatively justified in ignoring the implicit interpretive instructions Paulsen purports to find in Aticle VI, which, unlike an explicit instruction, simply disappear under a range of plausible nonoriginalist interpretive approaches. An important implication is that interpretive choice need not be all-or-nothing, pace many originalists.
92. See, e.g., WHITTINGTON, supra note 8, at 59 (making the all-or-nothing argument);
93. Barnett, supra note 8, at 635-636 (same). Both constitutional text and original meaning can be embraced in part or in whole, depending on the values that would be served thereby.
94. See Barnett, supra note 8, at 612-613 (noting that contradiction of doing so is merely apparent).
95. See H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885, 948 (1985) (arguing that the Founders themselves were not originalists in the intentionalist sense of originalism);
96. Richard A Posner, In Defense of Looseness: The Supreme Court and Gun Control, NEW REPUBLIC, Aug. 27, 2008, at 33 (arguing that the Framers never intended to bind future generations to original meaning).
97. Cf. Caleb Nelson, Originalism and Interpretive Conventions, 70 U. CHI. L. REV. 519, 548-549 (2003) (suggesting that most originalists would agree "the meaning that they are committed to enforcing emerges from the application to the Constitution's words of various legal and linguistic principles that reasonable members of the founding generation would have used to understand those words").
98. Paulsen, supra note 8, at 871.
99. See id. at 875-876
100. Barnett, supra note 8, at 636 (emphasis added).
101. Jack M. Balkin, Framework Originalism and the Living Constitution, 103 NW. U. L. REV. 549, 552 (2009);
102. accord Kesavan & Paulsen, supra note 8, at 1131 ("We therefore think that to avoid creeping or lurching anachronism infecting the interpretation of an aumoritative legal text, the proper approach must be one of 'originalist' textualism ....");
103. Paulsen, supra note 8, at 876 (The alternative to fixed time-point meaning is to license pure linguistic anachronism.").
104. U.S. CONST, art IV, §4.
105. Balkin, supra note 54, at 552;
106. see also Paulsen, supra note 8, at 877 (invoking the same example).
107. The inconsistency is that semantic drift and radical subjectivity cannot both be the only alternative to originalism.
108. LEWIS CARROLL, THROUGH THE LOOKING GLASS AND WHAT ALICE FOUND THERE 124 (MacMillan Co. 1928) (1898) (internal quotation marks omitted);
109. see also Paulsen, supra note 8, at 870 (invoking the Humpty Dumpty example).
110. Most of these view objectivity in general (including the objectivity of original meaning) as a sham. See, e.g., DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON 36-37 (1997) (discussing the view that "objectivity and neutrality are merely shams concealing a dominance game");
111. Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV. 1151, 1214 (1985) ("[Socially created] metaphors constructed the 'reality' that within the legal discourse was supposed to exist out there, in social relations themselves.").
112. WHITTINGTON, supra note 8, at 61;
113. see also Paulsen, supra note 8, at 871 ("[Nonoriginalism] severs interpretive premises and principles from the text being interpreted. This is a problem for an enterprise that is seeking to interpret the Constitution in order to apply it as exclusive authoritative, binding law. The more an interpretive approach is disconnected from the text, the more it is disconnected from the text's authority.").
114. What Henry Monaghan wrote three decades ago remains largely true today: "The authoritative status of the written constitution is ... an incontestable first principle for theorizing about American constitutional law." Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353, 383 (1981).
115. But see Grey, supra note 14, at 717 (arguing that the United States functionally has an unwritten constitution);
116. Young, supra note 14, at 411 (same). Still, originalist proponents of Branch Three ignore an important possibility: that commitment to a written constitution is nearly universal only because such commitment is perceived as consistent with a wide range of interpretive approaches. If originalists succeed in exploding this perception, the result may well be reduced - perhaps substantially reduced - support for written constitutionalism.
117. Cf. LOUIS MICHAEL SEIDMAN, OUR UNSETTLED CONSTITUTION 210-16 (2001) (identifying the distinctive genius of the U.S. Constitution as its ability to accommodate - even nurture - widely divergent views);
118. Todd E. Pettys, The Myth of the Written Constitution, 84 NOTRE DAME L. REV. 991, 1045-47 (2009) (describing the power of the idea of a written constitution to unify persons of widely divergent substantive views). Instead of prompting conversion to originalism, the argument from writtenness might serve in effect as a reductio demonstrating the absurdity of treating the constitutional text as binding law over time. This possibility would arise, however, only if originalists were correct that nonoriginalism and commitment to a written constitution are mutually exclusive. A Part II explains, they are not.
119. It is possible to imagine a more modest version of this claim, but on close examination, it is apparent why no prominent originalist has advocated it. This version would hold that, even if originalism is not the only way to make sense of our commitment to a written constitution, it is the best way in some relevant sense of "best." What that sense might be is unclear, however. If the point is that originalism is normatively best among the plausible contenders, this argument would appear to land originalists right back in the protracted normative debate from which the argument from writtenness was supposed to rescue them. Alternatively, originalism might be thought to best accord with some conceptual notion of writtenness, but if it is not the only way to make sense of our commitment to a written constitution, originalists would have to explain why the marginal advantage of originalism on this dimension outweighs the (potential) advantages of competing theories on other normative dimensions. This, too, would destroy the capacity of the argument from writtenness to function as a trump card.
