Posted by: captainfalcon | November 10, 2009

A (Quite Tentative) Primer on Primus

Larry Solum’s download of the week is Richard Primus’s (excellent) “Constitutional Expectations.” By my lights, it has one positive and one negative task. The negative task is to confute Originalism. (In its most plausible form, the doctrine (roughly) that judges ought to interpret the Constitution to mean whatever a competent speaker of the framers’ English would have understood it to mean.) Its positive task is to elaborate an alternative (as far as I know, novel) account of how the Constitution ought to be interpreted.

Negative task

Its confutation of Originalism is simple and, I think, undeniable. It runs as follows:

  1. If Originalism is true then neither FDR, Truman…nor Obama has been President. [Premise]
  2. Each one has been President. [Premise]
  3. Originalism is false. [1, 2]

Premise (2) is uncontroversial. Premise (1) is true because Article II, Clause 8 of the Constitution says, “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

It seems likely a competent speaker of the framers’ English would understand this clause to mean that, for someone (a “he,” incidentally) to be President, he must utter the relevant string, viz. “I do solemnly swear…” But every President since FDR* has said “I [e.g. Franklin Delano Roosevelt] do solemnly swear…” So none since Roosevelt has uttered the relevant string. Originalism therefore implies that none has been President.

This strikes me as a successful reductio of Originalism. An Originalist cannot bite the bullet (so absurd a bullet it is that one is at first tempted to think there’s a sleight of hand somewhere in Primus’s argument).  The only move he has open to him is to circumscribe Originalism by, for example, opting to be an Originalist with the exception that he thinks clauses like the aforementioned should be interpreted in some other way. Perhaps this position can be defended, but (a) it is not, strictly speaking, Originalism and (b) it cannot be defended with typical Originalist arguments (such as a text means whatever those fluent in the language it was initially written would understand it to mean; the Constitution is a text; therefore the Constitution means, etc.). Instead, one would have to give more explicitly “results oriented” moral justifications (holding, for example, that, understood (more or less) as Originalism implies it ought to be, the Constitution is more just than on the alternatives).

Primus, however, prefers to proffer an alternative jurisprudenential theory of his own.

Positive task

Primus’s second aim – at least as I read him – is to elaborate an account of how the Constitution ought to be interpreted. (I say “at least as I read him,” because it is also possible that Primus is simply making an observation about how the Constitution is interpreted. I tentatively discount this possibility, however, because he takes too many stands on different substantive Constitutional issues – stands that correspond with what the (what I will call) “expectations approach” entails – for his theory to be purely positive.) His approach, call it the “expectations approach,” says that the Constitution ought to be interpreted to say whatever our “constitutional expectations” imply it should say, where our constitutional expectations are “intuitions about how the system is supposed to work, [which] arise from a combination of experience, socialization and principle” (3). In order to make the text of the Constitution fit our constitutional expectations, “we re-read the text…either by giving new content to specific terms or by deciding that what a textual passage reasonably means is different from what it literally says, [or] sometimes – indeed, more often than most of us realize – [by] just [no longer] noticing that the text says what it does” (5).

Unsurprisingly,** the expectations approach vindicates a number of (sound) Constitutional judgments that Originalism has trouble with: the judgment that FDR was President (to which I’ve already adverted); the judgment that a Representative, selected in a special election in e.g. 2009, should run again in 2010 (despite the fact that Art. I, Sec. 2 of the Constitution says that the House of Representatives “shall be composed of Members chosen every second year by the People of the several States”) (7); and the judgment that the Constitution disallows the President from infringing Free Speech despite the fact that the First Amendment enjoins only Congress (4).

It is to the expectations approach’s credit that it vindicates our paradigmatic Constitutional judgments. (Indeed, any jurisprudential theory that does not is an embarrassment.) But it is not sufficient for the truth of expectations approach that it serves this vindicatory role.  It must also (a) get it right in the “hard cases” and (b) get it right in all cases for the right reasons. Here the expectations approach may run into problems.

