Monday, October 22, 2007

Dumbledore and Stanley Fish

Over on FindLaw's Writ today I have a column called Harry Potter and the Framers' Intent, which uses the revelation by author J.K. Rowling that her fictional wizard Albus Dumbledore is gay as the launching pad for a discussion of the relation between an author's intentions and the meaning of her text. It will come as no surprise to readers of my academic work that I express disagreement with the view that the intentions of the Constitution's authors control its later meaning.

Here I want to suggest a re-framing of the debate about original understanding. In recent years, Stanley Fish has been arguing (for example, here) that interpretation of texts necessarily involves a search for the author's meaning. I think Fish is wrong about this point but I won't explain why I think so here. Instead I want to suggest that we can accept much of Fish's claim and still think that what is sometimes called the "living Constitution" is superior to originalism.

In my column, I argue that in light of the dead hand problem, interpreting the Constitution in accordance with modern understandings gives the process greater legitimacy than interpreting it in accordance with the framers' intent or the original public meaning. We can and should regard contemporary Americans as the authors of the Constitution, not just johnny-come-lately readers. If the Constitution derives its current legitimacy from current tacit consent, then the intentions of contemporary readers matter--not just as readers but as de facto writers. Or, if that's too metaphorical, we could easily say that the relevant question is what intention would contemporary readers of the Constitution attribute to the authors of the document, regardless of what the actual intention of the authors and ratifiers was.


Sobek said...

"If the Constitution derives its current legitimacy from current tacit consent, then the intentions of contemporary readers matter--not just as readers but as de facto writers."

The intentions of the people, as determined by whom? A few posts down, in an interesting debate about the Ninth Amendment, someone (I think egarber) pointed out that the courts should be more inclined to protect the rights of the minority rather than the will of the majority -- but if the Constitution is to be interpreted as the will of "the people," that necessarily suggests a majoritarian approach. If "the people" want Christmas trees in airports (for example), then the rights of non-Christians (a decided minority in this county) are irrelevant and no basis for a Court's order to remove the trees.

And consider Roe v. Wade -- it cannot plausibly be argued that
"the people" have any intent whatsoever with respect to abortion. They are about evenly divided on perhaps the most contentious issue of the day.

If the will of the people is the most important determinant of the meaning of the Constitution, the President should appoint pollsters, not judges.

Michael C. Dorf said...

Sobek's point is a standard one, which is why in the column I say that my argument here is a negative one---it shows what's wrong with originalism---not a positive one. I say that concerns of just this sort might lead courts to take a go-slow approach to discerning contemporary understandings.

Derek said...

I think it's a mistake to completely ignore intentions when interpreting literature. But it's equally wrongheaded to say that an author can manipulate the meaning of her text, in the way Rowling purports to do, simply by announcing her intentions to the public.

I prefer a middle way, sometimes called hypothetical intentionalism, where the meaning of a work of fiction is conceptually tied to what the intended, typical, or ideal reader (depending on one's favorite formulation) would be epistemically justified in believing the text to mean. Cashing this definition out is tricky work, but the point is that in determining the meaning of a book in particular instances we generally consider what we think the author intended by her words, and to that extent intentions are relevant, although not determinative. But the intentions we are most justified in attributing to an author might very well come apart from her actual intentions and, in those instances, I think it's a mistake to give the author's actual intentions any interpretational weight.

With respect to Constitutional interpretation, hypothetical intentionalism wouldn't necessarily translate into originalism or even hypothetical originalism because we might very well be justified in believing the framers intended their words to be read not just by 18th century Americans, but by all Americans to come.

Derek said...

Oh, I meant to say that I take this to be somewhat similar to the approach you favor...

Sobek said...

"...which is why in the column I say that my argument here is a negative one---it shows what's wrong with originalism---not a positive one..."

I understand the argument that originalism is at best an imperfect approach to construing the Constitution. It just happens to be the best one available. If you abandon it, there is literally nothing but an individual judge's sense of what "the people" want to guide interpretation.

This has proven the case prominently with the death penalty, which was nearly abolished under the incredibly mistaken assuption that modern society no longer approves of capital punishment. It was intentionally flaunted in Roe v. Wade, which struck down abortion laws in the majority of American jurisdictions (so much for the will of the people).

And the justices most likely to disparage an originalist approach are the least likely to prefer anything like a "go-slow approach." According to The Brethren, the only reason Justice Brennan didn't personally enact the Equal Rights Amendment was because he couldn't get the votes -- not because of any sense of judicial restraint. Justice Ginsburg did the same thing in the VMI case. Roe v. Wade was an abrupt constitutional upheaval. The Warren Court revolutionized criminal procedure as quickly as it could get the cases, without even a pretention of going slow.

When Justice Breyer complained at the end of last term that "It is not often in the law that so few have so quickly changed so much," it is clear that he doesn't object so much to the changing, as that the changes are against his preferred policy.

Caleb said...

