Wednesday, August 7, 2013

The Flexible Constitution

Sean Wilson's book The Flexible Constitution is a pleasure to read, which is not something I expected to say about a book on constitutional interpretation. It's very clear, full of examples and diagrams to illustrate its points, and a quick read.

So what is it about? Near the end Sean writes that:
scholars of all stripes in the American academy [are] suggesting to one another that the "true meaning of the law" is found in the secrets one can unearth about historical lives, debates, speeches, and so forth ... I wrote this book because I desperately wanted to see this conversation end.
He's unlikely to get his wish, but he presents a good case. It's unlikely to work because one book rarely silences a whole crowd, and because I think to have any chance of doing this he would have to engage in more detail and at greater length with his opponents than he does here. Perhaps he'll write a sequel that does that.

He rejects the idea that the US Constitution means what its framers had in mind when they wrote it on the grounds that we can't know what they were thinking, they may have been thinking different things, and it makes more sense to be guided by what they wrote and agreed on than by what they were thinking as they did so. He rejects the idea that it means what it meant when it was framed on the grounds, roughly, that it doesn't say so but, on the contrary, is written in ordinary language and so, presumably, has a non-technical, hence non-rigid, hence flexible meaning. The Second Amendment might provide a useful example. It would be silly to take the "right to bear arms" to refer to a right to carry only muskets and the like on the grounds that this is what "arms" meant to the people of 1791. (It wouldn't necessarily be silly to argue that we should interpret it this way in order to protect lives, but it would be silly to think that this is the only correct interpretation regardless of the consequences.) Similarly, Sean argues, it is silly to think that we should take words like 'equality,' 'citizen,' and 'cruel and unusual' as meaning only exactly what they meant (designated, referred to) to people in the United States in the late 18th century.

History matters to constitutional interpretation only in the sense that if, say, the word 'arms' ceased to mean weapons at all then we would have to bear in mind that it did mean weapons, and not just limbs, in 1791. I think Sean acknowledges this point in his Twist example on p. 193, but he doesn't spend a long time on it. So history does matter, but it isn't the only thing that matters. Because the Constitution lacks much definition and technical language, it is open to interpretation. Which interpretation is correct? In a sense the answer is none. To think otherwise would be to pretend that the openness or flexibility is not there. But the best interpretation will be, Sean argues, the one that both makes a proper use of the words of the text and provides the best and most coherent account of the ideas contained in the document. I'm no expert, but this all sounds about right to me.


  1. But the best interpretation will be, Sean argues, the one that both makes a proper use of the words of the text and provides the best and most coherent account of the ideas contained in the document.

    Definitely a book to read, but I do wonder about this. I would say that to interpret a text that is morally or politically controversial, like the US Constitution is, is always to make a value judgement. Indeed, even to call something "the best interpretation" is to express a value judgement about the interpretation itself. And considering Wittgenstein's Lecture on Ethics conception of value and its expression in language, I'm not sure there is much that is specifically Wittgensteinian to say about this.

    But there is one Wittgensteinian thing about which I want to say a bit. "If language is to be a means of communication there must be agreement not only in definitions but also (queer as this may sound) in judgements" (PI §242). What I want to say (roughly) is that in the case of constitutional language, the "judgements" here covers value judgements as well.

    Think, for instance, of the much quoted remark that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society" (Trop v. Dulles, 1958). This already implies agreement not just in the "main" value judgement expressed, but also in the implicit judgements that society is in fact maturing and that standards of decency are in fact evolving.

    We can imagine a "right-wing", cultural pessimist, such as Wittgenstein himself, opposing Trop because he disagrees with the whole suggestion that society is maturing, and finds it presumptuous and self-congratulatory. Or we can imagine a "left-wing", sociological pessimist saying that standards of decency are only evolving part of the time (e.g. the 1950s and 1960s, so far the last hurrah of American liberalism) and are in fact regressing or stagnating much of the time. This could lead to a rejection of Trop on the grounds that it requires, by parity of reasoning, a constriction of Eighth Amendment rights when standards of decency are regressing. (Indeed, there is a case for saying that such a constriction has in fact happened in the Supreme Court's Eighth Amendment jurisprudence since the 1970s, the door to it having naively been left open by the form the argument takes in Trop.)

