TABLE OF CONTENTS INTRODUCTION I. POSSIBLE INTERPRETIVE METHODOLOGIES II. DEBATES SURROUNDING THE METHODOLOGIES III. POSSIBLE RESPONSES TO THE PUZZLE A. The Natural Law Response B. The Rule-of-Recognition Response C. Dworkin's "Constructive Interpretation" Response D. The Skeptical Response CONCLUSION INTRODUCTION
This Essay focuses on a basic puzzle about constitutional interpretation: Are there legally correct answers to contested questions concerning the methodology for interpreting the U.S. Constitution? Consider, for example, the debate about originalism. (1) Originalists claim that questions of constitutional law should be resolved by looking to the original public meaning of provisions in the text of the Constitution or the original intentions of the Framers concerning how the text should be applied. Nonoriginalists deny that either original meaning or original intentions are the touchstone for constitutionality. Is it the case that one party to this debate is legally correct and the other party legally incorrect?
Or consider the representation-reinforcement theory of interpretation proposed by John Hart Ely, (2) building on the famous footnote four of United States v. Carolene Products Co. (3) Ely's theory is one particular version of nonoriginalism. Ely argues that the Constitution should be interpreted so as to improve the process of majoritarian democracy. (4) In Ely's view, the First Amendment is centrally a protection for the political speech required for free and fair elections and for the process of crafting legislation, rather than a broader protection for all speech as a basic aspect of human liberty. (5) The Equal Protection Clause is seen to be focused on cleansing the political process of prejudice against racial minorities, rather than as, more minimally, a formal nondiscrimination guarantee or, more ambitiously, a constraint on laws that have a substantially disparate impact on minorities. (6) And, for Ely, the Due Process Clause is not a guarantee of substantive rights that would serve as constraints on a well-functioning political process, such as rights to contraception, abortion, or assisted suicide. (7) When Ely argues in favor of a representation-reinforcement methodology, while others disagree, can it be that one side to this dispute is legally correct and that the other side is making a legal mistake?
For short, I will refer to the following as "the Puzzle": Are there legally correct answers to contested questions concerning the methodology for interpreting the U.S. Constitution? In stating the Puzzle, I have chosen my words carefully. I am asking whether there are legally correct answers to contested interpretive questions, not whether there are correct answers in some other sense) My focus is on contested questions of interpretive methodology. For reasons that will emerge in this Essay, I do not think it is hard to explain how there can be legally correct answers to uncontested interpretive questions. In particular, the vast majority of U.S. jurists and scholars and, I assume, citizens and officials agree that the text of the 1787 Constitution, as amended, is the primary source of constitutional law. Some believe it is the sole source; (9) others believe that the text can be supplemented with unwritten sources of constitutional law; (10) but no one espouses an approach to constitutional interpretation that would ignore the text or give it a minor role. Thus, explaining why it is legally correct for a U.S. judge to decide a constitutional case by looking to the text of the 1787 Constitution, as amended--rather than the text of the French Constitution, the German Constitution, or any other text outlining a system of governmental institutions and individual rights--is not too difficult. What is difficult is explaining why it would be legally correct for a U.S. judge to interpret that text using method M, rather than method M*, when both method Mand method M* have significant support among jurists, scholars, officials, and citizens--when there is no consensus regarding which method ought to be used.
The Puzzle, as I have stated it, concerns the U.S. Constitution. The Puzzle may translate perfectly into other legal regimes, or it may not. In any event, I am interested in making sense of constitutional disagreement in our legal system, given broad consensus that a particular text--the 1787 Constitution, as amended--is the primary source of constitutional law but a lack of consensus regarding the methodology for applying that text to resolve constitutional cases.
