Guest Post: McGinnis & Rappaport, "Sunstein on Interpretive Choice: A Critique"

From John O. McGinnis & Michael B. Rappaport, authors of Original Methods Originalism and many other major articles

In a series of articles, we have argued that the Constitution’s meaning is fixed by the interpretive rules deemed applicable to the document at the time of its enactment. Although the precise content of those original interpretive rules is disputed – whether they focused upon intent, text, purpose, or some combination – these rules embodied a form of originalism. Under this view, the Constitution’s actual meaning does not depend on normative considerations, such as morality or policy. The meaning of the Constitution is one thing. The desirability of that meaning is another.

Recently, however, Cass Sunstein has taken a contrary position, building on arguments developed by the late Professor Richard Fallon. Sunstein’s argument proceeds in two steps. First, he argues that the Constitution does not specify how it is to be interpreted and therefore there is no objective way to determine its meaning. There are many different interpretive approaches that one may reasonably employ. Second, he argues that this plurality yields interpretive choice, which should be made on normative grounds. Hence, to determine the correct meaning of the document, one must consider which interpretive approach would produce desirable results.

Both premises are incorrect. Sunstein’s contention – that the Constitution’s failure to specify how it is to be interpreted means that various interpretive approaches are available to determine its meaning – is mistaken. To start, it is not surprising that the Constitution does not explicitly mention how it is to be interpreted. It is exceedingly rare for an utterance—written or oral—to specify its own interpretive method. But that rarity does not permit interpreters to adopt whatever approach they prefer. The correct method need not be expressly specified, because language does not work that way.

Instead, meaning is determined by language conventions that people follow at the time of an utterance. Those conventions include not merely word meanings and grammatical rules but also interpretive rules. These interpretive rules are often tied to particular situations or documents. Thus, one set of interpretive rules might exist for informal oral conversations and a different set for formal documents. For legal documents, one set of rules might exist for contracts, a different set for statutes, and a related set for constitutions. The key to interpretation – to determining the meaning of these utterances – is to apply the correct interpretive rules to the utterance as determined by existing language conventions. The application of those rules does not require that they be expressly invoked. Indeed, it is rare for that to occur.

It is true that many different interpretive rules and approaches exist. Not only are there different rules for oral utterances and formal written communications, and for various types of legal instruments, there are also varying rules within diverse legal systems. Each of the interpretive rules might have something to be said for it, as suggested by its continued use. Few of them, if any, can be ruled out as obviously mistaken. In this respect, we agree with Sunstein and disagree with Larry Alexander’s view that the concept of interpretation would rule out many of these interpretive approaches.

But the correctness of these interpretive approaches under different circumstances or other legal systems does not make them accurate interpretive rules for determining the Constitution’s original meaning. The correct interpretive rules for the Constitution are the ones deemed applicable to the document at the time of its enactment. That other rules are appropriate in other circumstances or for other documents is beside the point.

Unfortunately, the existence of these other interpretive rules has led Sunstein and other commentators into a basic error. Believing that alternative interpretive approaches are available, they argue that interpreters have a choice in selecting which interpretive approach to adopt. As Sunstein writes, the “meaning of the Constitution must be made rather than found.” And they contend that interpreters should make that choice on normative grounds – on what would make the Constitution most desirable. But once one realizes that interpreters do not have a choice in determining the meaning of the Constitution, the relevance of these normative considerations for interpretation evaporates.

We do not want to be misunderstood. We recognize that there can still be disagreement about particular interpretive rules. But disagreement does not imply normative indeterminacy, especially when there was a general method at the time of enactment for resolving such disagreement. We have shown elsewhere that there was such a method. Interpreters would determine based on the common law method in the case of a dispute, weighing evidence and choosing the better supported rule. And, as a matter of fact, there was substantial agreement on most key interpretive rules of the time.

Nor do we deny that one can ask serious normative questions about interpretive approaches. We have written a book arguing that following the Constitution’s original meaning is normatively superior to engaging in living constitutionalism. Moreover, if one concluded that the Constitution’s original meaning was seriously undesirable, then that might suggest the nation should amend or replace it. Under some theories at least, a conclusion that the original meaning was normatively abhorrent might justify government officials not following it.

But these normative claims do not affect the meaning of the Constitution. That meaning hinges on the interpretive approach at the time, not on the contemporary approval or disapproval of that approach or the content it yields.