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The Oath Argument at Sea
Evan Bernick and Chris Green

Charles Barzun, famous in constitutional-theory circles for his attack on Baude-Sachs original-law originalism, takes aim in a post on Balkinization at the oath argument for originalism that one of us posted last week. That argument depends on our jointly-authored draft for its first part. There, we use contemporary and contingent social facts concerning constitutional practice—rather than the general nature of writtenness or “what interpretation just is”—to ground our claims about current constitutional obligations in the nature of the original Constitution. The second part of the argument depends on Green’s premise-seven argument about constitutional indexicals to tie the nature of the original Constitution, not to marks on parchment, but to the meaning those marks expressed in their original context. We hasten to add that the “original Constitution” includes any changes made through processes authorized by the Document ratified in 1788.

Barzun says that linchpin of our argument is premise (4), which says that current constitutional culture thinks that today oath-takers promise to support the same entity—the same Constitution—to which George Washington swore an oath. However, at the very end of his post, he admits that the sociological aspect of (4)—which is all it is intended to cover—is probably true. We are probably right that “most of us today do think that our Constitution is the same as the one at the founding.” This is quite a striking concession for the chief academic critic of Baude and Sachs.

Barzun’s objection is not to (4) itself, but to the use we make of this supposed “sameness” between our Constitution today and the Founders’ Constitution. What is sameness, after all, anyway? More after the jump.

Philosophers have long assessed sameness and identity over time in terms of the distinction between essential properties (which cannot be lost without becoming a different object) and accidental ones (which can). This section of our draft (section III.F) might be hard to follow and is probably written too compactly. At one point Barzun seems to confuse medical survival with metaphysical survival. Even before heart transplants could be performed successfully, human persons were such that having a particular heart was not metaphysically essential. It was, of course, then medically essential in a way it is not now, but human nature has not changed.

Premise (5) states that a constitution with a different portfolio of powers to legally change than “this Constitution” would be a different entity that the latter. That sort of change-in-power-to-change, we argue, would bring about a change in nature. Accordingly, if the Constitution was originally non-living, it’s still non-living; if it wasn’t, then it’s not. Barzun does not say whether he thinks that life has somehow arisen from nonlife. But if he does not, then something like (5) can serve as an equivalent bridge from propositions (4) to (6), which says that our Constitution’s change-portfolio hasn’t expanded.

Like other interlocutors (see here, Michael Dorf, and here at 17:19ff, Brian Frye) Barzun seizes on the puzzles regarding the Ship of Theseus as a model for the Constitution’s identity over time. Is there really any objective truth of the matter about whether a ship’s essence should be tied to its form (i.e., its part-replacement-survivable structure) rather than to its matter (i.e., the collection of planks that compose it)? Doesn’t it just depend on our needs today?

Suppose that Theseus is planning his trip to Crete to kill the Minotaur, and he borrows money from Scirus of Salamis (see here) to buy a ship, hire a crew, and so on. But Scirus takes a security interest in the ship, which is defined in some way—perhaps imperfectly clearly, perhaps favoring form over matter, perhaps favoring matter over form, perhaps something complicated. Along the way, Theseus needs more money and also needs to replace many of the planks of the ship, so he gives a new creditor a security interest in the new planks. He comes back and can’t pay back both creditors; they have to litigate whether the new planks are part of the ship (and so Scirus’s lien has priority) or they aren’t (so that the other creditor does).

Article 9 of the Uniform Commercial Code, of course, has lots of rules on this sort of thing. Section 9-108(b)(2) allows a security interest in a non-specific “category,” but under section 9-108(c) it can’t be as general as “all the debtor’s personal property.” Section 9-204(a) allows security interests in after-acquired collateral. And so on.

We think it’s obvious that the circumstances of the contract between Theseus and Scirus could resolve, in advance, the identity conditions for the ship. They might not, but they could. And of course in unclear cases, a court might use policy considerations to figure out what sense to make of the contract, a la Marshall in 1805 (“[W]here great inconvenience will result from a particular construction, that construction is to be avoided unless the meaning of the legislature be plain, in which case it must be obeyed”) or Madison in 1791 (“Where a meaning is clear, the consequences, whatever they may be, are to be admitted—where doubtful, it is fairly triable by its consequences”). But the historical question of what Theseus and Scirus agreed to might resolve the case on its own. Likewise, the historical issue of whether the Constitution established its own nature at the Founding as a contextually-fixed expression of meaning, as we say it did in premise (7), becomes critical.

Barzun considers the ship’s-lien hypothetical—the descendant of some conversations on Twitter—and says this:

Theseus could not have declared in advance what would preserve the identity of his ship and what would not, because that question is not an historical one but a philosophical one. (Unless, of course, a legal document – say an instrument creating a lien on the ship – makes particular historical facts relevant, but then we’d have to interpret that instrument).

It seems to us that the parenthetical completely undermines the claim in the first sentence. Theseus could have declared in advance what would preserve the identity of his ship in an instrument creating a lien on the ship. Yes, we would have to interpret that instrument, just as we would have to interpret the Constitution’s self-definition in its indexical provisions to evaluate premise (7). But the metaphysical piece of the argument from the same-Constitution-as-Founding claims in current culture, i.e., (4), to the same-essential-attributes-as-Founding thesis, i.e., (6), still seems to us to work. Of course, our ultimate conclusion that officeholders today are bound by the meaning originally expressed by the text of the ratified-in-1788 Document (plus any lawful amendments) depends on (7).

We should note as well that it’s possible that someone like the Dworkin of Law’s Empire who adopted Gadamer’s fusion-of-horizons approach to interpretation might disagree with (7) without doing any investigation of the Founding. If there can be no such thing as a contextually-fixed expression of meaning, then (7) is false. Gadamerians will probably think that originalism is false always and everywhere, because language just doesn’t (ever) work the way originalism says: texts don’t express objective meanings in particular point-in-time contexts, but only in relationship to readers. Green’s arguments here about the details of constitutional self-definition are apt to persuade only those who think that originalism is at worst contingently false, not Gadamerians (or Quineans or Davidsonians or Wittgensteinians) who think it is necessarily so. For our part, we think E.D. Hirsch, relying on Frege on sense and reference (see here at 568-69 n36) responded adequately to Gadamer, and more generally that the Carnap-Grice-Strawson-Chalmers tradition has it right rather than the Gadamer-Quine-Davidson-Wittgenstein one. Of course Hirsch did not persuade everyone, but for those who think that originalism is at least possible, this argument gives reason to think that it is actually true.