Chapter Six

TEXTS AND INTERPRETATION

By originalism I mean the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters. At least since Marbury, in which Justice Marshall emphasized the significance of our Constitution's being a written document, originalism in one form or another has been a major theme in the American constitutional tradition. The most widely accepted justification for originalism is simply that The Constitution is the supreme law of the land. The Constitution manifest the will of the sovereign citizens of the United States --"we the people" in the conventions and legislatures that ratified the Constitution and its amendments. The interpreter's task is to ascertain their will. --Paul Brest

1. Inference to the Best Explanation and Textual Interpretation

Although the interpretation of linguistic texts seems far removed from the above examples of explanatory reasoning, they all share remarkable similarity of form. Historians are concerned with texts, so are legal scholars, and indeed all of us rely on the spoken and printed word as evidence for all sorts of hypotheses. We might well turn to other interpretive disciplines like biblical hermeneutics and literary criticism for methodological insights. Rather than begin with a tricky legal statute, or a puzzling short story, however, it will be clearer, and more amusing, to illustrate the explanatory nature of textual interpretation with an example that does not require the background of an academic specialization. Stanley Fish provides a good one.

I have in mind a sign that is affixed in this unpunctuated form to the door of the Johns Hopkins University Club:

PRIVATE MEMBERS ONLY

I have had occasion to ask several classes what that sign means, and I have received a variety of answers, the least interesting of which is, "Only those who are secretly and not publicly members of this club may enter it." Other answers fall within a predictable narrow range: "Only the genitalia of members may enter" (this seems redundant), or "You may bring in your own genitalia," or (and this is the most popular reading perhaps because of its Disney-like anthropomorphism) "Only genitalia may enter." In every class, however, some Dr. Johnson-like positivist rises to say, "But you're just playing games; everybody knows that the sign really means, 'Only those persons who belong to this club may enter it.'" He is of course right.

Interpreting the sign involves making an inference about what it means. We have a collection of data that is in need of explanation.

e₁. The "text" is on a sign.

e₂. The sign is on a door.

e₃. The door is to the Johns Hopkins University Club.

e₄. The "text" reads, "PRIVATE MEMBERS ONLY".

Such a characterization of the data implies that we have already done a certain amount of interpretation. We have explained the shapes "PRIVATE MEMBERS ONLY" as an attempt at linguistic communication; they did not accidentally appear when the building was being painted, nor are they modern art. Our explanatory question focuses on what these words are intended to communicate. We have an number of explanatory hypotheses:

t₁. Only those who are secretly and not publicly members of this club may enter it.

t₂. Only the genitalia of members may enter.

t₃. You may bring in your own genitalia.

t₄. Only genitalia may enter.

t₅. Only those persons who belong to this club may enter it.

t₆. The sign was intentionally designed with the double meaning by witty intellectuals.

As Fish's no-nonsense student insists, it is perfectly obvious what the best explanation of the words on the door is. Clearly t₅ is the simplest, most complete, least ad hoc, and most plausible account. Linguistic communication and interpretation is an inherently explanatory process. From casual conversations and fun signs on doors, to the interpretation of literary, constitutional and biblical texts, the role of the reader (or listener) is always the same. There are printed shapes and noises that need to be explained. Given the first order explanation that they are attempts at linguistic communication, the question now becomes what hypothesis best accounts for the meaning in the present context?

2. A Working Theory of Constitutional Interpretation

The job of the Supreme Court is to interpret the Constitution and not to use judicial review as just another way of making political decisions based on personal calculations of what is best for society, either from a policy standpoint or one of personal moral judgment. The problem before us, therefore, is what relevant data must be accounted for in methodologically legitimate constitutional interpretations. The official conservative position is clear. They insist that the range of data must be severely limited. Ideally, one would stipulate that the words of the document are all that is relevant -- judicial review must be exercised in accordance with what the Constitution says. This proves unworkable, of course, since virtually every interesting bit of constitutional language is capable of more than one plausible reading. It is at this point that the founders intentions are brought in.