120. Barnett, supra note 8, at 653-654
121. Athough conceived independendy, this argument owes a debt to the thoughtful discussion in Primus, supra note 10, at 178-79. Aside from its brevity, however, that discussion differs from this one in several important respects. First, Primus does not distinguish between Branch Three and other versions of the argument from writtenness. A Part I shows, those versions suffer from their own shortcomings, but the critique advanced in this Part applies only to Branch Three. Second, Primus simply assumes that the nonoriginalist approaches he discusses (some of which are also discussed in this Part) are meaningfully committed to a written constitution. In fact, the relationship between those approaches and the written constitution is both subtle and complex, as this Part explains at length. Neither the existence nor the nature of that relationship (nor the distinctness of these approaches from originalism) can be treated as self-evident. Third, Primus understands originalist arguments from writtenness as primarily focused on the nature of constitutionalism rather than the nature of writtenness. This conflates Branch One, which is focused on the purposes of constitutionalism, and Branch Three, which is very much focused on writtenness. A a result, Primus never undertakes the crucial task of explaining the consistency between a broad range of nonoriginalist approaches and commitment to a written constitution. That task is the central focus of this Part. None of this, it bears emphasis, is a knock on Primus, whose brief discussion of these issues makes no attempt to provide the kind of sustained critique this Aticle does.
122. Cf. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting) ("[I]n most matters it is more important that the applicable rule of law be settled than that it be settled right").
123. See generally THOMAS C. SCHELLING, THE STRATEGY OF CONFLICT 58-80 (paper-back ed. 1980).
124. David A. Strauss, Essay, Common Law, Common Ground, and Jefferson's Principle, 112 YALE L.J. 1717, 1733 (2003).
125. Id. at 1734.
126. U.S. CONST, art I, § 3 ("The Senate of the United States shall be composed of two Senators from each state ....").
127. Id. amend. VI.
128. See 372 U.S. 335, 339-341 (1963).
129. See Strauss, supra note 40, at 919-920 (discussing the right-to-counsel example).
130. Cf. Frederick Schauer, An Essay on Constitutional language, 29 UCLA L. REV. 797, 828 (1982) ("[W]e might do best to look at constitutional language as a frame without a picture, or, better yet, a blank canvas. We know when we have gone off the edge of the canvas even though the canvas itself gives us no guidance as to what to put on it." (footnote omitted)).
131. See Strauss, supra note 67, at 1745.
132. See supra text accompanying note 58.
133. Exacdy what these conventions are, where they come from, and how they interact are complicated and poorly understood questions. See Richard Primus, Constitutional Expectations, NEW REPUBLIC (forthcoming 2010) (offering a thoughtful preliminary take on these questions). But that they do in fact constrain the range of textual meanings recognized as plausible is demonstrated by the examples that follow in the main text
134. Cf Strauss, supra note 40, at 911-912 (discussing the role of background understandings in determining the conventionalist meaning of me constitutional text).
135. See U.S. CONST, art. I, §3.
136. Id. amend. VI.
137. See id. art II, §1, cl. 5 ("No Person except a natural born Citizen, or a citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President").
138. Compare Gabriel J. Chin, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship, 107 MICH. L. REV. FIRST IMPRESSIONS 1, 2 (2008),
139. with Stephen E. Sachs, Commentary, Why John McCain Was a Citizen at Birth, 107 MICH. L. REV. FIRST IMPRESSIONS 49, 49 (2008).
140. Schwarzenegger is a naturalized citizen. See Arnold Schwarzenegger, Arnold Schwarzenegger Recalls Lessons from 25 Years as a U.S. Citizen-Learn English, Participate in Politics, and Give Back, U.S. NEWS & WORLD REP., Sept 17, 2008, http:// www.usnews.com/articles/opinion/2008/09/17/arnold- schwarzenegger-recalls-lessons-from-25-years-as-a-us-citizen-learn-english- participate-in-politics-and-give-back.html.
141. See Strauss, supra note 67, at 1743-1744
142. More precisely, they are not arguments in which the writtenness of the Constitution - as opposed to the normative desirability of alternatives to originalism - is doing the relevant work.
143. On the importance of nonjudicial precedents in the development of constitutional law, see Berman, supra note 10, at 34-36;
144. Jacob E. Gersen & Eric A. Posner, Soft Law: Lessons from Congressional Practice, 61 STAN. L. REV. 573, 623 (2008);
145. and Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. PA. L. REV. 991, 999 (2008).
146. On the stabilizing effects of common law constitutional interpretation, see Thomas W. Merrill, Bork v. Burke, 19 HARV.J.L. & PUB. POL'Y 509, 512-13 (1996),
147. and Merrill, supra note 30, at 274-281
148. See Strauss, supra note 40, at 899 ("[I]t is no part of our practice ever to 'overrule' a textual provision.").
149. Id. at 892.
150. Id. at 895.
151. Others include linguistic change, academic commentary, political leadership, and social activism. Cf. id. at 911-912
152. See id. at 898;
153. Strauss, supra note 67, at 1750-1751
154. See Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 757-758 (1994) (noting the inconsistency between the warrant requirement and the constitutional text as it was traditionally understood).
155. See William A Fletcher, The Structure of Standing, 98 YALE LJ. 221, 224-25 (1988) (noting the historical novelty of the injury-in-fact rule as an interpretation of the Aticle III "case or controversy" requirement);
156. Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 168-97 (1992) (same).
