Originalism as a legal enterprise.

• Author: Lawson, Gary

The reasonable person is an important and ubiquitous figure in the law. Despite the seeming handicap of being a hypothetical construct assembled by lawyers rather than a flesh-and-blood person, he (for most of Western legal history) or she (in more recent times) determines such varied legal and factual matters as the standard of care for negligence liability, (1) the materiality of misrepresentations in both contract (2) and tort, (3) the applicability of hearsay exceptions for admissions against interest, (4) the scope of liability for workplace harassment under Title VII, (5) the clarity of law necessary to defeat the qualified immunity of government officials, (6) and the custodial status of suspects for purposes of Miranda. (7) To carry out these myriad tasks, the reasonable person must understand community norms of care in some settings, apply customary trade practices in others, and grasp principles of legal interpretation in yet others. The reasonable person constructed by the law is capable of assuming many guises and performing many functions.

We focus here on one particularly significant, and significantly underappreciated, legal function of the reasonable person: The reasonable American person of 1788 (8) determines, for 1788 and today, the meaning of the federal Constitution. Thus, when interpreting the Constitution, (9) the touchstone is not the specific thoughts in the heads of any particular historical people--whether drafters, ratifiers, or commentators, however distinguished and significant within the drafting and ratification process they may have been--but rather the hypothetical understandings of a reasonable person who is artificially constructed by lawyers. The thoughts of historical figures may be relevant to the ultimate inquiry, but the ultimate inquiry is legal.

Ever since 1986, when then-Judge Antonin Scalia articulated the distinction between original intent, i.e., the subjective thoughts of historically concrete drafters and/or ratifiers, and original meaning, i.e., the meaning that a reasonable person would attribute to textual language, (10) modern originalists have moved steadily towards the latter. (11) But although the weight of originalist opinion today supports the view that the Constitution's meaning is to be found in the hypothetical mind of the reasonable person, (12) there is not yet a persuasive, systematic defense of this claim nor a clear indication of how one determines the characteristics and interpretative proclivities of this imaginary yet crucial figure. We hope to fill that gap here. In the process, we hope to vindicate the paramount role of lawyers in constitutional interpretation--a role that is seriously threatened by virtually all other originalist (and many nonoriginalist) interpretative methodologies that locate constitutional meaning in sources that are beyond the peculiar competence of lawyers to uncover.

In Part I of this article, we identify the considerations that point generally towards the use of hypothetical rather than historical mental states as the sources of constitutional meaning. The relevant considerations include the Constitution's own terms and structure, the nature of the Constitution's actual authorship and readership, and the social facts that made the Constitution authoritative in practice. Most tellingly, the Constitution itself identifies its author as "We the People of the United States," (13) which is clearly a legal fiction rather than an historical fact. The Constitution specifically requests that it be understood by reference to a hypothetical rather than historically real author or group of authors.

In Part II we introduce the laborious task of describing the characteristics of this hypothetical "We the People of the United States." How smart and reasonable is this legally-constructed person, and what assumptions does he or she bring to the interpretative enterprise? To complete this task would require us to set forth a complete theory of interpretation, and that is not our goal here. But we do mean to suggest the direction for further research and to provide enough material to allow the enterprise of interpretation to go forward in most cases. At a minimum, we show that the hypothetical "We the People of the United States" bears a striking resemblance to the reasonable person familiar to lawyers.

In Part III, we explain how the reasonable person's central role in constitutional interpretation has important consequences for the roles of various experts and specialists in the interpretative enterprise. In particular, we show that our approach suggests a much more important role for lawyers and legal scholars in constitutional interpretation than is implied by many other interpretative theories. If, for example, the key to constitutional interpretation is to identify the mental states of specific historical individuals, then determining constitutional meaning would properly be the province of experts in identifying those mental states; the most obvious candidates for expertise in this area would be historians, psychologists, and linguists. The task of legal professionals under this approach would most sensibly be to marshal and channel those experts, in much the way that lawyers must marshal and channel experts to prove medical malpractice liability or antitrust damages. Under an originalist approach that searches for actual historical intentions, in which meaning is an historical, psychological, and linguistic fact, legal analysis is appropriately the handmaiden of historical, psychological, and linguistic scholarship. By the same token, if constitutional meaning results from moral values, evolving social norms, or other common "nonoriginalist" sources, then the spotlight shifts to moral philosophers, sociologists, or pollsters. Again, there is no obvious reason to privilege lawyers or legal scholars in this kind of search for meaning.

If, however, constitutional meaning depends upon a distinctively legal construct such as the reasonable person, as we maintain, then determining constitutional meaning is more properly the province of legal experts. The people best able to glean the legally-constructed thoughts of a legally-constructed person are likely to be lawyers and legal scholars. Historians, psychologists, and linguists may have something, and even much, to contribute to this legal enterprise, but constitutional interpretation remains a distinctively legal, rather than a distinctively historical, linguistic, or psychological, task. Under reasonable-person originalism (as we term our interpretative approach), historical and other scholarship is appropriately the handmaiden of legal analysis. Our analysis therefore validates, and is validated by, more than two centuries of practice, under which lawyers have generally been recognized as significant, if not the predominant, actors in constitutional interpretation. This practice is difficult to explain under any other plausible originalist approach.

The Constitution is a legal document. It should not be surprising that a legal document is best construed through legal means.

1. THE HYPOTHETICAL OBSERVER DEFENDED

   1. "WE MUST NEVER FORGET, THAT IT IS A CONSTITUTION WE ARE EXPOUNDING" (14)

      Many trees have been felled so that academics can debate theories of meaning, constitutional and otherwise. Those debates range broadly across epistemology, the philosophy of language, literary theory, linguistics, semantics, pragmatics, semiotics, and probably a large number of "-ics" of which neither of us has ever heard. (15) To paraphrase an ex-President, much of the debate depends upon what the meaning of "meaning" is. (16)

      We have neither the ability nor the desire to enter this thicket. We are humble lawyers, with nary an advanced degree in any other discipline between us. Indeed, a central goal of this article is to vindicate the role of lawyers in constitutional interpretation, and if one must be an expert in a wide variety of "-ics" in order intelligently to engage in such an activity, that is very bad news both for our project and for lawyers in general.

      Fortunately, it turns out--or so we believe--that interpreting the federal Constitution is considerably easier than interpreting the writings of John Milton or uncovering the true character of indexicals. The Constitution is a document of a certain kind, and only a subset of the theoretically possible methods of assign ing meaning to words makes sense for such a document. A generalist legal education cannot train one to be a Milton scholar or a philosopher of language, but it can train one to participate usefully in a constitutional dialogue.

      The federal Constitution is not a poem, a novel (chain or otherwise), a manifesto, or a treatise. The federal Constitution is a blueprint--an instruction manual, if you will--for a particular form of government. It is possible to try to describe the Constitution in other terms--for example, as "a principal symbol of, perhaps the principal symbol of, the aspirations of the tradition," (17) as a mechanism for effecting "a transition from today's nonideal world to the better world of our vision," (18) or as "that set of beliefs, or whatever, that has some hold on our behavior, our beliefs, and our collective and individual identity" (19)--and any of these descriptions may be accurate (as Obi Wan-Kenobi might put it) from a particular point of view. But they are accurate in the same respect, and from roughly the same point of view, that it can be accurate to describe the Empire State Building as a mountain rather than a building. (20) The actual authors of the Constitution viewed it as an instruction manual for a form of government. The actual readers of the Constitution during the time of its creation viewed it as an instruction manual for a form of government. And the Constitution on its face presents itself to the world as an instruction manual for a form of government. It is simply...