Wednesday, August 11, 2010

Polymorphism 3: The New Originalism

By Mike Dorf (Updated/Corrected Post, as Explained Below)

A couple of weeks ago, I posted here and here about constitutional polymorphism--the notion that a single word or phrase in the Constitution could mean one thing in one context and something else in another context.  The posts led to some spirited exchanges in the comments over a number of questions about both statutory and constitutional polymorphism, including: 1) Is it ever justified?  2) How common is it?  3) Were the specific examples I gave actually instances of polymorphism or were they better explained as instances in which a single word or phrase was sufficiently vague that it could have a consistent meaning across contexts, even as the implications of that single meaning varied in those different contexts?

To conclude this discussion of polymorphism, I'd like to connect question 3) to some of the questions raised by the so-called "new originalism."  To summarize, the new originalism--by contrast with the "old" originalism--is essentially a theory about how to read texts rather than a theory about how to constrain judges.  Where the old originalism was often intentionalist and paid substantial attention to the concrete expectations of the framers, the new originalism looks to original public understanding and the concepts captured by the words of the Constitution.  Prominent new originalists include Randy Barnet, Larry Solum, and Keith Whittington.  Jack Balkin professes to be a new originalist as well, although there is debate over whether he should be admitted to the club.  (More on that in a moment.)

Although I regard the move from intentions to public meaning as important, that move was already being made by originalists in the 1980s.  To my mind, the real practical significance of new originalism is its modesty.  Solum describes most contemporary originalists (by which I take him to mean new originalists) as subscribing to what he calls the "moderate contribution thesis": "The semantic content (linguistic meaning of the constitutional text) forms a constraining part of the legal content of constitutional doctrine, but it can be supplemented (by constitutional construction) and may be subject to limited defeasibility conditions (e.g., extraordinary emergencies)."  Likewise for Whittington, much of the contestation in constitutional law is not about constitutional meaning--what he calls "interpretation"--but about "constitutional construction," a process that is not determined by the original meaning of the text.  Solum, Whittington and other new originalists save originalism by shrinking it: Originalism in their hands becomes the claim that public meaning plays an important role in framing constitutional controversies, but much of the heavy lifting is left to "construction."  Thirty years ago Paul Brest called this approach "moderate originalism," which he defined as follows: "The text of the Constitution is authoritative, but many of its provisions are treated as inherently open-textured."  Filling in the open texture is what the new originalists call "construction."

Brest's article (The Misconceived Quest for the Original Understanding in the 1980 BU L Rev) distinguished among three views: strict originalism; moderate originalism; and non-originalism.  After attacking strict originalism (on grounds that have more bite against intentionalist than textualist theories), Brest concluded that moderate originalism is defensible but that non-originalism should generally be preferred.  That is, in principle, a real difference with the new originalism, but I think the discussion of polymorphism provides a nice analogy for showing why in practice the distinction doesn't amount to much.

Consider an example I used in my second post on constitutional polymorphism.  I said that in construing the Establishment Clause as a structural principle not subject to exceptions, the Supreme Court had interpreted the words "no law" differently from how the Court had interpreted the same terms as applied to freedom of speech, where strict scrutiny applies.  Some commenters objected that one could get this pair of results by giving "no law" a consistent meaning, so long as one understood that "freedom of speech" only encompasses protected speech.  (One commenter astutely noted that the Supreme Court once said strict scrutiny applies to denominational preferences under the Est Cl, but I regard that case as amomalous and, in any event, nothing turns on the particular example.)   I agree.  It's usually possible to recharacterize a seemingly polymorphic interpretation of some word as non-polymorphic (monomorphic?), so long as there are some sufficiently vague words lurking around.

Brest makes the same point about moderate originalism.  He says that one can get to the result that the Equal Protection Clause forbids most sex discrimination by purporting to use the original understanding at a sufficiently high level of generality.  However, he says that such decisions are better characterized as really non-originalist.  Or, in the new originalists' terms, the real action takes place in the domain of constitutional construction, after original understanding has run out.

Brest's claim is empirical.  Some of the new originalists contest it, saying that the semantic content will actually rule out some of the results that nonoriginalists would otherwise reach.  But their list is short and contestable.  And Balkin's efforts to fly the new originalist flag while affirming liberal constitutionalism rather seriously undercut them.  Unless the other new originalists have some good ground for kicking Balkin out, his recent work seems to support Brest's claim that results purportedly reached in the name of moderate originalism are not seriously derived from the original understanding.

I'll end with a confession.  I have not read all of the new originalism scholarship as closely as I probably ought to have, mostly because I regard it as a rearguard action to save originalism by sacrificing what made it a distinctive approach.  Hence, it's possible I've missed something important here.  But I doubt it.

Postscript:  Perhaps in confirmation of my concluding confession, the original version of this post mistakenly quoted Professor Solum's definition of the minimal contribution thesis rather than the moderate contribution thesis.  Thanks to him for calling the error to my attention in the comments and on his blog.  I don't think the error undermined the substantive points I make here but I apologize nonetheless.


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Lawrence Solum said...

Just a clarification. Mike's quote is accurate, but it is out of context. I've done a post that provides the full context and makes it clear that the version of the contribution thesis that I endorse (and that is characteristic of originalists) is more robust:

Michael C. Dorf said...

Larry: Thanks for the clarification. I have corrected the main post, as noted above.

Sam Rickless said...

