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01/26/2018

Victoria Nourse: Reclaiming the Constitutional Text from Originalism
Michael Ramsey

Victoria Nourse (Georgetown University Law Center) has posted Reclaiming the Constitutional Text from Originalism: The Case of Executive Power (California Law Review, forthcoming) on SSRN.  Here is the abstract:

There are consequences to theories in a world questioning the power of the President. For decades, some originalists, including Justice Scalia, maintained that the President enjoys “all” executive power. Of course, this is not the Constitution’s actual text (which refers to “the” executive power, not “all” executive power) — but a highly contestable, and potentially dangerous, addition of meaning to the text. As I demonstrate in this Article, adding to the actual text of the Constitution is common in the originalist literature on executive power, whether the precise question is the President’s removal power, the President’s power to refuse to enforce the law, or the President’s obligations under the Emoluments Clause. Using elementary principles from the philosophy of language — principles that apply to all communication — I explain how originalist interpreters in this area “pragmatically enrich” the text, without articulating or justifying those additions and without seeking to test those meanings against the full text of the Constitution. Before one gets to history, the originalist has assumed a unit of textual analysis — a word, a clause, a paragraph — that may effectively enrich the meaning to reflect the interpreter’s preferred policy position. If this is correct, originalists must theorize the “interpretation zone,” a putatively neutral place from which historical inquiries are launched, and explain why interpreters may add meaning by pragmatic enrichment in this zone — particularly if those meanings are falsified by the rest of the Constitution. Perhaps more importantly, originalism’s opponents need to start talking about how to reclaim the actual text of the Constitution.

(Thanks to Seth Barrett Tillman -- whose work is prominently discussed in the article -- for the pointer).

On a  quick read, I think this article is kind of arguing against a straw man.  I don't think any originalists (or textualists -- the article uses both terms) think that meaning arises only from the literal meaning of single words or single clauses.  Nor would they deny that in reading the words of the Constitution, one finds words and limitations that are implied as well as the ones actually stated.  If one were to put to Justice Scalia the proposition that he added the words "all of" to "The executive Power" in Article II, Section 1, of course he would agree;  indeed, he said as much in Morrison: "[Article II, Section 1] does not mean some of the executive power, but all of the executive power."  As Larry Solum has discussed in various places (see, for example, here) it's inevitable that we add words and limitations that are implied by a communication, in order to give the communication meaning.  If I say "I'm going to have dinner" the obvious implication is (in ordinary circumstances) that this means "I'm going to have dinner soon" rather than "I'm going to have dinner sometime in my life."

Nor would any originalists deny that such implications must be justified.  To the extent "originalist interpreters in this area 'pragmatically enrich' the text, without articulating or justifying those additions and without seeking to test those meanings against the full text of the Constitution" -- as Professor Nourse charges -- then those originalist interpreters are just doing it wrong, and may be criticized on that ground.  But originalist interpreters typically don't find implications without justification.  Rather, they justify the implications they find in the text, Justice Scalia did in Morrison, by reference to the context within and beyond the text.  Professor Nourse may not think the justifications are adequate, but that is a different argument.

Nonetheless, it seems like an important paper because it's worth strongly reminding originalists and textualists (and other readers) that one's initial reading of a text may not be the right one; one should consider the extent to which the initial reading is adding words by implication, as Professor Nourse explains -- and if so, whether the implication is justified.  Although the paper has a hostile tone, originalists need not view its core methodological contention as hostile.

FURTHER THOUGHTS:  On reflection, I'm not sure that Professor Nourse's interpretive methodology, at least as applied to constitutional interpretation, is as benign as I at first supposed.  Some parts of the article appear to suggest that if a text's literal language is ambiguous -- that is, if in her terms it requires pragmatic enrichment -- then the text is irredeemably ambiguous and can only be given meaning through constitutional construction disconnected from original meaning.  I'm not sure if that's what she is saying, and I hope it isn't, because that proposition seems flatly incorrect to me.  Some texts (I would say many texts) whose literal language is ambiguous can be made unambiguous by considering context.  Of course, the consideration of context must be done properly, and in some cases even thorough examination of the context may not resolve the ambiguity.  But he need to consider context does not in itself make the search for a definite textual meaning impossible.