Tom is discussing various methods of interpreting the Constitution. The first two are original intent (what was in the heads of the Founders) and original meaning (what people at the time understood the words to mean). The fourth is contemporary common sense meaning (what the words mean to us now). The third is that the Constitution means whatever the Supreme Court says it means – which, practically speaking, is the operative method. However, as one student pointed out and Tom agreed, calling this a theory of interpretation is actually dodging the question, because we still need to ask what theory of interpretation should be used by Supreme Court justices.
This exchange highlights a common error of argumentation, and not just with respect to constitutional interpretation. The error is to answer the question “who should be able to make the decision?” or “what process should generate the decision?” when the real question is “what decision should be made?” For instance, I was recently arguing with a friend about drug legalization. I said, among other things, that the drug laws were unjust – and my friend replied by emphasizing that those laws were supported by the majority of the public and had been passed in the proper fashion. He was correct, of course, but he was also changing the subject. The debate was not about the appropriateness of majority rule or democratic governance – it was about the wisdom of drug laws. To put it another way, the question is not what the majority does believe or which laws Congress has passed; the question is what the majority should believe or which laws Congress should have passed.
Another example. In my first lecture, I raised some difficult questions about how property rights should be defined, how much vagueness in property rules should be tolerated, and how much enforcement of property rights is desirable. In response, some students suggested that these questions should be answered through the common law process, or that they should be decided at the state or local level. And I agree. Common law is often superior to statutory law. Decentralization is often superior to centralized decision-making. But once we’ve determined the locus of decision-making, the question of what decision should be made still remains. We could say, for instance, that abortion policies should be decided at the state rather than federal level – but what abortion policy do you want your state to adopt? The substantive question still has to be addressed.
There are, however, some cases in which the question-switching is justified. I can think of two reasons. First, sometimes we don’t know the answer to a question, and we think that a particular decision-making process will do better than others at discovering the answer. For instance, federalism is sometimes justified on grounds that the states provide useful laboratories in which to test different policies. Second, sometimes the correct answer is subjective or specific to a particular person, making it impossible to address the substantive decision without reference to the person who makes it. This is one basis for the libertarian claim that individuals should be able to decide their own diets, types of drug use, sexual practices, and so on. But if justifications like these are in play, they should at least be made explicit.