157. See generally Vikram David Amar, Jury Service as Political Partkipation Akin to Voting, 80 CORNELL L. REV. 203, 204-205 (1995) (arguing that "jury service ... was conceived of as a political right" and therefore not covered by the Fourteenth Amendment at the time of its ratification).
158. In practice, mis diachronic stability probably also enhances the text's utility as a focal point for legal coordination. In theory, however, coordination merely requires a high degree of synchronic salience. A diachronically unstable text that remained highly salient in a synchronic sense would still be a valuable focal point.
159. Witness the gradual development of sex of crimination doctrine in Reed v. Reed, 404 U.S. 71, 74-77 (1971);
160. Frontiero v. Richardson, 411 U.S. 677, 682-88 (1973);
161. Craig v. Boren, 429 U.S. 190, 197-99 (1976);
162. and United States v. Virginia, 518 U.S. 515, 531-34 (1996).
163. Of course, the warrant requirement has been under steady assault for some time. See Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 733-34 (1999). But for now it survives,
164. see Arizona v. Gant, 129 S. Ct. 1710, 1721 (2009), and its survival for more than half a century almost certainly owes something to the appearance of the word "warrant" in the constitutional text
165. See Strauss, supra note 67, at 1725-1726
166. See Strauss, supra note 67, at 1726-32 (explaining that the text of the Constitution "plays essentially no operative role in deciding the most controversial constitutional questions," which are resolved primarily by analysis of precedent);
167. Strauss, supra note 40, at 885-86 (arguing that the common law, not the constitutional text, "provides the best way to understand the practices of American constitutional law");
168. David A. Strauss, The Irrelevance of Constitutional Amendments, 114 HARV. L. REV. 1457, 1504-05 (2001) (indicating that formal textual amendment plays only an incidental role in the evolution of the constitutional order);
169. see also Barry Friedman & Scott B. Smith, The Sedimentary Constitution, 147 U. PA. L. REV. 1, 33-36 (1998) (making a parallel point in developing their quite similar notion of a "sedimentary constitution").
170. See Strauss, supra note 67, at 1721-22 (invoking Thomas Jefferson's argument that one generation has no right to bind another as a challenge to the idea of written constitutionalism);
171. Strauss, supra note 40, at 880, 904, 917 ("Following a written constitution means accepting the judgments of people who lived centuries ago in a society that was very different from ours.");
172. Strauss, supra note 97, at 1464-1465 (questioning the conception of a written constitutional amendment as a "decisive act by the people").
173. See Strauss, supra note 67, at 1731-40 (maintaining that all constitutional principles must at least superficially flow from the text of the Constitution);
174. Strauss, supra note 40, at 906-924 ("[I]n some way or another, however creative the interpretation, the text must be respected.").
175. Cf. Strauss, supra note 40, at 890 (contrasting commonalities between the U.S. Constitution and the unwritten British Constitution with differences between the written constitutions of the United States and the written constitutions of other nations);
176. id. ("The common law approach to constitutional interpretation ... reduces (although it does not eliminate) the distinction between written and unwritten constitutions ....").
177. Balkin, supra note 54, at 549-550
178. Id. at 550.
179. There is a parallel to the Ship of Theseus paradox, which poses the question whether a ship whose planks have all been replaced (in some versions multiple times) can remain the same ship.
180. See 1 PLUTARCH, The Life of Theseus, in LIVES 55 (John Dryden trans., Edinburgh, A Donaldson & J. Reid 1763).
181. For practical purposes, however, it hardly matters whether the rebuilt ship is "the same" in some rarefied philosophical sense. What matters is that it floats. Similarly, it is for practical purposes irrelevant whether an evolving constitution is the "same" constitution in some philosophical sense. What matters is that the written document plays an important functional rolechanneling, facilitating, constituting-that does not depend on a wholly, or even a partially, originalist approach. Cf. Schauer, supra note 73, at 829 ("With constitutional language, so long as the enterprise stays afloat it is no objection that the current conception bears no close relation to the ordinary language meaning of the text If we have moved in small steps from the original text, the enterprise stays afloat" (footnote omitted)).
182. See Balkin, supra note 54, at 598. Despite his professed conversion to originalism, Balkin's recent series of articles on the subject seems far more concerned withand is far more successful at- demonstrating the compatibility of originalism and living constitutionalism than in making an affirmative case for the former. This compatibility thesis is an important contribution, though one with notable antecedents.
183. See Ronald Dworkin, Comment, in A MATTER OF INTERPRETATION 115 (Amy Gutmann ed., 1997);
184. Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165, 1170-73 (1993). Happily, it is a contribution wholly unaffected by the failure of the argument from writtenness.
185. See Balkin, Abortion and Original Meaning, supra note 8, at 304-05;
186. Balkin, Original Meaning and Constitutional Redemption, supra note 8, at 491-92.
187. Cf. LEONARD W. LEVY, LEGACY OF SUPPRESSION: FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY 182-236 (1960) (defending this interpretation).
188. Of course, Levy later retracted this view under heavy criticism, see LEONARD W. LEVY, EMERGENCE OF A FREE PRESS, at i-xix (1985), but that does not affect its illustrative force.
