Double Aspect

Suppose you want to write about how officials—especially, but not only, judges—interpret or ought to interpret constitutions. You probably need to make a list of options—of theories of constitutional interpretation—at some point, just to figure out what to discuss. Or at least that’s how I’ve gone about it recently. (The occasion will be revealed in due course, but not in this post.) But it turns out that making this list is a more difficult question than it might seem.

If one were inclined to really be tart about this, one would be tempted to say that this is only natural, because the list would need to have as many entries as there are constitutional interpreters. Perhaps many more, indeed, because individual interpreters—even judges ostensibly bound by stare decisis, to say nothing of legislators and bureaucrats—are idiosyncratic and inconsistent. They do whatever comes to mind in one case, and then something else in the next. And meanwhile theorists who write about constitutional interpretation keep coming up with new approaches under new labels, subtly different from those of their colleagues—just different enough, a cynic might say, to justify a new publication.

There is, I am afraid, a degree of truth to these accusations. Still, they strike me as too tart. Of course, theories of constitutional interpretation are just somewhat abstract models and real-life decision-making will never fit them perfectly. And of course the the academic quest for intellectual clarity, normative attractiveness and perhaps, yes, publications too, keeps generating new theories that add themselves to the existing ones, whose proponents seldom concede refutation. But even so, the reasoning patterns of judges—even the relatively unselfconscious ones, like those of the Supreme Court of Canada—as well as the various academic theories tend to cluster into some broad groups, whose members share important similarities whatever inconsistencies or subtle distinctions may also exist among them. The question is: what are these broad groups, and how many of them are there?

The easy part of the answer to this question is originalism. Both supporters and critics will agree, I think, that it is a distinctive family of interpretive theories. They are united, as Lawrence Solum has argued, by their acceptance of the “fixation thesis”, according to which the constitution’s meaning is fixed at the time of its enactment or ratification, and the “constraint principle”, which holds that this fixed original meaning is, at least so far as it goes, binding on interpreters. Originalists can disagree about much else—exactly how the original meaning is determined, does it even run out, what is an interpreter to do if or when it does—but they agree on this much, and this makes them a somewhat coherent and distinctive set.

With everyone else, things are more complicated. It doesn’t help that the other theories, though not exactly unwept and unknown, are like the brave men who lived before Agamemnon in that they lack a Professor Solum. Perhaps everyone who rejects the two tenets of originalism is therefore simply a non-originalist or a “living constitutionalist”. People sometimes write in this way, not least Professor Solum himself in an article on what he terms “the great debate” between originalism and living constitutionalism. But for my part I do not find this very satisfactory. Even sacred bards nod, Horace assures us, and so, perhaps, does Professor Solum. He acknowledges after all that “differences among the particular forms of living constitutionalism”—of which he counts no fewer than 11, some of them with multiple variants of their own!—”are fundamental and radical”.

That being so, more would be lost than gained when these different non-originalist theories were lumped together for any purpose beyond contrasting them with originalism. This would be similar to what too many people are doing to “natural law”—treating it as a sort of residual category that includes quite different theories whose main if not only commonality consists in them all rejecting a different approach. The theories of John Finnis, Lon Fuller, and Ronald Dworkin share relatively little beyond their rejection of legal positivism—they have fundamental and radical differences, one might say—and the latter two are ill-served by being treated as if they were branches of the former. And legal positivism, which they all reject, at least deserves to be treated as a kind of reference point—deserves because of its dominance, not necessarily correctness. Originalism, despite its correctness, has not earned such privileged treatment, certainly not outside the United States.

All that said, Professor Solum’s discussion hints at a real difficulty. One cannot conveniently describe a dozen different theories in any depth, even in a book, let alone an article, and least of all if one also has some other point to make (as, for instance, Professor Solum does in his piece). One is reminded of Isaac Asimov’s story in which Aaron badgers Moses to trim down the creation story from billions of years to something more manageable in view of papyrus prices.

What is a week to judges or constitutional theorists? Will Waluchow and Dimitrios Kyritsis, the authors of the Stanford Encyclopedia of Philosophy’s entry on constitutionalism, have included sections on three interpretive theories: originalism, living constitutionalism, and moral readings. For what it’s worth, I had come up with the same list when I started thinking about this issue before looking at the SEP entry. Dworkinian moral readings, which are on the one hand at least supposed to be rooted in a political community’s past choices and on the other, to focus on deep moral principles rather than the expediency of the moment, strike me as sufficiently distinctive from a more freewheeling present- and future-oriented living constitutionalism to merit their own account. This also has the benefit of making room for “common good constitutionalism”, which is Adrian Vermeule’s right-wing version of moral readings (though Professors Waluchow and Kyritsis take a somewhat different approach, while an American critic has pointedly dismissed it as “living common goodism“).

But this three-part classification will not satisfy everyone either. Many Canadian readers, for instance, and perhaps some others too, will wonder why it does not acknowledge purposive interpretation. This is, ostensibly, the leading interpretive method employed by Canadian courts, though sometimes, as in R v Comeau, it is said to be no different from living constitutionalism. I cannot speak for either Professor Solum or Professors Waluchow and Kyritsis, who do not list or discuss purposivism as a (potentially) distinctive theory. But for my part, I am inclined to think that precisely this is the issue: purposivism isn’t a distinctive and (semi-)unified theory in the way originalism is, its internal complexities and debates notwithstanding. Purposivism dissolves at one end into textualism and originalism (as I have argued is the case in many recent Supreme Court cases) and at the other into living constitutionalism. But this is not the place to develop this argument, and I am content to note that it will not persuade everyone.

Similarly, I would not regard various deferential approaches, such as Thayerianism or representation-reinforcement, as deserving to be treated as distinctive interpretive options. Of course, deference in its many guises is something judges have to consider applying when deciding cases, but it is, to my mind, a technique of adjudication as opposed to interpretation. A judge inclined to defer always and absolutely, if such judges exist, has no need to interpret the constitution at all. A judge inclined to defer in some limited set of circumstances (as on the representation-reinforcement approach) or to a limited extent must still interpret the constitution in order to know when and how to intervene. Deference does not tell the judge how to do that, though it might rule out some of the more adventurous forms of living constitutionalism or moral readings. Again, though, I suspect that not everyone will share my view.

And all this ignores some niche theories, which I suspect few people actually subscribe to. Non-originalist textualism might be one example; what Professor Solum terms “extranational constitutionalsim”, another. I think it makes sense to leave them out of a small-scale map of the land of constitutional interpretation, but a closer-to-the-ground survey would reveal them, and who knows what else besides.

I’m not sure how much this matters in the real world. Perhaps this is simply a case of academic obsession with classification, though, to come back where I started, the classification does matter to how one structures one’s writing on these topics. But it might, at least, matter more broadly — maps shape how we think about the real world.