IN HONOR OF A SIMPLE-MINDED ORIGINALIST.

• Author: Allan, James
• Position: Book review

MORAL PUZZLES AND LEGAL PERPLEXITIES: ESSAYS ON THE INFLUENCE OF LARRY ALEXANDER. Edited by Heidi M. Hurd. (1) Cambridge University Press. 2019. Pp. xxvi + 463. $110.00 (Cloth).

In May, 2017 the Yale Law School's Center for Law and Philosophy, together with the University of Illinois' Program in Law and Philosophy, co-hosted a conference at the alma mater of Larry Alexander, Yale Law School. The conference brought together eminent legal scholars in the areas of criminal law theory, constitutional law theory, jurisprudence and moral philosophy. They were there to honor Professor Larry Alexander of the University of San Diego School of Law, and the result of that celebratory conference, or Festschrift (in these more globalist times), is this very recently published Cambridge University Press book. And my, oh my, it is a very good book indeed. I mean that not just in the sense of it being good compared to the usual booklength edited collection of two dozen odd essays that have to be stuffed between two covers. I mean it is a really good book even by the standards of a well-crafted, sole-authored monograph. The editor, Heidi Hurd, has done an excellent job of fitting together into a coherent whole all 22 contributing authors' essays or chapters, together with her own introduction and a last-wordreply-to-everyone final say by Alexander himself.

The book has four Parts, namely (and in order) "Puzzles in Criminal Law," "Problems in Constitutional Law," "Perplexities in Jurisprudence," and "Paradoxes in Moral Philosophy." Given the usual interests of the readers of this journal, I will focus on just the middle two of those Parts, which in various ways elucidate important issues that bear on constitutional law--though, let me here say that any readers with more catholic tastes will find fascinating the Part I chapters on such things as desert-based punishment, whether failed criminal attempts are less culpable than those that succeed, and the best understanding of duress (with Alexander's end-of-book replies) together with the Part IV chapters that raise such topics as threshold deontology and the difficulty in theorizing wrongful discrimination (with Alexander at the end doubting that any account of discrimination's wrongfulness can succeed and defending deontology with thresholds). I suppose the prefatory point is that Alexander is a man of wide-ranging interests in law who brings a powerful analytical mind to bear on all sorts of theoretical legal issues. You learn from him even when you ultimately disagree with him (as this reviewer does as regards, say, the comparative attractions of consequentialism and deontology). Surely that's one of the highest compliments one can receive.

In what follows, however, I will cleave to the book's Parts II and III, the constitutional law-related contributions. And most obviously that brings me to the question of constitutional interpretation because Larry Alexander is a leading proponent of originalism, of the old school (and these days very minority) intentionalist variety. As a self-described "simple-minded originalist," (3) Alexander embraces his position firstly as a thesis about how language is used, secondly as one about the nature of all interpretation, and thirdly in normative terms about why in interpreting we should defer to the intended meanings of the authors of legal texts--so it is all three for Alexander, semantic, pragmatic and normative. In fact, in his end-of-book reply Alexander lays out an abbreviated step-by-step account of his position, one which I am here further condensing:

1. A text ... is a set of symbols . . . that is meant by its producer--the author(s)--to communicate a message to the intended audience ....

2. If there is no author--no person who produced the marks, sounds, etc. in order to convey a message--we do not have a text. The marks . . . may be a sign of something, much as smoke is a sign of fire .... Marks that might look like symbols, when we understand they are not--think of cloud formations that resemble the letters C-A-T--render certain questions nonsensical that would make sense were there an author ....

3. Texts are individuated by the messages their authors are intending to convey thereby. That is why the text of the US Constitution in Spanish can be the same as its text in English ....

4. When our interest is in the actual authors of a text and the message they intended to convey thereby, we are acting as "originalists." .. .

5. The "conventional meanings" of words--what meaning dictionaries would assign them--are merely the meanings most people at a particular time and in a particular locale would intend to convey by those words. These meanings are therefore time and place bound, and can and do change over time and from place to place. But authors may, and often do, employ unconventional meanings. ... If their intended audience understands [what the authors are unconventionally doing], then the authors can be successful in conveying their message to their intended audience ....

6. Authors rely on implicatures and implicitures in conveying their intended messages. They often mean more, and sometimes less, than they actually say. . . .

7. [Turning now explicitly to interpreting legal texts:] In whomever the authority to enact legal norms resides . . . then, when they decide which norms to enact and attempt to communicate those norms through a written or oral text, the job of the intended audience is to figure out what norms the authors enacted and intended to communicate. If the audience chooses legal norms that differ from those the authors chose to enact and communicate, the authority of the authors is undermined. Only originalism is authoritypreserving.

8. Any departure from originalism either transfers authority from the authors to someone else--for example, to judges--or to some mindless process, such as the process by which the meanings of words change over time ....

9. . . . [N]onoriginalist interpretation really represents a transfer of authority . . . from one body or person to another or to some mindless (nonplanning) process.. . .

10. Interpretation of texts is an empirical, not a normative, endeavor. The interpreter wants to know what norm the authorities intended to communicate through their text. It is often quite difficult to answer the interpreter's question. The authorities may have expressed their intended norm poorly. Or the text may be old or ambiguous, and the context of its promulgation unclear or unknown. But, however difficult interpretation may be, it is unavoidable if the norms we are to be governed by are the norms those with authority to govern us intended.

11. Finally, interpretation must deal with the fact that some legal authorities are multimember bodies, and sometimes bicameral multimember bodies, and can enact legal norms only with the concurrence of majorities or supermajorities. What is the intended meaning of a legal text when the members who voted to enact it did not intend to convey the same meanings and, hence, the same norms by it? This is the aggregation problem. In my view, it cannot be avoided. And when there is no shared meaning that the requisite number of norm enactors endorse, then the text they enact is legal gibberish....Perhaps that unfortunate result is rare. Perhaps it can be avoided by having those who vote for the text accept the meaning intended by some person or committee without having that meaning in mind themselves. I see no way, however, to make the aggregation problem disappear without at the same time undermining the authority of those who are supposed to possess it. (pp. 415-418).

    That, at its core, is the strand of originalism often dubbed Original Intended Meaning or "OIM" originalism. Larry Alexander, along with Richard Kay (4) and (in his later works) Stanley Fish, (5) are probably its best-known and most insightful proponents. At any rate, this OIM or "old originalist" camp is a small one, certainly much smaller than the other main strand of originalism, which most often travels under the moniker Original Public Meaning or "OPM" or even new originalism. And that takes us back to Part II of the book, because four of the seven chapters in this Part are by contributors who, in one way or another, attack OIM (or in Alexander's own self-descriptive terms "simple-minded") originalism. Connie Rosati (chapter nine), Fred Schauer (chapter twelve), Larry Solum (chapter eleven) and Jeff Goldsworthy (chapter ten) all take issue with Alexander's OIM strand of originalism. Rosati, the most...