189. U.S. CONST, art. III, § 2.
190. See Fletcher, supra note 92, at 224-25 (making this claim);
191. Sunstein, supra note 92, at 168-69 (same).
192. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
193. Certainly, some versions of originalism might allow more room for radical change. See generally Balkin, Abortion and Original Meaning supra note 8
194. (defending Roe v. Wade, 410 U.S. 113 (1973), by reference to original meaning).
195. See, e.g, WHITTINGTON, supra note 8, at 112 ("Abandoning originalism allows the judiciary to impose value choices that have not been authorized by democratic action.").
196. See, e.g, Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION, supra note 104, at 3, 40-41 ("A society that adopts a bill of rights is skeptical that 'evolving standards of decency' always 'mark progress,' and that societies always 'mature,' as opposed to rot").
197. Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. PA. L. REV. 297, 299 (2001) (emphasis omitted).
198. Franklin D. Roosevelt, Address on Constitution Day (Sept. 17, 1937),
199. in THE TWO FACES OF LIBERALISM: HOW THE HOOVER-ROOSEVELT DEBATE SHAPES THE 21ST CENTURY 357, 360 (Gordon Lloyd ed., 2007).
200. Siegel, supra note 113, at 314-15.
201. Larry D. Kramer, Popular Constitutionalism, Circa 2004, 92 CAL. L. REV. 959 981-82 (2004).
202. See, e.g., Siegel, supra note 113, at 314 ("Outside the courthouse, the Constitution's text plays a significant role in eliciting and focusing normative disputes among Americans about women's rights under the Constitution-a dynamic that serves to communicate these newly crystallizing understandings and expectations about women's rights to judges interpreting the Constitution inside the courthouse door.");
203. Reva B. Siegel, Nicholas deB. Katzenbach Professor of Law and Professor of Am. Studies, Yale Law Sch., 2005-06 Brennan Center Symposium Lecture: Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de Facto ERA, as reprinted in 94 CAL. L. REV. 1323, 1354-55 (2006)
204. [hereinafter Siegel, Constitutional Culture] ("[P]olitical- abolitionists and suffragists endeavored to pursue change by appeal to the Constitution. To achieve change, [they] repudiated officially sanctioned accounts of the Constitution's meaning and sought community recognition of new accounts of the Constitution's meaning.").
205. Siegel, Constitutional Culture, supra note 117, at 1350.
206. Originalism may itself be understood as an attempt to make such a case. See Jamal Greene, Selling Originalism, 97 GEO. L.J. 657, 708 (2009);
207. Robert Post & Reva Siegel, Originalism as a Political Practice: The Right's Living Constitution, 75 FORDHAM L. REV. 545, 548 (2006).
208. Siegel, Constitutional Culture, supra note 117, at 1327;
209. see also id. at 1350 ("Perpetual contest about the Constitution's past and future dynamically sustains its democratic authority.");
210. SEIDMAN, supra note 61, at 8 ("Unsettlement theory differs from its rivals by making the paradoxical claim that constitutional law can help build such a community by creating, rather than settling, political conflict").
211. WHITTINGTON, supra note 8, at 61 (emphasis added).
212. Id. at 78.
213. See supra subsection I.A.1.
214. See WHITTINGTON, supra note 8, at 56, 79.
215. See Balkin, supra note 54, at 569-71 (discussing the several ways that courts "engage in constitutional construction," such as "rationaliz[ing] new constitutional constructions by the political branches branches creating new doctrines" and "cooperat[ing] with me dominant forces in national politics by policing and disciplining those who do not share the dominant coalition's values").
216. Id. at 552.
217. To confirm this, one has only to thumb through any randomly selected volume of the U.S. Reports. Arguments from text, original understanding, history, and precedent are ubiquitous in constitutional cases.
218. See Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1236-37 (1987);
219. see also Strauss, supra note 40, at 888.
220. See Fallon, supra note 128, at 1195 ("The text, and its plain language, are taken for granted. Where the text speaks clearly and unambiguously ... its plain meaning is dispositive.").
221. See, e.g., id. at 1195.
222. See supra Section I.I.A.
223. Cf. Michael J. Perry, The Authority of Text, Tradition, and Reason: A Theory of Constitutional "Interpretation," 58 S. CAL. L. REV. 551, 591 (1985) ("[T]he text-assymbol... has served us well as a focal occasion for remembering and then responding to the central, constitutive aspirations of the tradition....The text-as-symbol should be authoritative." (emphasis omitted)).
224. See PHILIP BOBBITT, CONSTITUTIONAL FATE 237-38 (1982) ("[C]onstitutional law needs no 'foundation.'... We do not have a fundamental set of axioms that legitimize judicial review. We have a Constitution, a participatory Constitution, that accomplishes this legitimation.");
225. Fallon, supra note 128, at 1236-37, 1236 n.219 (making a similar claim).
226. See supra Section I.C.
227. Primus, supra note 10, at 167.
228. Id. at 175-76.
229. Strauss, supra note 67, at 1734-35.
230. Cf. Powell, supra note 49, at 943-44.
231. See Strauss, supra note 40, at 899.
232. Varun Gauri, Social Rights and Economics: Claims to Health Care and Education in Developing Countries, 32 WORLD DEV. 465, 465 (2004).
233. See Coan, supra note 22, at 848-57 (discussing extreme age and difficulty of amendment as catalysts for debates in American constitutional theory);
234. see also Primus, supra note 10, at 208 (discussing the democratic appeal of originalism as a method for interpreting recently adopted constitutional provisions).