    Rather than refer to Wittgenstein, I would see constitutional interpretation as an Austinian speech act: the view that gets a plurality of justices behind it is declared by them to be the law of the land, under the powers vested in the plurality by the Constitution itself. To speak of "interpretation" as if it were an interpretation of symbols, such as words, is perhaps itself already misleading, because the court makes orders to be acted on ("Bring me a slab!"), not claims to be believed.

    This all sounds very Geussian, and is. But I hope it also sounds Wittgensteinian, or at least as Wittgensteinian as what seems to be a competing use of Wittgenstein in the book.

    (On the other hand I just now looked up, on Amazon, page 193 with the "Twist example" to which you refer, and it may be that the book is getting at much the same thing as I am, only using a completely different Wittgensteinian train of thought.)

  2. I would say that to interpret a text that is morally or politically controversial, like the US Constitution is, is always to make a value judgement. Indeed, even to call something "the best interpretation" is to express a value judgement about the interpretation itself.

    I agree. And I think Sean would too.

    The argument of the book is certainly intended to be Wittgensteinian, but it focuses (understandably enough) more on contemporary American legal thought than on Wittgenstein, so it's hard for me to say for certain whether I completely agree with his interpretation of Wittgenstein or not. It seems at least roughly right though. And yes, you might be saying the same thing in a different way.

  3. I’m intrigued by a formulation in Duncan’s blog:
    According to Sean Wilson “it is silly to think that we should take words like 'equality,' 'citizen,' and 'cruel and unusual' as meaning only exactly what they meant (designated, referred to) to people in the United States in the late 18th century.”

    Well, what did they mean (designate, refer to) for them? What sort of question is that? For simplicity’s sake, let’s switch to the word “arms”. Should we approach the question extensionally: “’arms’ were those and only those concrete objects to which individuals living in the late 18th century actually referred to by the word”? One might perhaps try to think of that as a closed set. But that seems intolerably narrow. The word would certainly have to be taken to have meant any object they *would* have included under “arms”.

    But now the category becomes pretty elastic. How an average 18th century American would respond to a given object would presumably depend on the circumstances in which it was introduced to him, what he was told about, what the object could do (he might not recognize a Kalashnikov as a gun on sight, but might change his mind on seeing it fired – although the possibility remains, of course, that he would say: “this is just too different – here I’d prefer to use a different label”).

    Differently put: though he may not have thought that a gun could fire automatically, it doesn’t follow that he thought something that could fire automatically was not a gun.

    The upshot, I take it, is that the distinction between “their concepts” and “our concepts” is not as straightforward as it may seem it first.

    P.S. Tommi: are you saying the justices are free to stipulate whatever is to follow to from the law? That would entail that there could be no discussion of their verdict. To say “they got it wrong” would mean: “they didn’t decide what they decided”, which would be self-contradictory. Don’t we want to retain a space for discussion and disagreement here?

    1. It's the intolerably narrow, extensional approach that Sean rejects as silly, I think. But if we ask instead what 18th century Americans would have counted as arms, or as equality, or whatever, then the answer is less clear, as you say. And I think his main negative or critical point is simply that it isn't clear, that appeal to "what this term would have meant to 18th century Americans" does not provide an unambiguously correct interpretation of the Constitution.

      He spends less time on how else we should interpret it instead, but he believes in legal connoisseurship, the ability to know what is best given the wording of the document, legal precedent, and the likely effects of each possible interpretation. I'll alert him to this discussion, and perhaps he will join in.

  4. Of course there is room for disagreement. This is already shown by the fact that the justices who are left in the minority are free to publish their dissents from the court's opinion, and are even expected to publish them. But the majority's opinion is still the law of the land and the minority's opinion is not. So, I'm not saying that "the justices are free to stipulate whatever is to follow to from the law". What I wanted to say was rather that the justices are, in some important sense, the only people in the country who are free to stipulate even within strict limits what is to follow to from the law.

    My comment was motivated by the following train of thought. In one important sense (which of course is not the only one), there cannot be a "Wittgensteinian philosophy of law" the way there is, for instance, a "Wittgensteinian moral philosophy". The task of Wittgensteinian moral philosophy is to try to do justice to the infinite variety of moral responses which different people may have even to exactly the same situation. But the purpose of the law is deliberately to privilege certain responses over others – and to ensure that the privileged responses are the only ones that are acted on in the political community, no matter which other responses anyone might have privately.

