Thursday, February 11, 2010

Originalism Works in Progress Conference at USD
Mike Rappaport

This past weekend the Center for the Study of Constitutional Originalism at USD held its first Originalism Works in Progress Conference.  The conference brought a range of scholars to San Diego to discuss 7 papers on originalism.  The papers included attacks and defenses of originalism, as well as inquiries into the original meaning of various constitutional clauses both by originalists and nonoriginalists.

This was the first conference I had ever organized.  Mike Ramsey and I put the conference together, and let me tell you, running it required an enormous amount of work.  But it was also quite gratifying when the conference finally occurred.

One particular highlight of the conference was the last session, in which Larry Solum gave a paper on Interpretation and Construction, with comments from Larry Alexander.  In the room were the four leading advocates of construction --  Keith Whittington, Randy Barnett, and Jack Balkin, along with Larry Solum -- as well as one of the critics of construction (yours truly -- for my criticism, see here).  Significantly, each of the four constructionists had a different conception of construction. 

Hopefully, the video and audio of the conference will soon be available, so others can see these papers and discussions.  

Update: Randy Barnett responds to this post, saying basically that despite the differences between the approaches to construction, I am (without adequate explanation) against them.  And Randy even links to a youtube of Groucho Marx, singing "I'm against it."  Well, I will have to work on my mustache, but in the meantime, let me give a couple of responses.

First, in writing the post, I had not really intended to criticize construction.  My point was to highlight the conference and that unique panel.  Moreover, my claim that each of the construction approaches differed was, primarily, one of presenting news.  I sat there in the discussion on Saturday and realized with surprise, after all four of the constructionists had spoken, that they all had different conceptions.  I had not quite understood that before.  That said, I don't criticize Randy for taking the last line of my post as criticism -- it could certainly and reasonably be read that way.

Second, Randy notes that in our debate, which he links to, that I had only given arguments against one construction approach. That is largely true, but for a good reason.  I was debating him! And the differences between the approaches are often difficult to understand.  So I thought it best to focus on the one approach at issue.

At the debate and in my published works (with John McGinnis), I do give several reasons for opposing various versions of construction -- in particular, that I believe that language enacted against a rich body of interpretive rules can usually be interpreted, leaving nothing for construction.  For elaboration, see here.

Finally, it is true that some aspects of some of the construction approaches do not directly implicate my argument in the previous paragraph, and I don't necessarily oppose them.  But those aspects are not what has received attention and therefore are largely side issues.

Let me conclude by saying that the panel on Saturday was fun, as was the debate with Randy last month.  These are important issues, and it is important for originalists to get them right.  As Randy suggested at the debate, ultimately, we are all on the same side.

Further Update: Larry Solum also responds to the post, essentially claiming that his approach is consistent with the other constructionists.  As I remember the panel, at the beginning, the other constructionists certainly expressed skepticism about his claim of consistency.  As Larry argued for his position and for its consistency with the others, they may or may not have changed their minds. 

But determining whether the four positions are consistent is not the stuff of blog posts or even short papers.  These are complicated matters and at least some of these scholars have been changing their views a little recently. 

What is clear is that the four constructionists emphasize different things, appear to be motivated by different concerns, and describe their positions differently.  That is what I meant by saying that the different scholars “had different conceptions of construction.” 

Larry claims that his conception of construction allows for their conceptions, and it might be true.  But Larry’s conception, if I understand it now, is very general.  Depending on how one gives content to it, I might even agree with him.  He says interpretation is determining meaning and construction is given legal effect to a provision.  He even says that when one gives effect to an unambigous provision, one is engaged in (a kind of) construction.  Under this view, my approach may be consistent with Larry’s as well.  I believe virtually all cases can be decided based on interpretation.  And giving effect to these interpretations can be deemed construction.  If that is construction, then I have little reason to reject it.  Of course, most people think of construction differently.

I do think there are important implications of this discussion.  Most importantly, some scholars may see a large number of prominent commentators accepting construction and therefore mistakenly conclude that they are all accepting a common practice or conception.  My point here is that the scholars differ in focus and there is no single notion of construction that everyone should feel compelled to accept.

Yet Another Update: For more on this, see this additional post.

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Mike Rappaport


"Significantly, each of the four constructionists had a different conception of construction." Isn't that as it ought to be? I mean, if you're going to make stuff up, there's no reason why everyone should make up the same stuff, is there? One man's whim is another man's taboo. If you want any approximation to certainty in the law, you'd have to support originalism, surely? At least its proponents are struggling towards the same goal.

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