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05/12/2017

TerBeek, Theories, Movements, and Direction of Fit
Chris Green

Calvin TerBeek's post on the supposed origins of originalism, which, as Mike Ramsey noted yesterday, is "interesting, challenging, and scholarly," included one fascinating side comment that I thought deserved unpacking. After referring to Attorney General Meese's July 9, 1985 speech as the point at which, TerBeek says, "self-conscious originalism [was] unveiled as a theory/movement," TerBeek links to a paper by Stephen Teles on the history of Reagan's Justice Department and notes that "the two strands are nearly impossible to separate."

How does one distinguish a theory from a movement? Philosophers' distinction between world-to-mind and mind-to-world directions of fit can help here.

Building on Elizabeth Anscome, John Searle offers this example. Imagine a man sent to the grocery story with a list of items to buy who, as it happens, is being followed by a spy writing down the shopper's purchases.  As the shopper goes around the store finding the items, the spy eventually accumulates a list of items identical to the grocery list. Even though both lists contain the same items and both match the shopping cart, the two lists serve very different purposes and have very different criteria for success.

Suppose the shopper, relatively inexperienced in the ways of yogurt, does something that I, alas, have done: he gets vanilla yogurt instead of plain yogurt, which was on the list. And imagine that the similarly-inexperienced spy makes the same mistake, writing down "plain yogurt" on his list instead of "vanilla yogurt." The two lists are now the same, but the spy's list is flawed in a way the shopper's list is not. If the spy gets close at one point and sees that the yogurt in the shopper's cart is actually vanilla, he can cross out "plain" on his list and write "vanilla." But if the shopper looks down at his cart and notices that he has gotten the wrong kind of yogurt, he cannot simply edit his shopping list to match the cart.  Why not? Because a shopping list has a "world to mind" direction of fit: the point is to make the world--the shopping cart, and eventually a refrigerator--match the desires of whoever composed the list. But the spy's report has a "mind to world" direction of fit: the point is to accurately understand what the man is buying.

A successful theory has a mind-to-world direction of fit: the point is to accurately capture or describe some subject matter. But a successful political movement has a world-to-mind direction of fit: the point is to change culture, political decisionmaking, or the like to match one's desires. Unsuccessful constitutional theories fail to match the actual requirements of the Constitution; unsuccessful political movements fail to transform the political-cultural environment the way its members had hoped. A political movement is like a shopping list; a constitutional theory, as I see it, is like a description of reality.  There is a difference, that is, between originalism failing to capture the imagination of legal elites--the failure of the movement--and originalism failing to capture the actual Constitution--the failure of the theory. If the theory fails (for instance, if the theory fails to match what Madison thought, and the theory also makes Madison's thinking critical, or if the theory blurs sense and reference, or whatever), then the theory can be revised to match the reality in order to survive as a viable theory. The point is for the theory to match reality. Not so for political movements: if it turns out that the movement has not produced its intended effect, the movement cannot simply aim at something else and then declare itself a success; the whole point is to get the world to be a certain way.

Perhaps TerBeek views the success conditions of constitutional theory--or the aims of originalists--differently than I do.  I would evaluate a constitutional theory based on whether it matches our constitutional truthmaker, and he might not (or might not understand originalists to be attempting to do so). That difference may contribute to TerBeek's difficulty in distinguishing originalism-the-theory from originalism-the-movement. But difference in direction of fit is one simple way to distinguish them.