Finally, I train my attention on the possibility of right answers concerning foundational questions of interpretive methodology. To be sure, one might pose the problem more broadly. One might ask: How can there be a legally correct answer to any contested question of constitutional law? For example, given the absence of a consensus in this country about the existence of abortion rights, how can it be the case that, legally, women really do have a constitutional right to abortion, as was reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey? (11) Given the absence of consensus about the breadth of federal power under the Commerce Clause, how can it be the case that, legally, Congress really does have the power to prohibit noncommercial, intrastate activities--for example, barring the cultivation of marijuana for personal, medical use, as in Gonzales v. Raich? (12) Four Justices dissented in Casey; (13) three Justices dissented in Raich. (14) Why did the majority Justices feel confident that their position was legally warranted, in the teeth of disagreement by their dissenting brethren and those in the country at large who also held these dissenting views?
It seems to me that the possibility of right answers in cases such as Casey or Raich hinges on the answer to the Puzzle, as I framed it. Assume that there exists a legally correct interpretive methodology, despite the absence of consensus about what that methodology is. Then there could easily be a genuine legal right to abortion or a genuine federal power to regulate intrastate noncommercial activities, notwithstanding disagreement on these issues. The dissenters in Casey or Raich might just be mistaken about the application of this methodology to the case at hand.
Conversely, if legally correct answers to contested questions of interpretive methodology do not exist, then it would seem that the possibility of right answers to more concrete constitutional disputes--disputes about the allocation of power between state and federal institutions, as in Raich, or about the content of individual rights, as in Casey--is also undermined.
This is a point that I will return to at the end of this Essay. I will suggest that a skeptical answer to the Puzzle may well engender a broader skepticism about the enterprise of constitutional law. (15) For now, however, I will place to one side broader questions and focus narrowly on the Puzzle itself: the legal status of contested interpretive methodologies.
POSSIBLE INTERPRETIVE METHODOLOGIES
At the threshold, let me stress that there are real and ongoing debates among U.S. scholars and jurists, and in our legal community more generally, about interpretive methodology. Perhaps this point is so obvious that it does not bear elaboration; but, out of an abundance of caution, I will elaborate a bit. Consider any given provision in the text of the Constitution--to use a concrete example, the Eighth Amendment. I see at least five different general methodologies for determining whether a given piece of legislation imposes "cruel and unusual punishments." (16) These methodologies, as I will describe them, are not fully precise--each is really a family of submethodologies--but they are still, clearly, distinct from each other. One might look, first, to the original public meaning of the phrase "cruel and unusual punishments" as of 1791, the date the Eighth Amendment was enacted; second, to the original intentions of the Framers of the Eighth Amendment; third, to traditional understandings, across time, concerning which punishments are "cruel and unusual"; or fourth, to current consensus on that matter. (17) Note that an original meaning view, a traditional meaning view, and a current meaning view all look to social norms and practices in determining the meaning of a provision in the text, but they disagree about the temporal location of the relevant social norms and practices. (18) Note also that a precedent-based approach to deciding constitutional cases (19) can be seen as a submethodology within the broader family of traditionalism. To determine whether a statute violates the Eighth Amendment by examining the Supreme Court's Eighth Amendment case law is, in effect, to infuse meaning into the term "cruel and unusual punishments" by looking to judicial traditions concerning that term.
A fifth approach looks beyond social norms and practices in determining the meaning of a constitutional provision. Such a methodology instructs the judge to bring to bear certain moral considerations, even if those considerations are not directly supported by the text as read in line with original intentions, original meaning, traditional meaning, or contemporary meaning. (20) Subfamilies within this general methodology can be differentiated depending on the kind of moral considerations that judges are told to rely upon. For example, Ely's methodology says to specify the meaning of "cruel and unusual punishments" so as to advance the basic goal of a well-functioning democratic process. (21) A different submethodology within this fifth approach is that advocated by Richard Posner and other pragmatists who argue that judges should read the Constitution so as to maximize good consequences--good consequences being a certain kind of moral consideration. (22)
These methodologies can also, to some extent, be hybridized with each other--producing...