A Theory of Interpretation: Part I

There's the fixed Constitution (Scalia likes to call it "dead" when he's trying to be provocative, which is most of the time, e.g., here) that means today and forever what it meant when adopted, no more, no less, and especially no other. Then there's the living Constitution that grows and changes to keep up with the realities of the world and with current understanding. You can take those to be opposite poles if you like, though that really does a bit of disservice to both.

Most of the time, for most people, it doesn't matter which one we have or whether we have something else. Drive on the right side of the road. Pay your taxes. Read The National Enquirer or the National Review or the Nation. Shop at Krogers or Whole Foods. Visit the dentist or let your teeth rot. White meat or dark. Great taste or less filling. The Constitution won't make much difference to you. You don't mess with it, and it won't mess with you.

But of course it does matter, and in fundamental ways. Ohio is different from Texas, and the Constitution allows for those differences. The underlying idea of our federal system is that the states matter and, within limits, can do what they want and organize themselves as they wish. But the limits matter, too. So the Constitution is responsible for many of the ways Ohio is not different from Texas.

And the Constitution matters in visceral ways, on things that divide us sharply. Prayer in public school, affirmative action, abortion, gun control, the death penalty, child labor laws, the right to a jury trial, interracial marriage, the rights of the tea baggers to protest. Whatever your view of the Constitution, whether it's living or dead, vibrant or on life support, whether you think it should or not, the Constitution ends up having something to say about all those things.

And, of course, for those of us in the trenches of criminal law, and especially death penalty law, the Constitution is a daily concern.

I've talked a fair amount in these posts about Constitutional interpretation and I've tried to make sense out of the Second Amendment (here and here). What I want to do now is begin to sketch out an actual theory of Constitutional interpretation. The key word in that last sentence is "begin." I have a sense of where I'm going and how I hope to get there, but I'm far from clear about any of it. So see this as a work in progress, subject to tinkering and revising and complete changes of path.

Let's start with a couple of premises I think most of us would accept.

First, words matter. Language controls. We can't just make it up out of whole cloth. And we can't pretend that when the framers said "no law" they meant "lots of laws" or that by "prohibiting" they meant "permitting."

Second, what the framers had in mind, their original understanding of what this or that provision meant, makes a difference. Whether we're bound by what they thought may be contentious, but we can't fairly decide whether to be bound if we don't at least try to understand.

Perhaps an example will help. In a concurring opinion in Baze v. Rees, Justice Thomas argued that the Cruel and Unusual Punishment Clause of the Eighth Amendment ("cruel and unusual punishments [shall not be] inflicted") was understood and intended to prohibit the intentional infliction of torturous punishment. If pain was a by-product, so be it. You just couldn't set out to cause pain. The dominent understanding of the Eighth Amendment for the last fifty years is dramatically different. It derives from a plurality opinion in Trop v. Dulles where Chief Justice Warren set out a very different formulation.

The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

Whatever that means, and however it's applied, it's certainly not what anyone would say is the original understanding of what constituted a cruel and unusual punishment. Whether you favor one model or the other or some third thing, it's useful to know where it all began.

Third, despite what we occasionally pretend and despite some disagreement about just where, there are provisions in the Constitution that really aren't clear. The Fourth Amendment prohibits, among other things (or perhaps exclusively) "unreasonable searches and seizures." Regardless of whether it is only such searches and seizures that are prohibited, and regardless of what should happen when and if they occur, the term "unreasonable" does not carry a precise and universally understood meaning such that there can never be doubt or disagreement about whether a particular search or seizure does or does not fall within its prohibition.

Fourth, however much we may believe otherwise, we might be wrong. We could get the history wrong. We could think something clear that isn't. We could misunderstand a word. There is room for error.

OK. There's a start. Four premises:

1. The language matters.
2. The original understanding matters.
3. Sometimes it's not crystal clear.
4. We can be wrong.
   

What next?

A fourth premise, but a controversial one. The Constitution sets limits on the powers of government, both state and federal (those limits aren't the same, but that's not the controversial part), but it can still, and consistent with the first four premises, be viewed expansively.

This is what leads to the theory.

Justice Scalia's model of interpretation, like Justice Thomas's similar but different one, like not-Justice Robert Bork's, is grounded on the idea (and this is clearly my formulation, not any of theirs - I assume they'd all reject it) that whatever isn't specifically allowed or required by the Constitution is subject to the whim of the people as expressed through their elected representatives.

So, for instance, Miranda warnings are never mentioned in the Constitution. They represent a judicially crafted solution to a problem. While they reference and rely upon a number of constitutional concerns, the court made them up out of whole cloth. Whatever function they serve is gratuituous. The various states and the federal government should be free to develop whatever mechanisms they want to ensure that the rights sought to be protected by Miranda warnings are, in fact, protected.

Similarly, the Constitution says nothing about abortion. Therefore, abortion is neither prohibited nor allowed by it. States can authorize or prohibit at will. And within the scope of its general authority, so can the federal government.

I think that's nonsense. Oh, it's all grounded in the premises I accept, but it understands those premises in way too cramped a fashion. I wrote the other day about the sociological concept of the "total system" in which all behavior is controlled. In one of the series of Martin Beck police procedural novels by Maj Sjöwall and Per Wahlöö, one of the characters describes Sweden as a nation where "all things are either required or forbidden." That's not who we are.

The easiest example is the prohibition on cruel and unusual punishment. By its very language, the Eighth Amendment prohibition covers all punishments which happen to be "cruel and unusual," not merely those that were understood to be cruel and unusual at the time it was adopted. You cannot be both a textualist and an historical originalist. But that doesn't turn into ethereal whateverness, either. Yes, Scalia is right that it means that whatever five members of the Court think is cruel and unusual is. But that's so regardless of what constitutional interpretative model you take.

In Baze, Thomas and Stevens each wrote extensively about what the original understanding of the 8th Amendment was. They disagreed completely. Five votes wins on the Court. What they say, however they analyze things, is the law until there are five votes to say something different. The Constitution may be dead, but it can't be static.

The question is whether we read the words and their context broadly or narrowly. I think we read them broadly to effect the goals not of our approach to social engineering, but of the Constitution itself. I'll talk much more about that, and about why Breyer's approach to Constitutional interpretation (Active Liberty) is as hopeless as the originalist/textualist model, in Part II.