There is nothing that interpretation just is.

• Author: Sunstein, Cass R.

1. THE THESIS

   Many people believe that the Constitution must be interpreted in their preferred way. They insist that the very idea of interpretation requires judges to adopt their own method of construing the founding document. (1)

   The problem with this view is that in the legal context, there is nothing that interpretation "just is." (2) Among the reasonable alternatives, no approach to constitutional interpretation is mandatory. Any approach must be defended on normative grounds--not asserted as part of what interpretation requires by its nature. Whatever their preferred approach, both judges and lawyers must rely on normative judgments of their own. (3) Nonetheless, they sometimes claim that their own approach is necessary, in the sense that they have no choice but to adopt it, if they are to engage in interpretation at all. That claim is a recipe for confusion.

   It is true that some imaginable practices cannot count as interpretation at all. If judges do not show fidelity to authoritative texts, they cannot claim to be interpreting them. But without transgressing the legitimate boundaries of interpretation, judges can show fidelity to texts in a variety of ways. Within those boundaries, the choice among possible approaches depends on the claim that it makes our constitutional system better rather than worse. Importantly, this conclusion does not, by itself, rule out any of the established approaches, including originalism in its various forms, (4) democracy-reinforcement, (5) "moral readings," (6) minimalism, (7) or broad deference to political processes. (8) But it does establish the terrain on which the debates (9) must be undertaken. (10)

2. ON THE VERY IDEA OF INTERPRETATION

   1. Original Intentions

      Consider one view: In interpreting the meaning of words, we ask about authorial intentions. (I use the term "author" to include speakers as well as writers.) That is what it means to interpret words.

      It is true that in ordinary life, we tend to interpret words in this way. (11) If a friend asks you to meet her at "my favorite restaurant," you will probably ask what, exactly, she had in mind. You will not ask which restaurant you like best, or which restaurant is preferred by your favorite restaurant critic. It might even be consistent with ordinary usage to say that in ordinary conversational settings, interpretation of people's words amounts to an effort to elicit their intentions. (12) Of course, this conclusion invites attention to context and purposes, not just words. If a friend makes some kind of linguistic error, we would not want to hold her to those words. But when we depart from her words, it is because we are trying to figure out what she had in mind.

      Some people think that legal interpretation is not fundamentally different. In their view, a form of originalism, based on the idea of authorial intention, is built into the concept of interpretation. For example, Larry Alexander writes that

      given what we accept as legally authoritative, the proper way to interpret the Constitution ... is to seek its authors' intended meanings--the same thing we do when we read a letter from Mom, a shopping list from our spouse, or instructions for how to assemble a child's toy made in China. (13) Walter Benn Michaels goes even further:

      In fact, however, you can't do textual interpretation without some appeal to authorial intention and, perhaps more controversially, you can't (coherently and nonarbitrarily) think of yourself as still doing textual interpretation as soon as you appeal to something beyond authorial intention--for example, the original public meaning or evolving principles of justice. (14) It is true that we could define legal interpretation in this way. But if Alexander and Michaels are using 'interpretation" in the standard legal sense, the definition would be a stipulation, (15) and it would not be based on the necessary meaning of the term. Let us suppose that in ordinary conversation, most people understand the idea of interpretation to involve a search for authorial intentions. Even in that context, such an understanding is not mandatory; we could imagine the view that interpretation involves a search for public meaning, rather than authorial intentions. (16) But it is certainly sensible to say that in conversation, we ask about intentions. If this is indeed sensible, it is for a pragmatic reason; the goal of the particular communication will not be met if we do not. When a friend asks me to meet her, or to do something for her, I am likely to ask about her intentions, because I want to meet her or to do as she would like. If my friend says that we should "meet at the best restaurant in town," I will likely ask what she meant by those words. It is imaginable, of course, that she wants me to do a little work and to see what the restaurant critics like best--but if so, I am still trying to follow her subjective intentions. If interpretation entails that practice, it is because in the relevant context, that is the best way to understand the term.

      The same things might be said about communication within some hierarchical organization. If a supervisor tells an employee what to do, it is right to think that in ordinary circumstances, the employee ought to ask: "What, exactly, did my supervisor mean by that?" (The qualification "in ordinary circumstances" is necessary because even subordinates sometimes ask about something other than speaker's intentions; everything depends on the role of the subordinate, some of whom might have a different or less deferential role.) The employee asks this question, if he does, for pragmatic reasons. Employees should generally follow the instructions of their supervisors, and the practice of following instructions, in hierarchical organizations, usually calls for close attention to the supervisors' subjective intentions. It is plausible to say that in some contexts, interpretation of the instructions of a supervisor "just is" an effort to elicit and follow subjective intentions--not in the sense that this understanding of interpretation is inevitable or strictly mandatory, but in the sense that it captures how most people use the term in such contexts. If that is true, it is because this understanding of interpretation makes the supervisor-employee relationship work best.

      A possible response would be that at least in many contexts, it is not even possible to interpret people's words without making some kind of judgment about the author's intentions. On this view, the idea of meaning depends on some such judgment, and it is incoherent without it. In the legal context, this claim is plainly false, for reasons that are elaborated below. (17)

   2. ORIGINAL MEANING

      One conception of interpretation involves a search for speaker's intentions, and in ordinary life, that is the most common conception. But it is easy to think of cases in which interpretation does not operate by reference to such intentions. In fact some of the most committed originalists, including Justice Scalia himself, believe that what matters is the original public meaning of the document, not intentions at all. (18) In Heller, for example, Justice Scalia wrote that in "interpreting [the Second Amendment], we are guided by the principle that '[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.'" (19) In his view, "[N]ormal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation." (20)

      Originalists themselves argue fiercely about whether the original meaning, or instead the original intentions, should be taken as authoritative (21)--a point that suggests that interpretation, to qualify as such, need not be focused on intentions. Those who focus on original public meaning argue that meaning is objective, not subjective. In their view, what matters is the standard understanding among the Constitution's ratifiers, not what the authors "intended." After all, the ratifiers ("We the People"), and not the authors, turned the Constitution into law. Rejecting subjective intentions, Justice Holmes wrote, "[W]e do not inquire what the legislature meant; we ask only what the statutes mean." (22)

      Of course those who insist on adherence to the original public meaning count as originalists (23)--but they do not rely on subjective intentions. (24) At this point, my goal is not to take a stand on which form of originalism is best or most coherent, or to suggest that the original meaning must be taken as fixed and binding. (25) (The very idea has more than one meaning. (26)) It is only to insist that a prominent understanding of originalism--as involving public meaning rather than intentions--is enough to demonstrate that attention to subjective intentions is not built into the very idea of interpretation. (27)

   3. CONSEQUENCES

      Is it plausible to say that interpretation necessarily entails a search for the original public meaning? Not at all. (28) Alexander is right to suggest that interpretation often involves an inquiry into intentions rather than public meaning. (Recall that if your friend says, "let's go to the best movie now playing," you ask what she has in mind, not what is generally recognized as best, unless that is what she has in mind.) We could also imagine a form of textualism that inquiries about contemporary meaning--thus calling for adherence to the current, rather than the historical, meaning of the constitutional text. To their credit, many of those who insist on fidelity to the original meaning do not insist that their own view is compelled by the very idea of interpretation. Instead they suggest that their own approach would lead to better consequences. (29)

      For example, Justice Scalia stresses the risks associated with judicial discretion, and he contends that if judges...