235. See, e.g, Roper v. Simmons, 543 U.S. 551, 626-28 (2005) (Scalia, J., dissenting) (criticizing the Court's reliance on foreign law);
236. S. Res. 92, 109th Cong. (2005) (declaring that courts should rely on foreign materials only when they "inform an understanding of the original meaning of the Constitution");
237. H.R. Res. 97, 109th Cong. (2005) (same);
238. Nicholas Quinn Rosenkranz, An American Amendment, 32 HARV. J.L. & PUB. POL'Y 475, 475-79 (2009) (asserting that foreign law has no bearing on the proper interpretation of the Constitution);
239. Nicholas Quinn Rosenkranz, Condorcet and the Constitution: A Response to The Law of Other States, 59 STAN. L. REV. 1281, 1301 (2007) (arguing that "most questions of law and policy are inherently local" and so foreign policy choices are irrelevant to American constitutional law).
240. Peter W. Hogg, Canada: From Privy Council to Supreme Court, in INTERPRETING CONSTITUTIONS 55, 83 (Jeffrey Goldsworthy ed., 2006).
241. Id. at 87.
242. See [1985] 2 S.C.R. 486, 504-09, 530-32 (Can.).
243. Part I of the Constitution Act, 1982, § 7, being Schedule B to the Canada Act 1982, ch. 11 (U.K.), as reprinted in R.S.C., No. 44 (Appendix II 1985).
244. [1985] 2 S.C.R. at 504-05.
245. Id. at 509.
246. See Hogg, supra note 143, at 84-93.
247. See Donald P. Kommers, Germany: Balancing Rights and Duties, in INTERPRETING CONSTITUTIONS, supra note 143, at 161, 190.
248. Id. at 179-83.
249. See generally RONALD DWORKIN, LAW'S EMPIRE 216 (1986) (arguing that a community that considers "integrity to be central to politics ... provides a better defense of political legitimacy than the other models").
250. Kommers, supra note 150, at 200.
251. Id.
252. See id. at 182-83, 200.
253. See id. at 198.
254. See Gandhi v. Union of India, (1978) 2 S.C.R. 621, 623.
255. People's Union for Civil Liberties v. Union of India, (2003) 2 S.C.R. 1136, 1176
256. , quoted in S.P. Sathe, India: From Positivism to Structuralism, in INTERPRETING CONSTITUTIONS, supra note 143, at 215, 253.
257. Id.
258. See Sathe, supra note 158, at 252-53 (listing also rights to shelter, sufficient food, and health).
259. See id. (explaining the history of the basic structure doctrine in India and its continuing importance).
260. Thus cornered, proponents of the argument from writtenness might contest the nonoriginalist classification of the foreign practices surveyed here. The difficulty of defining originalism gives this line of defense at least a patina of plausibility. That patina is burnished by the frustrating tendency of the comparative literature to equate originalism with a jurisprudence of original intent (as opposed to original meaning or understanding). Perhaps Canadian, German, and Indian interpretive practices are inconsistent with the original intent (or expected application) of their respective constitutions but nevertheless consistent with original meaning defined at a high level of abstraction (which at least some American originalists regard as the best understanding of originalism). This seems exceedingly unlikely. Even if it were true, however, it would be so purely as a matter of historical contingency, not as a matter of conceptual necessity. The discussion in the main text shows that Canadian, German, and Indian interpretive practices could make perfectly coherent sense of their written constitutions even without being consistent with original meaning in this sense. (Indeed, any such consistency would have to be essentially an accident, given the avowedly nonoriginalist rhetoric that prevails in their interpretive practices.) That is enough to refute the originalist claim that originalism follows from commitment to a written constitution.
261. it is worth emphasizing that nothing in mis Part eliminates the possibility of pragmatic arguments for identifying the written constitutional text with its original meaning and nonoriginalist approaches with an unwritten constitution or supplementation. Thomas Grey has offered a very interesting argument along these lines.
262. See Thomas C. Grey, The Uses of an Unwritten Constitution, 64 CHI.-KENT L. REV. 211 (1988). The gist is that we should think of judicial creativity as supplementing the written constitution rather than interpreting its open-ended provisions because, where judges are exercising substantial discretionary power, that fact should be kept clearly in view.
263. See id. at 233-38. We might think of Branch One as an argument of this sort, urging that identification of nonoriginalist approaches with the written Constitution would eliminate its ability to promote the values of popular sovereignty and constraint The important point about Grey's argument and this reformulation of Branch One is that they are quintessentially and overtly dependent on external northative considerations. Rather than arguing that a particular conception of constitutional interpretation follows from the very nature of writtenness, they argue that a particular conception of writtenness is pragthatically useful in advancing the northative goals of an interpretive approach, which they recognize must be defended on the merits.
