(Don't worry this will be the last post about legal interpretation for a while...)
Over the course of the previous two posts I looked at the phenomenon of pragmatic enrichment and the role it might play in legal interpretation. To quickly recap, pragmatic enrichment arises when the meaning of an utterance is enriched by the context in which the utterance was made. In other words, when the meaning of the utterance is different from, or extends beyond, the semantic content of the words and sentences that make up the utterance.
For the most part, pragmatic enrichment is an uncontroversial aspect of everyday conversation. But it is much more controversial in the legal context. One of the reasons for this is that legal “conversations” (i.e. communications between legal drafters, ratifiers and applicators) are governed by different norms and expectations.
This feeds directly into the debate over constitutional originalism because originalism is, if nothing else, a theory about how the legal content of the constitution is pragmatically enriched by the context in which it is drafted and ratified. This seems like an obvious claim, but, perhaps surprisingly, originalists disagree considerably about the degree to which pragmatic enrichment plays a role in their theories.
One originalist who has paid particularly close attention to this issue is Randy Barnett. In his article, “The Misconceived Assumption about Constitutional Assumptions” he tries to walk a very fine line, distinguishing between the appropriate and inappropriate degree of pragmatic enrichment (although, as per usual in the literature, he doesn’t employ this terminology). Specifically, he holds that pragmatic enrichment plays an important role in determining the meaning of ambiguous constitutional language, but a far less important and more controversial role in determining the meaning of vague constitutional language. Indeed, Barnett holds that the interpretation of the latter is determined more by reference to moral and political concerns.
In this post, I want to look briefly at the main argument Barnett offers in support of this view — something I call the “Failure is not an option”-argument. Although this argument gives us some reason for thinking that pragmatic enrichment is ineliminably moral/political in the constitutional context, it is also difficult to reconcile with other aspects of Barnett’s constitutional philosophy. I want to draw attention to these inconsistencies.
The remainder of the post is divided into three sections. The first gives an overview of some of the key concepts employed by Barnett. The second outlines the “Failure is not an option”-argument. And the third highlights the inconsistencies alluded to above. The post is intended to raise issues that might be worth pursuing, not to definitively argue for a particular view on this matter.
1. Key Concepts and Terms
The following are definitions of four key concepts employed by Barnett in his analysis and defence of originalism. The first two concern different judicial tasks associated with written legal texts. The last two concern different linguistic problems that arise with written texts.
Interpretation: This is the activity of discovering the semantic meaning of language in a given context. According to Barnett, this is an empirical not a normative task. This is because “words have an objective social meaning at any given time that is independent of our opinions of that meaning”.
Construction: This is the activity of applying the semantic meaning to a particular factual circumstance. This can often involve going beyond the semantic content of the text, and into the construction of novel legal tests for ensuring that the semantic content is adhered to in a particular set of cases. According to Barnett, this is largely a moral-political task, not an empirical one.
Ambiguity: This arises whenever a word or phrase has two or more generally accepted meanings. For instance, in the request “Could you give me a ring?” the word “ring” is ambiguous. It could refer to a telephone call or a piece of jewelry. According to Barnett, ambiguity is often (though not always) resolved by examining the context in which the ambiguous phrase was used, e.g. the right to “bear arms” under the 2nd Amendment.
Vagueness: This arises whenever a word or phrase has fuzzy or imprecise boundaries of application. For instance, the phrase “reasonable conduct” is vague because, although there are undeniably clearcut cases, the border between reasonable and unreasonable conduct is very fuzzy. Indeed, it is the subject of much reasonable disagreement.
These four concepts are the backbone of Barnett’s version of originalism, which may be summed up in a simple slogan: “Originalism is (primarily) a theory of constitutional interpretation, not a theory of construction”. In other words, what originalism gives us is a theory for the discovery of meaning, not a theory for the just and proper application of the law. That’s not to say that originalism cannot be defended on moral-political grounds (I considered arguments about this before), but it is to say that that’s not what it is primarily about.
Ambiguity and vagueness feed into this picture in the following manner. Because Barnett thinks that interpretation is about figuring out the meaning of a text in a particular context, and because he thinks ambiguity is usually created by a lack of knowledge about the contextual background to an utterance, he thinks that originalism has a role to play in resolving issues of ambiguity (though note: he thinks there can be cases of “irreducible ambiguity”). Vagueness is quite a different matter. The uncertain boundaries of application are typically inherent to the words in question, not matters that can be cleared-up by reference to contextual factors. Thus, originalism has much less to say about the resolution of vagueness.
As is clear from this description, Barnett thinks that there is some role for pragmatic enrichment in legal interpretation. Indeed, he embeds this into his very definition of the interpretive task, holding that it involves ascertaining meaning in context. But he doesn’t seem to think it has a greater role to play. This puts some distance between him and other originalists (for instance McGinnis and Rapoport) who think that the original context enriches meaning to a much greater extent. Indeed, they argue that all manner of background assumptions, active at the time the constitution was ratified, must be factored-in when determining its meaning.
Barnett thinks that expansive claims of this sort are flawed. But why? We are about to see.
2. Constitutions and Failure is Not an Option
One of Barnett’s central contentions is that confusion over the proper scope of pragmatic enrichment is caused by an improper analogy between constitutions and contracts. On the face of it, the analogy is not too surprising. As many will be aware, the social contract tradition in political morality often draws explicit parallels between ordinary contracts and constitutional texts. The argument being that coercive governmental actions are legitimate only if they are (or hypothetically can be) consented to by the people. And since ordinary contracts create obligations through consent, it is often felt that constitutional texts can only legitimately do the same if they are consented to as well.