There are well known problems with authorial intent theories of literature. Original intent theories of constitutional interpretation inherit most of them, but also generate new problems. The following are two particularly serious puzzles. Who counts as the "founders"? Does Jefferson? (He was out of the country at the time the document was drafted and debated.) How about the state conventions that ratified? Whoever we decide the founders were, they constitute a collective. What do we do about disagreements, or compromises? (Consider the deals that were struck with regard to slavery.) These problems might be classified as practical; they are the sorts that might concern historians. They are serious, but that does not mean they are unanswerable. Presumably, scholars could offer evidence in support of particular theories about whose intentions should count, and how much. We can expect at the very least, however, that these proposals will be controversial. A much more serious problem to my mind has recently been raised by Dworkin.

He distinguishes concrete intentions from abstract intentions. Suppose a colleague asks my advice on a particularly tricky question that the personnel committee must decide. I tell her that I think teaching and research must be balanced, and that tenure decisions must always be based on a judgment of what is in the over all best interests of the institution. Suppose further that the personnel case involves Professor Green, that I am aware of this fact, and my colleague knows that I am so aware. I believe that Green's reputation as a teacher is based more on personal charisma and easy grading than on pedagogic skill. I also think his research is sketchy and superficial. I have made no secret that applying my formula to Green's case results in a nonfavorable tenure decision. Although I am offering advice, not authoring a constitutional document, my concrete intention is that Green be fired. The language I used to my colleague, however, expressed my abstract intentions about tenure decisions. What should my colleague do if she admires me enough to apply my abstract formula, but comes to a different concrete calculation? Dworkin hints, and I fully agree, my colleague takes my advice more seriously if she applies my abstract intentions about tenure. It is irrelevant what I think about Green; she was elected to the personnel committee, not me.

As problematic as authorial intent theories of constitutional jurisprudence are, they express a compelling insight. One of the most important features about the Constitution is that it is a written document. The rights and responsibilities of citizens and their government are spelled out in language, however vague and abstract that language may be. Questions of textual meaning seem inexorably tied to the intentions of language users. Hirsch is willing to grant the obvious epistemological problems, but insists that authorial intent is, nevertheless essential to the interpretive process.

The most important argument to consider here is the one which states that the author's intended meaning cannot be certainly known. This argument cannot be successfully met because it is self-evidently true. I can never know another person's intended meaning with certainty because I cannot get inside his head to compare the meaning he intends with the meaning I understand, and only by such direct comparison could I be certain that his meaning and my own are identical. But this obvious fact should not be allowed to sanction the overly hasty conclusion that the author's intended meaning is inaccessible and it is therefore a useless object of interpretation. [Hirsch]

The problem is not the relevance of authorial intent to the interpretive process, but rather the attempt to make intent the objective and independent standard for interpretive truth. Fish claims that intention is not the reality against which interpretation is tested but the end product of the entire interpretive process.

[I]t is only "natural" to assign agency first to an author's intentions and then to the forms that assumably embody them. What really happens, I think, is something quite different: rather than intention and its formal realization producing interpretation (the "normal" picture), interpretation creates intention and its formal realization by creating the conditions in which it becomes possible to pick them out. . . . formal units are always a function of the interpretive model one brings to bear; they are not "in" the text, and I would make the same argument for intentions. That is, intention, like a formal unit is made when perceptual or interpretive closure is hazarded; it is verified by an interpretive act, and I would add, it is not verifiable in any other way. [Fish]

Fish is well known for his provocative way of expressing his theoretical views. The above quote is sure to offend many, both in literary criticism and jurisprudence. His point can be made, however, in more modest terms. Intentions, like readings, must be constructed. Intentions are not objectively "out there." We may have evidence that some author had strong feelings on some point, or that the founders were particularly concerned to protect some right. The postulation of an intention, therefore, is an explanatory theory -- it allows us to make sense of what we know about the text and the author.

The question now becomes what additional data is relevant to interpreting the Constitution. The most plausible "a-contextual" meaning of the language is surely important. Also the intentions of the authors (assuming, of course, that we are agreed who the authors were, and whether they were speaking abstractly or concretely) must be included. Michael Perry characterizes himself as a "non-originalist" because he argues that the Court should not be tied exclusively to interpretations that focus on original intent; intentions are relevant, but not the only relevant factors. In particular, Perry claims that the Court must explicitly bring in ethical considerations.

