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09/03/2014

Cass Sunstein: There Is Nothing that Interpretation Just Is
Michael Ramsey

Cass Sunstein (Harvard Law School) has posted There Is Nothing that Interpretation Just Is on SSRN. Here is the abstract: 

Some people believe that the very idea of interpretation requires judges to adopt a particular method for interpreting the Constitution. The problem with this view is that in constitutional law, the general idea of interpretation is compatible with a range of different approaches, and among them, none is mandatory, in the sense of having some unique or privileged connection with the general idea. Any particular approach must be defended on the ground that it would make our constitutional order better rather than worse. No one should doubt that there are legitimate questions about the institutional capacities of judges, and about the virtues and vices of a deferential role on their part; the answers to those questions can motivate a view about constitutional interpretation. But they do not depend on an understanding of what interpretation necessarily requires.

I sort of agree with this, and sort of don't.  It depends on what one means by "interpretation."

I would put it this way:

(1) When it was drafted and ratified, the Constitution had a meaning.  We can debate what the best way to find that meaning is (looking at text, looking at intent, etc.).  Perhaps it had more than one meaning, depending on how one defines "meaning."  But in any event, that meaning (or those meanings) became fixed at the time of ratification.

(2) Today, when judges decide what the constitutional rule is going to be, they can (a) try to find and apply the meaning at the time of ratification; or (b) do something else.  I agree with Sunstein that there is no nature of interpretation (no thing "that interpretation just is") compeling our choice.  And I further agree that "[a]ny particular approach [that is, any choice between (a) or (b)] must be defended on the ground that it would make our constitutional order better rather than worse."

(3) In considering this choice, I don't find it helpful at all to debate what interpretation is, or indeed even to use the word "interpretation."  The question, rather, is what judges (and other actors) ought to be doing when they decide the content of a constitutional rule.  To say they should be "interpreting" the Constitution provides no answer, because "interpreting" has contested meanings.  The useful way to think about it is whether they should be finding the original meaning, and if not, what else they should be doing.

(4) However, if judges are not finding the original meaning, they are changing the meaning from what it once was (or, recognizing that the meaning has been changed from what it once was).  That statement doesn't arise from the nature of interpretation; it arises from the nature of meaning.  As a result, they need an explanation for why they prefer the new meaning to the old meaning, and why they are authorized to make that change.

(I am especially influenced in my thinking here by two papers from the February 2014 Originalism Works-in-Progress conference by Larry Solum and Steve Sachs.)