I agree with much of what you say here. There are going to be words ("vehicle", "writings", "regulate," "commerce") the vagueness of which requires us to engage in "construction". When moderate originalists and non-originalists do this, they are on the same page (and I am with them). But I do not think that the specifically *moral* terms in the constitution ("right", "abridge," "freedom," "cruel," "just," "excessive") are nearly as vague as Brest seems to think they are. What counts as infringing a right, what counts as abridging a freedom, what counts as cruel, what counts as just, what counts as excessive, is fixed by moral facts. Widespread disagreement about what the moral facts are -- call this "theoretical controversy" (and hence, widespread disagreement regarding how moral language should be applied in concrete cases) gives the impression that moral terms are vague. This is because vagueness and theoretical controversy have similar consequences. But the impression is mistaken. Moral terms are not nearly as vague as they seem (which is not to say that they are perfectly precise).

More particularly, contrary to what you suggest, it is not true that there is no fact of the matter concerning whether the First Amendment is polymorphic. That is, it isn't that the "open-texturedness" of the words in the First Amendment makes it possible to read the relevant provisions both polymorphically and monomorphically. The First Amendment is monomorphic (at least with respect to the proper interpretation of "no"), and this is a consequence of the proper semantics of moral terms and corresponding moral facts.

Overall, I would say that the proper interpretive approach to the specifically "moral" provisions in the Constitution (such as the ones in the Bill of Rights) should not involve the (relatively unconstrained) "construction" that moderate originalists and non-originalists favor (or, at least, it should involve much less construction than is commonly thought). It should involve getting the moral facts right. This is the aim of moral theory. The interpretive enterprise is therefore *inherently* philosophical.

Michael C. Dorf said...

Sam: You appear to be channeling Ronald Dworkin here! He and you are right that the fact of disagreement about morality does not show that moral realism is wrong (any more than the fact of disagreement about whether Thomas Jefferson fathered a child by Sally Hemings shows that there isn't a fact of the matter). But I think that both Dworkin and you give too much weight to the metaphysical existence of right answers to moral questions, and insufficient weight to the circumstances of politics, which include a great deal of contestation over moral questions. Given such contestation, it is not obvious to me that the best way for courts to flesh out moral language in the Constitution or other legal texts is to apply what they believe to be the best version of moral philosophy. (John Ely nicely parodied this notion with a statement like "You like Rawls; I like Nozick: I win 5-4.")

Sam Rickless said...


Yes, there is much that Dworkin says with which I agree. (I was a student of his briefly, but that is by the bye.)

Two thoughts. First, the role of the Courts is to interpret and apply the law (including the Constitution). If the law is saturated with moral terms that require, for their proper application, appeal to moral theory, then appeal to moral theory is *ineliminable* and should be embraced.

Second. Sure, there are disagreements in moral theory, but most disagreements lie at the edges or concern foundations, and only very few of them have considerable impact on the sorts of practical moral issues that SCOTUS in particular needs to worry about. For example, it is telling that Ely doesn't realize just how much Nozick and Rawls *agree* on (what rights are, the difference between infringement and violation, the circumstances of permissible infringement, the sorts of punishments that count as cruel, and so on). Reports of the contested nature of the kind of moral theory that is relevant to Constitutional interpretation are greatly exaggerated.

Michael C. Dorf said...


Holmes famously said that the use of moral-sounding language in the law ("duty," "right," etc.) does not necessarily invoke moral concepts but legal ones. Although I think he went too far with this in suggesting that morality has nothing to do with law, there is an element of truth to the claim.

As to the question of how much disagreement there is among moral philosophers, you are better positioned to know than I, but I nonetheless find your characterization puzzling. Consider the following topics that have come before the Supreme Court and about which Dworkin and his ilk say that moral philosophy is dispositive: whether there is a right to abortion; a right to physician-assisted suicide; private same-sex sexual conduct; and whether race-based affirmative action is impermissible, permissible, or required. None of these issues is either marginal or fundamental (in the way that the choice between deontology and consequentialism is). Yet I have heard philosophical arguments for a variety of views on each of these questions. Or perhaps you mean something else entirely or are using a special definition of what counts as "moral theory" (e.g., one that says John Finnis, e.g., isn't doing it).

Sam Rickless said...


1. Holmes is right that moral terms in legal provisions do not ipso facto express moral concepts. But this point is not relevant to the proper interpretation of the Bill of Rights, the entire point of which is to give legal effect to moral requirements. (Or do you think that "cruel" or "freedom" or "unreasonable" are legal terms of art?)

2. There will always be philosophical arguments pro and con regarding the proper application of the DP and EP clauses (as well as other clauses). But some philosophical arguments are better than others. It is the job of SCOTUS to decide which philosophical arguments are better and which are worse. The basic point here is that appeal to moral philosophy in the interpretation of the Bill of Rights is, for quite basic semantic reasons, unavoidable. So let us do the best we can with it.

3. I think that if you left these decisions to moral philosophers, the vast majority would find a right to abortion that is limited in the third trimester (and this for *moral* reasons, not because of the importance of viability, which is morally irrelevant), that there is no *right* to physician-assisted suicide (but that the government has no business stepping in to prevent a doctor from helping a patient end her life, at least when she is terminally ill and in irremediable pain), that private same-sex sexual conduct is protected by the DP clause, and race-based affirmative action is constitutionally permissible when it is needed to achieve equality of opportunity.

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As I'm sure you're aware, Article 1, Section 21 of the Pennsylvania Constitution states fairly unambiguously.

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