On what moral beliefs ought a person to rely, in her capacity as a judge, in deciding whether public policy regarding some matter is constitutionally valid? The originalist answer, as we've seen, is: original beliefs (in conjunction with whatever beliefs are supplemental to them). The non-originalist answer is: with respect to certain provisions of the constitutional text, original beliefs, the fundamental beliefs of the American political tradition signified by the provisions -- beliefs or aspirations as to how the community's life, the life in common, should be lived. [Perry]

Part of the non-originalist project requires the collection of data about the "American political tradition," that is, historical data. Richards has recently emphasized the importance of "a self-understanding of our historical constitutional traditions, and the larger moral, religious, and political ideals they reflect." While Richards focuses on the discovery of values through historical scholarship, Perry candidly endorses moral philosophy. He is quite comfortable defending particular moral stands on controversial issues as being correct, at least from within an interpretive community.

In the past two decades, Ronald Dworkin has been articulating a theory of legal interpretation that brings together many of the themes discussed above. In his recent book, Law's Empire, he states his methodological presupposition as follows:

[L]egal reasoning is an exercise in constructive interpretation[;] . . . our law consists in the best justification of our legal practices as a whole[;] . . . it consists in the narrative story that makes of these practices the best they can be. The distinctive structure and constraints of legal argument emerge, on this view, only when we identify and distinguish the diverse and often competitive dimensions of political value, the different strands woven together in the complex judgment that one interpretation makes law's story better on the whole, all things considered, than any other can. [Dworkin]

Ronald Dworkin

3. Is the Death Penalty Unconstitutional?

Suppose you are like I am and believe that capital punishment is both immoral and unconstitutional. How might you make your case? The citizenry at large, as well as their leaders at both a state and federal level, feel that capital punishment is desirable on both moral and practical grounds. That certain defendants die for certain acts is the clear will of the majority. The constitutional lawyer who feels that capital punishment is morally and legally wrong must present positive arguments showing that the majority, who obviously see things very different, cannot have what they want. Even those of us who applaud an active Court that is committed to protecting individual rights must concede that the argumentative burden for judicial review is greater than simply countering the other side's moral and empirical arguments. The constitutional critic of capital punishment must show that it specifically offends the Constitution, and not merely that it is poorly defended from a moral or practical point of view.

The starting point, therefore, is the constitutional text. Let me remind you of some interesting things that our Constitution says.

e₁. From the Fifth and Fourteenth Amendments: "[No person shall be] deprived of life, liberty, or property, without due process of law."

e₂. From the Eighth Amendment: "[C]ruel and unusual punishment [shall not be] inflicted."

e₃. From the Fourteenth Amendment: "[No State shall] deny to any person within its jurisdiction the equal protection of the laws.

I want to illustrate an application of inference to the best explanation, of what Dworkin calls constructive interpretation, to these bits of constitutional text.

We can draw a couple of interesting explanatory conclusions from e₁. As many constitutional defenders of capital punishment have pointed out, the Fifth and Fourteenth Amendments seem to implicitly sanction the death penalty. They both mention situations where Congress, or the State, may deprive a person of his or her life. I think there is little doubt that the Constitution reflects the concrete intention of its authors that the death penalty be permitted. But their language is abstract, and it implies the clear limitation of due process of law. I propose, therefore, the following provisional explanation of their abstract intention with regard to capital punishment.

t_a. Capital punishment may be exercised by Congress or the State, if and only if, there is due process of law.

Capital punishment is abstractly consistent with the Constitution, according to this constructive interpretation, but only in so far as there is due process of law.

e₂ articulates a further limitation on capital punishment, as well as any other form of criminal punishment. The abstract intentions of the founders of the Constitution is that the death penalty may not be cruel nor unusual. Thus, t₀ can be expanded.

t_b. Capital punishment may be exercised by Congress or the State, if and only if, (i) there is due process of law, and (ii) capital punishment is neither cruel nor unusual.

Some critics argue that capital punishment in this day and age is per se cruel and unusual. Justice Brennan argued that an abstract intention expressed in our Constitution is the fundamental importance of human dignity. He went on to claim that capital punishment was inconsistent with this basic value.

In sum, the punishment of death is inconsistent with all four principles: Death is an unusually severe and degrading punishment: there is a strong possibility that it is inflicted arbitrarily; its rejection by contemporary society is virtually total; and there is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment. The function of these principles is to enable a court to determine whether a punishment comports with human dignity. Death quite simply does not.

