Reviewed by Daniel Levin, Department of Political Science, University of Utah. Email: daniel.levin [at] utah.edu.
Debates over grand theories of constitutional interpretation sometimes remind one of medieval warfare. Theorists associate themselves with either originalism or with a particular form of progressive or “living” constitutionalism and then proceed to claim the high ground, erect high walls or moats around their positions, and lob large boulders at their opponents. There have certainly been attempts to reconcile originalism with progressive theories of constitutional interpretation (e.g. Balkin 2011), but these remain an exception. And there remains the fundamental question of whether theories of interpretation ultimately lead to specific answers to constitutional questions or whether they primarily constitute meta-discourses that do more to locate their endorsers within political space than settle disputes.
Constitutional Originalism: A Debate contains contributions from two authors, Robert Bennett, a supporter of living constitutionalism, and Lawrence Solum, a proponent of originalism. Its format follows something of a debate, as each author first contributes an opening statement that is longer and more involved than the later rebuttals and is, somewhat surprisingly, almost entirely without reference to the other – though often treating other authors on the opposing side. Each author then replies to the other’s opening statement in a single iteration which is more specifically responsive. While the format simulates that of a debate, the single iteration of the replies is less engaging than a more fully realized, multiple iteration process of proposal and critique might have been. Similarly, both authors’ contributions are focused on questions of constitutional meaning in ways that are largely separated from specific controversies. This makes the book feel more civil and more high-minded, but, because there is little sense of ultimate consequences, less appealing to those as interested in constitutional politics as constitutional theory.
Both Solum and Bennett are primarily interested in the how theories of textual and extra-textual meaning contribute to, or detract from, proper constitutional interpretation. Solum proposes a “new originalism” that is grounded in what he labels the “original public meaning.” This follows the general trend in originalist theory, set perhaps by Justice Scalia, in moving away from “original intent” to “original understanding” so as to avoid many of the pitfalls involved in ascertaining intent. The need to better define original public meaning, distinguish it from original intent, and defend it against other theories is the focus of the first part of Solum’s opening statement. He then moves on to develop a distinction between legal interpretation and judicial construction so as to isolate originalism within the sphere of legal interpretation and to insulate it from [*386] critiques based in the difficulty of applying interpretations of original meaning to the concrete problems that emerge from real world disputes. While Solum’s many distinctions preserve his version of originalism from many possible critiques, they also suck much of the vitality out of it. Perhaps the greatest virtues of Solum’s contributions to this volume are their logical organization and clarity of expression; it is one of the best written versions of originalism I have read, though one with clear limits, as discussed below.
Bennett, on the other hand, is primarily interested in demonstrating that living constitutionalism is the only realistically viable theory of interpretation by illustrating the many problems underlying any theory of either original intent or original understanding. In Bennett’s argument, the lacunae in the Constitution’s text and the lack of a clear consensus over the original meaning make originalism a mask that conceals the choices necessarily made by any interpreter. In contrast, the theory of living constitutionalism acknowledges that interpreters often make choices based on larger principles that may be rooted in the text, but are not fully defined by the text. Bennett is particularly useful in illustrating the inability of any theory of original meaning to provide the kinds of specific and relevant principles necessary to resolve contemporary constitutional questions. While Bennett’s presentation of the living constitution argument is generally useful, his use of such cutesy devices as representative but hypothetical original intent and original meaning theorists named “Mr. Intender” and “Mr. Meaning,” as well as “Constitution Man,” a “superhero” who seeks answers to constitutional questions, may irritate some readers. Bennett’s presentation of his thesis is also less linear than Solum’s, moving back and forth between several arguments at a time and requiring more attention by the reader.
While both authors are interested in theories of meaning, neither ventures much beyond the legal literature into such disciplines as history, political theory, literary theory, or linguistics, to develop their ideas further. This is a substantial weakness of the book and may make it less appealing to those outside law schools. Solum, in particular, seems actively hostile when it comes to other disciplines in a way that undercuts the generally civil tone of the volume. For example, in one passage he declares that the eminent historian of political thought Quentin Skinner’s “understanding of the philosophy of language can fairly be characterized as dodgy” (p.57) without providing a single specific reason, or reference, for this assertion – claiming instead that anyone reading Wittgenstein or Austin might question Skinner’s grasp of those thinkers, as if the correct interpretation of either thinker was self-evident. Given that Skinner’s work, and more contemporary work following Skinner’s, constitutes a significant and sophisticated challenge to the possibility of the kind of reconstruction of historical understandings essential to Solum’s brand of originalism, this is insufficient.
Solum is equally unpersuasive when it comes to the claims of legal realism and judicial behavior research. Here is the entirety of his reasoning as to why they do not undercut the viability of originalism as a judicial practice: [*387]
In the grand sweep of human history and in the light of judicial practice across the globe, the theories advanced by the American legal realists and their heirs are aberrational. For most of human history and in most of the legal systems of the developed world, the ability of judges to follow the law has been accepted in theory and demonstrated in practice (p.51).
Not only does Solum fail to provide empirical evidence for this grandly sweeping assertion, this is logic-chopping, plain and simple. Even if legal realism and its heirs are “aberrations” that are uniquely American, the U.S. judicial system is the context for the originalist debate, while the performance of Swiss or Babylonian courts can fairly be characterized as irrelevant. Moreover, being aberrational is not the same as being invalid; evolutionary theory is surely an aberration when compared with origin myths, but its validity depends solely on the evidence. And neither legal realists nor judicial behavioralists claim that judges fail to “follow the law” – they simply claim that the interpretation of the law is necessarily influenced by factors beyond the text, including the previous experiences and prejudices that accompany judges to the bench. But because these theories undercut the optimistic vision of legal interpretation offered by Solum, they must be summarily disregarded. Solum’s off-hand dismissals significantly lessen the force of his argument and leave the impression that he is incapable of addressing the threats they pose to originalism. He certainly fails to acknowledge studies by political scientists illustrating how judges’ public commitments to either originalism or non-originalist theories make little difference in their opinion-writing (Gates and Phelps 1996; Howard and Segal 2002), findings that would seem to undercut orginalism’s claim to constrain judicial discretion. To be fair, Bennett is no more engaged with the scholarly world outside law schools and law reviews, but neither is he so dismissive of it.
While a useful introduction to a debate that has been especially active over the past thirty years, Constitutional Originalism does not break new ground. Its primary use may well be in the classroom, specifically in law schools, where it will provide a generally well-written and even-handed presentation of this important controversy. For political scientists, however, it may feel strangely disconnected from the contemporary political and empirical questions that make that controversy so intriguing.
Balkin, Jack M. 2011. Living Originalism. Cambridge, MA: Harvard University Press.
Gates, John B. and Glenn A. Phelps. 1996. “Intentionalism in Constitutional Opinions.” Political Research Quarterly 49: 245-261.
Howard, Robert M. and Jeffrey A. Segal. 2002. “An Original Look at Originalism.” Law & Society Review 36:113-138.
Copyright 2012 by the author, Daniel Levin.