Mitchell Berman & Kevin Toh: Pluralistic Nonoriginalism and the Combinability Problem
Mitchell N. Berman (University of Texas School of Law) and Kevin Toh (San Francisco State University) have posted Pluralistic Nonoriginalism and the Combinability Problem (Texas Law Review (Forthcoming)) on SSRN. Here is the abstract:
The commonly-held assumption that there exists a genuine dispute between originalists and nonoriginalists can appear surprisingly infirm when closely scrutinized. Many contemporary originalists speak in terms of what the constitutional law is or consists of. Their claim (to a first approximation) is that the original public meaning of the constitutional text is our ultimate constitutional law. In contrast, most contemporary nonoriginalists tend to speak in terms of what constitutional interpreters should do. These nonoriginalists (often termed “pluralists”) urge that judges do and should decide cases based on a variety of considerations or facts, including: semantic facts concerning what the constitutional text means; historical facts regarding what courts and other state actors have said and done in the past; sociological and psychological facts about present-day Americans' behavior and thoughts; moral facts regarding what justice demands; prudential facts regarding what would make the legal system work better; and so on. In short, originalists seem committed to a theory of law, whereas nonoriginalists appear to advocate a theory of adjudication, and the two need not be construed as incompatible.
In order to determine whether originalists and nonoriginalists really do disagree with each other, it will be useful to translate nonoriginalist views about what judges should do into claims about what the constitutional law is. In this essay, produced for a symposium on “constitutional foundations,” we attempt to effectuate just such a translation — that is, we devise an explicit nonoriginalist conception of constitutional law that can serve as a clear competitor to the originalist conception. According to the conception of law that we deem faithful to the spirit of nonoriginalists' adjudicative prescriptions, the constitutional law consists of some combination of semantic, historical, sociological, psychological, moral, and prudential facts. Some influential originalists have already anticipated such a nonoriginalist conception of law by arguing that any such combination of different kinds of facts suffers from incoherence, impossibility, or some analogous fatal defect. “The combinability problem” is the name we give to this problem that allegedly ails all pluralist nonoriginalist conceptions of law. We disambiguate several versions of the combinability problem and disarm each in turn. Furthermore, with a view toward blunting what we consider the most potent version of the combinability problem, we offer an avowedly tentative and very partial enumeration of the ultimate legal norms of the American legal system.