While this might be a useful heuristic device for thinking about political morality, and while it might — in the hands of the right theorist — provide a credible basis for political morality, the analogy between constitutions and contracts often breaks down. For one thing, it is extremely rare — indeed, I’m not aware of it ever having been the case — that a constitutional text is consented to by everyone in society. At best they might be consented to by a majority, and even then the majority might be a historical reality, not a contemporary one. This undermines the claim that constitutional legitimacy is or can be based on consent.
But what does this have to do with originalism and interpretation? The answer actually brings us back to Marmor’s argument from my earlier posts on pragmatic enrichment. Marmor’s argument was that pragmatic enrichment is relatively uncontroversial in ordinary conversations because they are governed by a discernible and generally agreed-upon set of norms (Grice’s cooperative norms), but that the situation is very different for legal “conversations”. Barnett essentially makes the same point but uses ordinary contracts as a stand-in for ordinary conversations, and then draws attention to an important point about contracts, namely: failure is an option when it comes to contracts.
Barnett’s point is that contracts are negotiated between parties in the rough equivalents of ordinary conversations, and that contractual obligations are conditional on consent. There are usually relatively few parties, they share many background assumptions, and these assumptions rightly feed into the interpretation of contractual terms. Hence, pragmatic enrichment can play a significant role in determining the meaning of contractual terms, even vague ones. But even if all the features that typically allow for pragmatic enrichment to take place break down in ordinary contracts (as they sometimes do) it’s not a major problem. We can simply say consent is lacking, and so courts can unwind contracts and disengage parties from their mutual obligations. In other words, if it turns out that parties did not share the same assumptions about their contract, it’s not the end of the world. The contract does not have to succeed.
A constitution is a different beast. It cannot really derive its legitimacy from the consent of the citizenry because, as outlined above, this is almost always lacking. Furthermore, when it comes to the constitution, failure is not really an option. The constitution has to create the conditions necessary for the citizenry to live together. It has to keep the polis in one piece. This means that non-consent based moral-political criteria should really take precedence when it comes to the application of vague terms. This is the “failure is not an option” argument.
3. Some Tensions in this View
I think there are some admirable features to Barnett’s analysis. For one thing, it is commendable for the fact that it is one of the few pieces of originalist scholarship that really tries to get to grips with some of the underlying philosophical problems with pragmatic enrichment. All too often, originalists assume that background assumptions can uncontroversially enrich the meaning of the constitutional text. Barnett is at least aware of the difficulties that arise.
Still, there are some tensions within his view. As noted above, despite the “failure is not an option” argument, Barnett still thinks that pragmatic enrichment plays some role in the semantic content of the constitutional text, and he still thinks that this semantic content sets the constraints within which moral-political construction can take place. This in itself creates a tension between his moral-political views about constitutional legitimacy and his semantic views about constitutional interpretation.
Perhaps as a direct result of this, he seems inconsistent in his approach to vagueness. An obvious example of this is his approach to the Ninth Amendment of the US Constitution. I have quoted this amendment several times before, but once more won’t hurt:
Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Clearly, this implies or presupposes the existence of some rights that are “retained by the people”. That much seems fair. But, prima facie, the phrase “rights retained by the people” seems vague. The set of rights people hold is in flux, particularly if we adopt an interest-based account of rights (i.e. if you have an interest in X it is possible to have a right to X). Given this prima facie vagueness, one might suppose that this an area of constitutional debate that is ripe for moral-political construction, not empirico-historical interpretation.
That’s not how Barnett sees it. He thinks the phrase “rights retained by the people” has a reasonably precise historical meaning, and he tries to reconcile this with his stance on vagueness. He says:
”On the other hand, the original meaning of some allegedly vague terms may convey considerably more information than is commonly thought. For example, textual and historical context shows that the original meaning of “rights…retained by the people” referred to natural rights, which were liberty rights.”
In other words, in at least some cases, historical semantic desiderata can constrain the boundaries of application for seemingly vague terms.
The difficulty I have with this is that it although it makes a certain amount of sense, and although Barnett has a considerable degree of historical evidence to back up his claim, it seems inconsistent with his claims about constitutional legitimacy and consent. He seems to abandon his critique of excessive pragmatic enrichment when he thinks the historical evidence is sufficiently widely-agreed upon, or sufficiently overwhelming, to favour a particular, enriched reading of a vague provision.
I’m sure what’s going on here is a kind of reductio-esque rejection of an alternative, moral-political construction of that provision. In other words, Barnett is saying something like “Since everyone agreed that the rights in question referred to liberty rights it would be absurd or bizarre to deny that that is what the particular textual provision means”. This is a very tempting way to approach constitutional meaning. But I’m inclined to question it. Marmor suggests in his work, that the reason reductios of this sort are appealing is that we readily cling to a normative view of the constitutional conversation, one that necessarily commits us to historical rules and principles. However, this commitment must still be recognised as a normative view about how the constitutional conversation ought to work. It can be challenged on normative grounds, particularly if you think ongoing renewal or faith in the constitution is needed to sustain its legitimacy.
To put it another way, the divide between interpretation and construction in Barnett’s theory may not be sustainable. It may be that interpretation is ineliminably bound-up with a particular moral-political view about the purpose of a constitution. A view that can be challenged.