The irrelevance of writtenness in constitutional interpretation.

• Author: Coan, Andrew B.

Arguments about the nature of judicial review and appropriate methods of constitutional interpretation based on the "writtenness" of the Constitution date back at least to Marbury v. Madison. In recent years, originalists ranging from Jack Balkin to Keith Whittington to Randy Barnett have argued in varying fashion that an originalist interpretive approach follows logically from "our commitment to a written constitution." This argument has been extraordinarily important to the ongoing originalism renaissance, but it is a mistake. Nothing--or virtually nothing--follows from the writtenness of the U.S. Constitution.

One can be committed to a written constitution in any number of ways for any number of reasons, the vast majority of which do not entail an originalist interpretive approach.

The originalist argument to the contrary is one instance of a broader rhetorical phenomenon that the philosopher C.L. Stevenson helpfully labeled "persuasive definition." It is an attempt to resolve a normative debate through redefinition of a normatively charged term--in this case, "interpretation." There is broad agreement that judges should interpret, rather than make, the law.

Thus, by redefining "interpretation" to include only originalist interpretation, originalists appear to answer the normative question of how judges should decide constitutional cases. But it is only an appearance. Their argument sheds no light on the actual normative question at issue, which is how we should want judges to decide constitutional cases.

INTRODUCTION I. ORIGINALIST ARGUMENTS FROM WRITTENNESS A. Branch One 1. Popular Sovereignty 2. Constitutional Constraint B. Branch Two 1. The Hybrid Strain 2. The Self-Interpreting Strain C. Branch Three II. THE MANY USES OF WRITTENNESS A. Conventionalism B. Common Law Constitutionalism C. Constitutional Culture D. Pluralist Interpretation E. Other Countries III. THE INTERPRETATION RIDER A. "Descriptive " Analysis B. Persuasive Definitions C. Interpretation D. Binding Law CONCLUSION INTRODUCTION

Arguments about the nature of judicial review and appropriate methods of constitutional interpretation based on the "writtenness" of the Constitution date back at least to Marbury v. Madison. (1) There, Chief Justice Marshall famously wrote the following:

The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? ... Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. (2) This passage has fueled political, legal, and academic controversy for more than two centuries, with scores of commentators echoing Marshall's contention that a written constitution requires judicial review (3) and a nearly equal number attacking it." (4) Marshall's defenders argue that written constraints on the power of the political branches--indeed, the very notion of constitutional supremacy over ordinary law--would be meaningless if judges were required to enforce unconstitutional legaslation. (5) Critics counter that written constitutional commitments can be enforced through a variety of institutional mechanisms, not just judicial review. (6) Moreover, the actual constitutional text, on which Marshall and his defenders place such weight, is completely silent on the question. (7) Surely, the critics contend, that precludes any claim that judicial review is an essential feature of our constitutional design.

The back and forth is by now almost soothingly familiar. In recent years, however, a diverse group of constitutional theorists-ranging from Randy Barnett to Keith Whittington to Jack Balkin--has attempted to extend Marshall's argument to less familiar terrain. In varying fashion, these theorists argue that "our commitment to a written constitution" entails not only judicial review but also an originalist approach to constitutional interpretation. (8) Their argument takes several forms, some of them parasitic on other justifications for originalism, such as popular sovereignty and the rule of law. But in its strongest version, it is offered as a freestanding reason why judges should embrace an originalist approach to constitutional interpretation. The idea is that writing, by its very nature, fixes the meaning of a text at the moment it is written. Otherwise, written words are no more than meaningless marks on a page, subject to the whim and caprice of every individual reader who chances upon them. If this were true, we might as well have an unwritten constitution, which of course we do not. Ergo, the constitutional text must be interpreted according to its original meaning. That is simply what it means to be committed to a written constitution.

This argument has been extraordinarily influential in the ongoing originalism renaissance. Indeed, it may be the most distinctive normative claim of "The New Originalism." (9) Yet it has received virtually no sustained critical attention. (10) This Article seeks to remedy that. Its central claim is simple: nothing--or virtually nothing-follows from the writtenness of the U.S. Constitution. One can be committed to a written constitution in any number of ways for any number of reasons, the vast majority of which do not entail an originalist interpretive approach. For example, one can be committed to the constitutional text as a focal point for legal coordination in the manner of the rules of the road; as a flexible framework for common law elaboration; as a locus of normative discourse in a flourishing constitutional culture; or as one of many legitimate ingredients in a pluralist practice of constitutional adjudication. Obviously, each of these approaches is debatable on the merits. The key point is that all of them, no less than originalism, accord the written text of the Constitution a prominent role.

At this point, a contemporary originalist will be inclined to respond that none of the approaches just described deserves the name of constitutional interpretation. "Of course," she might say, "a written document can be put to any number of uses. That is perfectly obvious. Indeed, why stop with fancy uses like a framework for common law constitutionalism or a locus of normative discourse in a flourishing constitutional culture? The Constitution might just as easily serve to line a hamster cage or to fashion a colony of origami sea lions. Constitutional interpretation, however, implies more than simple use-specifically, a search for the actual meaning of the written text, which is to say its original meaning." (11) If she is careful, our hypothetical originalist will concede that her argument speaks only to the nature of interpretation, not to the legitimacy of the Constitution. The argument cannot, that is, rule out the possibility that the Constitution is illegitimate, in which case we should consider scrapping it altogether.(12) But so long as we accept the Constitution as binding law, she will insist that originalism is not merely the best interpretive approach but the only approach that is truly interpretive.

This widely invoked argument is one instance of a broader rhetorical phenomenon that the philosopher C.L. Stevenson helpfully labeled "persuasive definition." (13) That is to say, it is an attempt to resolve a normative debate through tendentious redefinition of a normatively charged term--in this case, two terms: interpretation and binding law. There is broad agreement that judges should interpret, rather than make, the law. Thus, by defining interpretation as synonymous with originalist interpretation, originalists appear to answer the normative question of how judges should decide constitutional cases. But it is only an appearance. Their argument sheds no light on the actual normative question at issue. Our commitment to a written constitution may mean that we are unlikely to accept an answer to that question that does not accord some role to the constitutional text. But all plausible theories--not just originalism--do that.

The same goes for the originalist argument that other interpretive approaches do not treat the written Constitution as binding law. There is broad agreement that the Constitution is law binding judges as well as other government officials. Thus, by defining law--or more precisely, binding law--as synonymous with originalist interpretation, originalists appear to show that judges are obligated to adhere to the Constitution's original meaning. But again, it is only an appearance. Their argument assumes away the normative question of how judges should decide constitutional cases. As before, our commitment to the written Constitution may mean we are unlikely to accept an answer that does not accord some role to the constitutional text. We are also unlikely to accept an answer that falls outside the family of activities conventionally understood as law. But all plausible theories satisfy both of these requirements. The writtenness of the Constitution is therefore irrelevant to the choice between originalism and other plausible contenders. Or so this Article shall contend. (14)

Part I surveys and classifies the various originalist arguments from writtenness. Most prove question begging or parasitic on other justifications for originalism. In its strongest form, however, the argument from writtenness emerges as a coherent and potentially independent justification for an originalist interpretive approach. Part II assesses this...