264. Many proponents of this argument are original-intent, rather than originalpublic-meaning, originalists. But for present purposes, the distinction is imthaterial. Both versions of the argument have the same essential form and suffer from the same defects. For the sake of simplicity, this Part uses the term original meaning to encompass bom original public meaning and original intent
265. See, e.g., Stanley Fish, There Is No Textualist Position, 42 SAN DIEGO L. REV. 629, 635 (2005);
266. Lawson & Seidman, supra note 8, at 71;
267. Prakash, supra note 11;
268. Prakash, supra note 12, at 434-37;
269. Saikrishna Prakash, Radicals in Tweed Jackets: Why Extreme LeftWing Law Professors Are Wrong for America, 106 COLUM. L. REV. 2207, 2223-31 (2006) (book review);
270. Prakash, supra note 44, at 540-46.
271. Stevenson, supra note 13.
272. The discussion in this Part bears some resemblance to an argument of Frederick Schauer's. See Frederick Schauer, The Social Construction of the Concept of Law: A Reply to Julie Dickson, 25 OXFORD J. LEGAL STUD. 493 (2005). Schauer observes that conceptual analysis of socially constructed practices like law can come in two forms: purely descriptive (or explanatory) and purely normative. The former is concerned only with describing a particular concept as it is presently understood by a relevant community of practitioners. The latter is concerned with the concept that it would be good for us to adopt (or keep), whether it is the concept we have now or not. A such, this form of conceptual analysis must be-and often is-defended through normative argument. The example Schauer discusses is H.L.A. Hart's famous defense of legal positivism on the ground that it promotes resistance to tyrannical government.
273. See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 615-21 (1958). Recast in Schauer's terms, the argument of this Part is that originalist analyses of interpretation and binding law are better understood as normative, rather than descriptive, conceptual analysis. But perhaps out of confusion on this point or perhaps out of rhetorical strategy, their proponents generally refuse to supply the normative arguments necessary to make them persuasive as such. Or if they do supply normative arguments for originalism, they fail to perceive the necessary connection between those arguments and their conceptual claims about interpretation and binding law.
274. Cf. Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison ("The criteria that govern people's use of language are simply the criteria generally relied on in their language community for the use of those terms....The correct criteria are those that people who think they understand the concept or term generally share...."),
275. in HART'S POSTSCRIPT 1, 16-17 (Jules Coleman ed., 2001).
276. Timothy A.O. Endicott, Putting Interpretation in Its Place, 13 LAW & PHIL. 451, 457 (1994) ;
277. see also JOSEPH RAZ, BETWEEN AUTHORITY AND INTERPRETATION 241-65 (2009).
278. Even if the originalist account tracked prevailing practice more closely, it is not clear what significance that would hold for adherents of competing views. So long as those views are not internally contradictory or otherwise logically untenable, the fact that more practitioners held the originalist view (or that the originalist view better tied together the intuitions held by most practitioners) would provide no reason to abandon nonoriginalist views. To be sure, most adherents of such views are committed to interpreting the Constitution as binding law. But they are committed to their understanding of these concepts, not the originalist understanding. A such, that commitment could not, standing alone, provide a compelling reason to embrace the originalist view, even if originalists were clearly in the majority. Of course, the same goes for me actual world in which originalists are almost certainly in the minority. Nothing about their commitment to interpreting the Constitution as binding law compels them to embrace a nonoriginalist approach to these concepts simply because that is the dominant form of social practice. The nonoriginalist approach is not the understanding of interpretation or binding law to which they are committed.
279. Most colorful among them is Justice Scalia: It would be hard to count on the fingers of both hands and the toes of both feet yea, even on the hairs of one's youthful head, the opinions that have in fact been rendered not on the basis of what the Constitution originally meant, but on the basis of what the judges currently thought it desirable for it to mean. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 852 (1989).
280. Stanley Fish, Interpretation Is All There Is: A Critical Analysis of Aharon Barak's Purposive Interpretation in Law, 29 CARDOZO L. REV. 1109, 1112 (2008).
281. Id. at 1133.
282. Lawrence Solum seems to think that many nonoriginalist theories of interpretation do in fact make this confused claim. See Solum, supra note 9, at 65 ("The power of the Supreme Court to create legal fictions or tell lies about the meaning of the Constitution cannot change the semantic content of the constitutional text. But in the case of constitutional meaning, lawyers and constitutional theorists sometimes confuse the semantic content of a text and the effective legal meaning of the text");
283. Posting of Lawrence Solum to Legal Theory Blog, Stein on the Domestic Violence Clause & the Fixation of Original Meaning (Reposted, with Comments), http://lsolum.typepad.com/legaltheory/2009/05/stem-on-the-domestic- violence-clause-the-fixation-of-originalmeaning.html (May 29, 2009) ("Theories of linguistic meanings are positive theoriesthey are theories about how language works. Arguing for a theory of meaning on the grounds that it produces normatively attractive results in Constitutional cases involves an enormous conceptual error-like arguing that greenhouse gases do not cause global warming because the world would be a better place if physics were different"). But the confusion disappears if these nonoriginalist theories are understood as normative accounts of how judges and other interpreters should attribute legal (rather than linguistic) meaning to the constitutional text. To be sure, most nonoriginalists would be unwilling to concede that their theories permit legal meaning to deviate from or override linguistic meaning. To this extent, they might be thought to contest, at least implicitly, Solum's descriptive claim that original public meaning is the Constitution's one true linguistic meaning (and to do so on normative, rather than descriptive, grounds). But this is essentially a terminological disagreement Nonoriginalists are happy to concede that their approach permits interpreters to depart from-indeed to contravene-original meaning. That, after all, is what makes them nonoriginalists. Their claim to honor the text's linguistic meaning is a claim to honor other meanings, such as the plausible range of meanings present-day Americans would understand its words to bear. Whether or not these represent linguistic meanings in the technical philosophical sense Solum is concerned with, they are plainly an intelligible object of inquiry.