    And the law is considered good law in the first place only inasmuch as it succeeds in this privileging. A law may leave more or less space for the heterogeneity or "messiness" of human affairs (for instance, in explicitly permitting exceptions from itself). But a law whose provisions themselves are heterogeneous or messy, in the way the human affairs are, is viewed as bad law on that account – and as a threat to the principle of rule of law (Rechtsstaatsprinzip).

    None of this implies by any means that Wittgensteinian moral philosophy is wrong (or, for instance, that I have abandoned my earlier personal sense of identification with it). It would only seem to mean that there cannot be a philosophy of law that is directly analogous to it.

    To me personally, this has posed a very real and very hard problem, which I have been thinking about probably more than any other philosophical problem in recent years. For more than six months now, I have been writing a rather long paper on this (or rather on two or three interrelated themes, of which this is one). I will be finishing it soon, and I will then send it to both of you for comments.

  5. Hi everyone! I really wanted to thank Duncan and Tommi and Lars for offering thoughts about my book. Just to clarify, there is a summary of the book in this interview:

    The first part of the book shows how a constitution written in ordinary (plain) language should be interpreted in a legal culture such as America's. The second part of the book shows why originalism is a seriously flawed, and ultimately a dogmatic, approach.

    Duncan: regarding Twist and "arms," you are right that I see history as being legally authoritative in only one instance: to clear up what I call "polysemy" in chapter 6. Pages 81-84 discusses why "arms" could never mean "limbs," and can only ever mean the kind of things that could be successfully spoken about when talking about weaponry.

    Tommi: Dworkinians think legal judgment is about moral reasoning. I say that it is ultimately an aesthetical judgment. Justices have to develop a really good "eye" for their subject (not saying they ever do!). The book interview I cited to above explains this better.

    Also, on the issue of what happens when culture declines instead of progresses, my view is tricky. A backward culture would have no choice but to have backward legal rulings, provided the best that the culture had (intellectually) was destined to stay that way. A key feature in my view is that good legal connoisseurship requires that law fit society, using the best that its intellectual culture has. This is complicated, but it's explained in Chapter 7 and in the book interview.

    Lars: On the issue of how the past might have thought about "arms," my book offers several points. First, the issue is not what they thought about "arms;" the issue is whether the Court's proposed use (today) could be understood in the language games of the framing culture. If George Washington could understand what the term "arms" meant when we spoke of an automatic weapon being one, then this use could be chosen by a judge. Note that this would mean the opposite ruling could also be chosen, for it, too, would surely would be intelligible to the past (meaning is use). See Chapter 5.

    Also, regarding what anyone, past or future, thinks of "arms," one should be mindful of Dworkin's distinction between concepts and conceptions. I try to improve upon this in chapter 2, where I lay out 3 units of analysis, not two (concepts,criteria and instantiations). We can speak of arms conceptually, criterially (administratively) or instantially.

    Finally, I do think the talk of "what they thought" versus "what we think" about words is very misguided. I spend a great deal of effort all throughout the book trying to dispel this charm.

    I hope these comments have helped!

    1. Sean –

      Thank you for the link. As far as I can tell, your position seems sound. The analogue between legal decisions and aesthetic judgments is interesting (Wittgenstein makes the opposite comparison, of aesthetic argument to legal argument in, I think, the Moore lectures.)

      I shouldn’t have barged in without knowing more about the discussion. I simply wished to make the point that we should resist the idea of concepts being entities residing in people’s minds.

      Could your point be made more accurately by saying that originalism isn’t wrong so much as failing to say anything?

    2. Hi Lars.

      I thought your "barging in" to be quite good, actually.

      I'm not sure about your last sentence, though. I'm more inclined to say that originalism is an ideology, in that what it manufactures is purposely contrived. Strictly speaking, of course, claims about "their meaning" of (e.g.) "arms" may indeed fail to say anything helpful. I think this was your point. But in the hands of the confused, it provides a great deal of mischief. In fact, the false pictures that become conjured among the natives is precisely the goal. They start behaving toward the Constitution as though it were a scripture. The confusion causes a completely different behavior-orientation than what is in place when, e.g., someone like Dworkin goes about reading the document.

      Anyway, I've tried to handle your claim as best I could. If you want the book, shoot me an email with your address. Be glad to send it.

    3. I don’t know enough about American constitutional history, but I could well imagine that, as with “literalist” readings of the Bible, originalist arguments will be trotted out whenever it seems to suit the purpose at hand. I.e. in practice it will be a code name for certain political agendas.

      I’d be very glad to have your book.