Respecting (a), the expectations approach does not yield any results in the hard cases (those on which there are powerful arguments on both sides, and so on which expectations are not settled). While it is possible that, in a hard case, no result is the right result (indeed, Primus seems to be suggesting as much when he urges Congress to delay forcing SCOTUS to consider whether DC can have a Congressional Representative until expectations have shifted in favor of its permissibility), I’m not certain that’s true. (For one thing, I have the Dworkinian qualm of not being prepared to admit that our justice system is a farce by acknowledging that judges who try to decide controversial cases are wasting their time.)

It is also (at least) controversial whether the expectations approach gets things right for the right reasons. According to the expectations approach, the Constitution enjoins x as long as there is an expectation that the Constitution enjoins x. This allows for the possibility that the Constitution enjoins terrible things, simply because the citizenry’s expectations shift in terrible ways. It also allows that what the Constitution means to shift without taking a vote on it, which is arguably an affront to democracy. (On the other hand, is there any way to deny this and still acknowledge the Constitutionality of FDR?)

I close on a cautionary note. It is possible that Primus is propounding a (merely) positive theory of how we actually do go about deciding what the Constitution means. It is also possible that he was propounding a normative theory, but one that is only supposed to operate in certain limited circumstances. (That is, it is possible that he thinks hard cases have a right answer.) I don’t think these possibilities actualize, but I am far from perfectly confident.

* Roosevelt is the Originalist’s nemesis. Serendipitous, then, that his “disregard” of the Constitution should begin at the precise instant he became President.

** The reason it is unsurprising that the expectations approach gels with our Constitutional intuitions is that, more or less, it says the Constitution implies whatever we have an intuition that it implies.

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Responses

  1. Primus notes that “For constitutional expectations to eclipse or to re-cast the text, they must be strongly held or widely shared,” which I believe implies a significantly weaker argument than described. Instead of affirming
    S: “The Constitution ought to be interpreted to say whatever our “constitutional expectations” imply it should say,”

    Primus’ paper merely affirms a weaker
    S’: “Expectations should be considered, and S holds in cases of strong consensus.”

    Which may or may not be true, but it seems trivial to quibble over – it’s only a minor disservice to rephrase it as “if there is sufficient belief that the Constitution implies X to pass a clarifying Amendment, then said Amendment is unnecessary.”

    So I’d say your cautionary note about limited circumstances does seem to have some merit.

    This method also certainly seems democratic, in that the meaning of the Constitution is determined by popular belief about the meaning of the Constitution – which seems a fully democratic process, albeit perhaps a more mystical one than voting.

    The objection regarding enjoining terrible things seems the strongest to me. That objection, by itself, ought to be a death blow to this expectations approach as a normative theory of Constitutional interpretation. For a practical example, consider that it legalizes Executive Order 9066 despite the crystal clear wording of the Fifth Amendment about the matter.

  2. Yeah, “For constitutional expectations to eclipse or to re-cast the text, they must be strongly held or widely shared” does suggest that he affirms something like: (EA’) The Constitution ought to be interpreted to say whatever its text says,* except where (more or less) universally shared constitutional expectations imply it says otherwise, in which case it should be interpreted to say otherwise.

    But consider this. Either there is a (more or less) universally shared expectation that the Constitution enjoins x, or there isn’t. If there is, then Primus (I think) would say that the Constitution enjoins x. If there isn’t (and there also isn’t a shared expectation that the Constitution enjoins ~x, or permits x / ~x), then Primus seems to recommend that SCOTUS wait until the expectations shift (Cf. his section “Timing”). If his recommendation in Timing is the same recommendation he’d give whenever there aren’t shared expectations, then it would seem there are no circumstances in which the expectations approach (at last as Primus applies it) allows the Constitution to enjoin something there isn’t a shared expectation that it enjoins. (At least, it is an odd Constitutional theory that counsels against SCOTUS’s taking a stand on question to which, by the theory’s lights, there is a right answer.)

    What do you think of his argument against Originalism?

    * But what does its text say? There are times when Primus suggests that, too, is a question answered by reference to our Constitutional expectations (see his discussion of hard vs. soft textualism).

  3. Also, this is a good (and brief) introduction to the history of, and best justifications for, Originalism: http://www.aals.org/profdev/constitutional/whittington.pdf.


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