284. See supra Sections I.C, II.A. The important question is a normative one: whether these meanings, or original meaning, ought to be of overriding interest to interpreters. Of course, that is the same question originalists and nonoriginalists have always understood themselves to be debating. Solum's heroic efforts to identify originalism with interpretation and binding law (carefully, openly defined as searching for and submitting to linguistic-which is to say original public-meaning of the text) change nothing.
285. See Berman, supra note 10, at 22 (arguing that the term "originalism" should be reserved for theories holding that interpreters must follow original meaning whenever it is satisfactorily discernible).
286. The rider is susceptible of one other arguably descriptive formulationnamely, that nonoriginalist conceptions of interpretation and binding law are somehow logically or conceptually impossible, leaving originalist conceptions as the only available candidates. Lawrence Solum seems to take something like this view when he argues that the Constitution's linguistic meaning has to be original public meaning because the fixation of meaning at the time of utterance is logically necessary for written communication over time.
287. See Solum, supra note 9, at 66. But this argument assumes its conclusion. Whether and to what extent communication should be the goal of constitutional interpretation- in the particular sense of receiving a message conveyed by specific persons at some prior point in time-is exactly the issue in dispute between originalists and nonoriginalists. If the constitutional text functions (or ought to function) instead (or also) as a conventionalist focal point or a medium for popular constitutionalist discourse, communication (from the Framers and Ratifiers to contemporary interpreters) is not the operative issue. Solum's argument describes what logically must be the case only on the assumption that the activity he is describing has a contested purpose or function. By taking sides in that contest, he gives up describing the concept as it is- i.e., vague or ambiguous, and hence contested- and heads off on a frolic of his own. Cf. Raz, supra note 168, at 26. A Joseph Raz has cautioned, Theoretical explanations ... tend to be more precise than the contours of the vague concept would allow, were one to be true to them.... ... [But] [t]o succeed in explaining our own self-understanding through the explanation of some of our concepts requires explaining them as they are.... This means that the reduction in vagueness can only be limited, or the explanation will not be true to the concept explained.
288. Id.
289. Stevenson, supra note 13, at 331.
290. ROBERT J. GRIFFIN, WORDSWORTH'S POPE 144 (1996). Samuel Johnson famously anticipated this criticism and offered a typically pithy retort: "If Pope be not a poet, where is poetry to be found?" 4
291. SAMUEL JOHNSON, Pope, in THE LIVES OF THE MOST EMINENT ENGLISH POETS; WITH CRITICAL OBSERVATIONS ON THEIR WORKS 1, 79-80 (Roger Lonsdale ed., Oxford Univ. Press 2006) (1781).
292. This is a gross oversimplification but one that suffices for present purposes.
293. Stevenson, supra note 13, at 333.
294. Although often used interchangeably in everyday speech, vagueness and ambiguity have importantly distinct meanings in the philosophy of language. See, e.g., TIMOTHY A.O. ENDICOTT, VAGUENESS IN LAW 54 (2000) (defining a vague word as one with one meaning whose boundaries are unclear and an ambiguous word as one with more than one meaning where it is unclear which is being used);
295. Roy Sorensen, Vagueness, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. ZaIta ed., Spring 2009 ed.), http://plato.stanford.edu/entries/ vagueness (same).
296. Stevenson, supra note 13, at 332-33.
297. See RENÉ DESCARTES, MEDITATIONS ON FIRST PHILOSOPHY 50-62 (John Cottingham trans., Cambridge Univ. Press 1986) (1641).
298. See generally FRIEDRICH WILHELM NIETZSCHE, THE BIRTH OF TRAGEDY AND OTHER WRITINGS (Raymond Geuss & Ronald Speirs eds., Ronald Speirs trans., Cambridge Univ. Press 1999) (1872).
299. See supra Section II.A.
300. A anecdotal evidence, consider the centrality of this idea in Justice Sonia Sotomayor's opening statement at her confirmation hearings. See The Nomination of Sonia Solomayor to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. (2009) (statement of Sotomayor.J.), available at http://judiciary.senate.gov/ hearings/testimony.cfm?id=3959&wit-id=8102 ("The task of a judge is not to make the law-it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms ....").
301. See supra notes 60 and 169 and accompanying text.
302. But cf. WILLIAM BLAKE, Jerusalem: The Emanation of the Giant Albion ("Poetry Fetter'd, Fetters the Human Racel Nations are Destroy'd, or Flourish, in proportion as Their Poetry Painting and Music, are Destroy'd or Flourish!"),
303. in THE COMPLETE POETRY AND PROSE OF WILLIAM BLAKE 144, 146 (David V. Erdman ed., Univ. of Cal. Press 2008) (1804).