While I tend to favour the approach Mike mentioned in the post (after all, how can a constitution truly purport to control the public democratically without at least the tacit consent of the people controlled), I sometimes wonder if there is an argument to be made for (for lack of a better term) "sliding originalism".

The framers of the constitution wrote in a particular time and era, and took a position relative to the social norms and understandings of that era. In order to understand their "intent" relative to that era, we should measure where they went further that current social norms would have gone, where they merely echoed the views of their contemporaries, and where they were (possibly) more conservative than some of their contemporaries. Judges who are trying to interpret the constitution today should look to those choices. Where the constitution of 1789(?) was progressive, they should interpret the current rights more progressively than social norms would dictate, where the founders were more conservative, they should echo that.

I guess the heart of the argument for this type of interpretation would be that the framers instituted a government that was in a certain relationship to the society of their day, in order to remain true to their original intentions, the government should remain in that same relationship. It might make for some fun constitutional interpretation.

Sobek said...

"...after all, how can a constitution truly purport to control the public democratically without at least the tacit consent of the people controlled..."

An excellent question, and one that is entirely unanswered by the "living, breathing" approach. Indeed, to the extent that the Court functions as a counter-majoritarian check on tyranny by the majority (an argument that has been advanced by commenters on this blog), that function is inherently at odds with the consent of the governed. It is an institutionalized "screw you, America, you're not allowed to govern yourselves."

Unknown said...

to the extent that the Court functions as a counter-majoritarian check on tyranny by the majority (an argument that has been advanced by commenters on this blog), that function is inherently at odds with the consent of the governed.

I think Dorf's view can accommodate a counter-majoritarian view of the Court/Constitution.

His claim that the constitution's legitimacy is grounded in the tacit consent of the governed is not the claim that the court must make its decisions in accordance with some mysterious will of the people, but simply that the people have agreed to be governed in accordance with it.

It is a further question whether the constitution that the people have tacitly agreed to be governed by is a majoritarian or counter-majoritarian document.

Originalists would answer this question by looking to the intent of the framers. Dorf would answer it by looking to the intent a contemporary reader would ascribe to the author if everything we knew about the actual authors was somehow hidden from view. Either of these approaches could yeild a counter-majoritarian view of the document.

Dorf's claim is that his approach is more consistent with the view that the legitimacy of the constitution is grounded in the consent of the governed. I'm skeptical about this. Which view is more consistent with the notion of tacit consent seems to depend in no small part on which approach to the document has informed this consent. That seems rather like an empirical question.

egarber said...
This comment has been removed by the author.
egarber said...

I prefer an approach I clumsily call "principled intent."

To me, the question isn't, "what would James Madison specifically do in a case like Good News Club?" Instead, we should be asking, "what general principle did James Madison set forth with regard to religious liberty? And how should it be applied in contemporary circumstances?" [I would also lean on natural rights to err on the side of the individual in these instances, not government]

Within this model, you certainly afford judges the ability to react to the modern day, but they can't just go off in their own direction based on some stretched distortion of the text. After all, if the constitution is just about finding a plausible way to tie text to popular opinion, it becomes possible to read the first amendment in a very different way. In other words, a judge could rule – if prevailing attitudes so reflected -- that the constitution merely forbids the establishment of a national church, while accepting all manner of other entanglements between church and state.

Or consider the fourth amendment. How does the court answer the privacy question about say, infrared observance without a warrant from outside a house? Well, the strict originalist would say, "sorry, the fourth doesn't apply -- there's no record of what Jefferson thought about infrared technology." OTOH, a wide open living constitutionalist might say, "well, let's just see what people think – drugs are a big deal these days." Of course, she / he may be influenced by his own gang of cohorts and mistake their view for that of the people. But even if she / he could accurately determine the majority will, would that even be the appropriate standard for BOR interpretation?

To me, in the fourth amendment scenario, a judge must 1) ascertain the PRINCIPLE set forth by the fourth and 2) identify its scope in the modern world, erring on the side of individual liberty (limited government) if it’s a close call. In my view, you don't even need (2) for that assessment, since it's clear to me that warrantless infrared surveillance violates the larger principle at play in the fourth, given its history.

Maybe another way I could put it relates to how professor Dorf has written in the past about the "generality" problem. When it comes to the BOR, (imo) judges should frame rights generally, so as not to limit the sphere of individual liberty via loaded questions. That's why Roe (as an example) wasn't about "whether someone has a right to kill a fetus"; instead, it was properly framed to presume a broad right to medical / reproductive privacy, while putting the burden on government to prove a compelling need before interfering. I think that’s an entirely proper reading of the BOR, including the ninth amendment. (Yes Sobek – it was me who was pestering you a little while back :) )

In the end, my model is kind of like a corporate mission statement: employees / managers might make different distinctions and apply the mission in varying ways, but at the end of the day, it's easy to know whether decisions further the core principle (make it more “perfect”, in constitutional parlance).

hinheckle said...

If the document that I have given tacit acceptance to is changed after I gave my acceptance, may I withdraw my acceptance?
I am not a legal type, but I have issues with what the government is doing, including the judicial branch.

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