Note: this is the second of a series of posts reviewing Larry Solum’s most recent paper “Surprising Originalism.”
As we mentioned in our previous post, we admire Larry Solum’s Lakatonian spirit–his identification and explication of the most surprising features of constitutional originalist theory. In this post, however, we will identify several problems with Professor Solum’s defense of originalism. Here we go:
1. Theories of interpretation are normative and are thus not falsifiable. According to Professor Solum, contemporary constitutional originalism is based on two core ideas–the fixation thesis and the constraint principle (p. 235): “(1) the meaning of the constitutional text [is] fixed at the time each provision was framed [i.e. drafted] and ratified [*]; and (2) courts and officials should be bound to that fixed meaning.” [* Put aside the problem of time lags between framing and ratification. The 27th Amendment, for example, was proposed in 1789 but wasn’t ratified until 1992!] Although these two originalist ideas are certainly plausible, are they true? Are they testable or subject to Popperian falsification? Put another way, are Solum’s propositions descriptive (i.e. do these originalist propositions tell us what constitutional law really is?), or are they merely normative (i.e. do these originalist ideas simply tell us what constitutional law ought to be?). Of course, these claims are normative, since the Constitution itself does not contain any commands or provisions regarding its interpretation. In fairness to Prof Solum, however, this lack of falsification problem applies to all theories of constitutional interpretation. It’s possible that originalism is “less bad” than other theories of constitutional interpretation, but as we discuss below, there are many other problems with constitutional originalism.
2. “We the People” is a fiction, or the problem of multiple public meanings. According to the fixation thesis (see above), the meaning of the constitution is fixed, and this fixed meaning consists of the original public meaning of the constitutional text at the time it was drafted and ratified. But this “public meaning” formulation poses a pesky question (p. 246): “What is ‘public meaning’ and how do we discover it?” Here is where originalism begins to break down, for this approach assumes a unified public. (Or in the words of Prof Solum (p. 240): “The drafters of the Constitution were writing for the public. The constitutional text was drafted to be read by ‘We the People.’”) There is, however, no single, unified “We the People.” (Although, as Lady Brett tells Jake at the end of Hemingway’s novel The Sun Also Rises, ‘Isn’t it pretty to think so?'”) In reality, the American polity is comprised of multiple factions (federalists, anti-federalists, slave owners, abolitionists, suffragettes, progressives, etc.), factions with competing interests and radically different views of the Constitution, a point made by none other than James Madison (considered the Father of our Constitution) in Federalist Paper #10! (Check out the fun video below, or better yet, read Madison’s classic paper for yourself.) So, which of these self-serving public meanings is to prevail? Your guess is as good as mine!
3. What about rival theories of interpretation? Instead of presenting rival theories of constitutional interpretation in a fair and balanced manner, Professor Solum presents a mere caricature of these theories. (Indeed, Solum himself concedes as much on page 275 of his paper.) So, what are these rival theories? At least Solum identifies the leading ones, including “common law constitutionalism” (the idea, developed by David Strauss, that the judges should be constrained by their previous constitutional decisions), “constitutional pluralism” (the idea, developed by Stephen Griffin, that history, workability, and other values should matter just as much to judges as the text of the Constitution), and “moral readings” (the idea, developed by James Fleming and the late Ronald Dworkin, that judges should rely on their moral beliefs or natural law), but alas he gives these alternative and equally plausible theories of interpretation short shrift, concluding that none of these rival theories can be squared with the rule of law or democratic legitimacy. Really? At the very least, don’t any of these rival theories have any surprises of their own to give?