304. This may be as good a place as any to address the peculiar but insistent originalist claim that interpretation (defined as the search for original meaning) necessarily precedes evaluation. See Gary Lawson, On Reading Recipes. .. and Constitutions, 85 GEO. L.J. 1823, 1828 (1997) ("Interpretation must precede evaluation, not vice versa.");
305. Paulsen, supra note 8, at 911 (same);
306. Prakash, supra note 165, at 2224 (same). This claim is stated as a necessary conceptual truth about interpretation, and, if in fact it is such a truth, it may show that contemporary nonoriginalists are more confused about the distinction drawn by the rider than I have allowed. The claim is not, however, a necessary truth, for at least two reasons. First, even if interpretation of a written text must begin by identifying some finite set of meanings associated with the text, there is no reason to think that this set must be limited to the text's original meaning. The reasons for this have already been discussed at length and need not be revisited. Second, there is no reason that the identification of which meanings will count as associated with the text cannot depend in part on evaluative considerations-either at the wholesale level of choosing a theory of interpretation or the retail level of interpreting a particular textual provision. Interpretation is a purposive human practice. It is perfectly natural-indeed, virtually inevitable-that its contours will be shaped by the ends for which it is pursued.
307. See, e.g., WHITTINGTON, supra note 8, at 49 (identifying this sort of argument as question begging).
308. See generally JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 19 (Wilfrid E. Rumble ed., Cambridge Univ. Press 1995) (1832).
309. See Frederick Schauer, Was Austin Right After All?: On the Role of Sanctions in a Theory of Law, 22 RATIO JURIS (forthcoming 2010) (manuscript at 6), available at http://ssrn.com/abstract=1403269 ("[S]overeignty [is] simply an empirical social or political fact, and Austin [] ... understood the legal system as one in which the subjects had developed a habit of obedience to the commands of the sovereign ....").
310. H.L.A. HART, THE CONCEPT OF LAW 77 (2d ed. 1994);
311. see also Richard H. Fallon, Jr., How to Choose a Constitutional Theory, 87 CAL. L. REV. 535, 547 (1999) ("[T]he legal status of the Constitution does not depend on the 'command' of the Framers or ratifiers that we, the people of today, act in accordance with the Constitution's dictates....Rather, the status of the Constitution as law depends on contemporary practices accepting it as such.").
312. See Strauss, supra note 67, at 1749-50 (demonstrating the inconsistency of the Austinian command theory with a preponderance of American constitutional practice);
313. Strauss, supra note 40, at 887-88 (same);
314. Strauss, supra note 97, at 1464-65 (same).
315. If anything, the consensus view is the contrary. See Schauer, supra note 192 (manuscript at 1) ("Jurisprudence contains few axioms, but one of them may be that H.L.A Hart's critique of John Austin's brand of legal positivism was conclusive.... Hart is widely understood in modern jurisprudential debate to have knocked Austin out of the ring.").
316. See supra subsection I.A.2 and text accompanying notes 73-76.
317. See supra notes 61 and 169 and accompanying text.
318. But cf. RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION (2004) (offering a consequentialist defense of originalism);
319. John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution, 98 GEO. L.J. (forthcoming 2010), available at http://ssrn.com/ abstract=1109247 (same).
320. See, e.g., Barnett, supra note 8, at 636 (dismissing popular sovereignty and ruleof-law defenses of originalism as inadequate);
321. John O. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 101 Nw. U. L. REV. 383, 383 (2007) (similar).
322. See District of Columbia v. Heller, 128 S. Ct 2783 (2008);
323. Coan, supra note 22, at 847-48 (noting that all nine Justices signed on to predominantly originalist opinions in Heller);
324. Randy E. Barnett, Opinion, News Flash: The Constitution Means What It Says, WALL ST. J., June 27, 2008, at A13 (describing the Heller majority opinion as "the finest example of what is now called 'original public meaning'jurisprudence ever adopted by the Supreme Court").
325. This phrase, though not this particular application, is Lawrence Friedman's. See Lawrence M. Friedman, American Legal History: Past and Present, 34 J. LEGAL EDUC. 563, 576 (1984) ("[Constitutional history] is still locked in the castle of conceptualism, guarded by fire-breathing dragons.").
326. Of course, there are important exceptions, far too numerous to list Among contemporary theorists, Adrian Vermeule and Barry Friedman deserve particular mention.
327. For an underappreciated clarion call to this effect, see Barry Friedman, The Importance of Being Positive: The Nature and Function of Judicial Review, 72 U. CIN. L. REV. 1257 (2004).
328. This is especially true of the argument from constraint but also applies to the argument from popular sovereignty. A to popular sovereignty: what sort of constraints would original meaning place on contemporary majorities? How far would nonoriginalist decisions depart from the durable views of contemporary majorities? To what extent do any such views exist? And if they do not exist in meaningful numbers today, what is the likelihood that they existed at the Founding? To what extent do contemporary Americans identify themselves as members of a temporally extended American people? Is an originalist interpretive approach necessary-as a practical matter-to preserve the efficacy of future acts of popular sovereignty (either through the legislative process or constitutional amendment)? A to constraint can any interpretive theory meaningfully constrain the decisions of individual judges? What about the decisions of a large, diverse, and politically appointed judiciary? How does originalism compare in this respect to other plausible alternatives? How does it compare with respect to practical consequences for the economy, foreign policy, and civil rights?
329. See ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY 3, 9 (2006) (making a similar point about American legal theory generally).
330. See, e.g., NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY 53, 98, 123 (1994);
331. Friedman, supra note 203;
332. Richard A Posner, Against Constitutional Theory, 73 N.Y.U. L. REV. 1, 3 (1998);
333. Cass R. Sunstein, Must Formalism Be Defended Empirically?, 66 U. CHI. L. REV. 636, 642 (1999).