My own moral calculations on this issue are in complete agreement with Justice Brennan. Unfortunately, a majority of my fellow citizens, a majority of my readers, and a majority of the Supreme Court disagree. The Court ruled in 1976 that capital punishment was not per se unconstitutional. Indeed, two Supreme Court decisions from the 1970s are important pieces of additional data for our constructive interpretation.

e₄. In 1972 in the case of Furman v. Georgia, the Supreme Court ruled that capital punishment statutes were in violation of the Eighth Amendment because the capricious infliction of death constitutes cruelty.

Justice Stewart uses some of the wording from Furman to articulate his understanding of the constitutional principle from this important case.

Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. . . . "[T]he death penalty is exacted with great infrequency even for the most atrocious crimes and . . . there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." . . . Indeed, the death sentences examined by the Court in Furman were "cruel and unusual in the same way that being struck by lightening is cruel and unusual. For, of all the people convicted of [capital crimes], many just as reprehensible as these, the petitioners [in Furman were] among a capriciously selected random handful upon which the sentence of death has in fact been imposed. . . . [T]he Eighth and Fourteenth Amendments cannot tolerate the infliction of death under legal systems that permit this unique penalty to be so wantonly and freakishly imposed."

Justice Stewart is speaking for a majority of the Court in its pivotal decision in Gregg v. Georgia that constitutes our next bit of relevant data.

e₅. In 1976 in the case of Gregg v. Georgia the Supreme Court ruled that capital punishment was not per se cruel and unusual punishment, and that the newly rewritten murder statute in Georgia successfully avoided the problem of arbitrary and capricious death sentences.

I disagree and think that Justice Blackmun finally got at the heart of the problem in the 1993 case of Callins v. Collins.

The problem is that the inevitability of factual, legal and moral errors gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.

This is a clear minority view, however. The current state of constitutional law is clear. Capital punishment is consistent with the Eighth Amendment.

One additional piece of constitutional text is relevant to our discussion. Recall e_3.

e₃. From the Fourteenth Amendment: "[No State shall] deny to any person within its jurisdiction the equal protection of the law."

In the same way that the arbitrary and capricious nature of the earlier death sentences constituted a kind of cruelty, and hence, a limitation on the state's ability to execute, I am arguing the Equal Protection Clause creates a potential limitation on capital punishment. Thus, the interpretive theory I ultimately defend as the correct constructive interpretation of abstract intentions of the framers of the Constitution and the Fourteenth Amendment with respect to the death penalty is the following.

t₀. Capital punishment may be exercised by Congress or the State, if and only if, (i) there is due process of law, (ii) capital punishment is neither cruel nor unusual, and (iii) capital punishment is administered in a non-discriminatory manner that constitutes equal protection of the laws.

In the chapter to follow, I will be arguing the that this third condition is clearly violated, and that capital punishment is, therefore, not constitutionally permitted. As things stand now, however, the question before us is whether I have good evidence in support of my constructive interpretation of the constitutional texts.

4. Rank Ordering Interpretive Theories

The final step in the inference to the best explanation recipe is to rank order all of the explanatory hypotheses, the original along with the rivals. When we are concerned with texts and interpretive theories we may well have some very conflicting emotions. Those of you who know anything about scholarly disputes in literary theory of constitutional law may well come to the conclusion that any rank ordering of interpretive hypotheses will simply be a list of subjective preferences. We all know that feminists, Marxists, and political conservatives see things very differently. Indeed, we will be discussing problems of subjectivism and relativism latter in this book. But, we should also remember Fish's student -- everyone of us knows the correct interpretation of the sign at Johns Hopkins. There are many contexts in which the explanatory plausibility of an interpretation is every bit as "objective" as the hypothesis about the cheating, or some established theory in the natural sciences.

I am claiming that t₀ is the best explanation of the abstract intentions of the authors of the Bill of Rights, the authors of the Fourteenth Amendment, and the emerging body of constitutional law developed over the past two hundred years. Those of you who disagree with me -- and I certainly realize that many of you will -- have an obligation to articulate an interpretive theory you believe better explains all of this. It is a challenge that I invite you to undertake. I remain hopeful once you have tried to find a better rival you will come to agree with me that t₀ is the most plausible. Unfortunately, we may end up disagreeing, but that is hardly surprising given the controversial nature of the constitutional text with which we have been dealing.