Friday, August 12, 2011

Volokh on the Constitution's Plain, Present, Public Meaning

My friend, Eugene Volokh, has posted some thoughtful comments on my consent-based approach to reading the Constitution. His excellent questions show one benefit of looking for the plain, present, public meaning of the Constitution: It gives us a fresh look at a document we risk treating as putty for judges or as a dead historical artifact.

I won't pretend that a consent-based approach to reading the Constitution solves all our interpretive problems--especially hard problems like those Eugene raises--but every theory struggles with the text. Looking for the plain, present, public meaning of the Constitution offers at least another way to tackle the problem. I'd argue, further, that it offers us the best way to maximize the consent of the governed.

Eugene cites a "number of terms that either don’t have a 'plain, present, public meaning' apart from either their originalist or precedential meaning," such as those in the First Amendment or other, well-known parts of the Constitution. I appreciate that observation--though again I emphasize that precedent-based "living" constitutionalists and originalists struggle with the same passages. I won't bother, here, to try to answer each puzzle that Eugene offers, as I am more interested in describing a methodology than I am in dictating particular results. I have opinions about such things, to be sure, but I'm no judge.

How should real-world judges interpret constitutional words or phrases that the public understands to have a specialized meaning (e.g., "establishment of religion") or no discernible meaning at all (e.g., "writ of habeas corpus")? The same way they would interpret and construct a contract in similar circumstances: interpreting legal terms as such, taking heed of their context, and constructing uncertainties against the drafting party (the U.S. federal government, here) and in favor of the adhering party (citizens and residents of the U.S.).

That does not lead to simply following Supreme Court precedents. I doubt that Kelo would come out the same way under that approach, for instance, nor that "Property" would end up with a different meaning each time it appears in the Constitution. Note, too, that the approach I describe leaves room for considering original meaning, which we should treat as something akin to "course of dealing" in the contract context. By borrowing the methodologies of contract law, a court can come as close as possible to finding the plain, present, public meaning of popularized constitutional phrases and uncommon terms such as "writ of habeas corpus." Perfection remains elusive, here as with other approaches to the Constitution. But this approach offers the best guarantee of preserving the consent of the governed.


Glen Whitman said...

Is it possible that your plain, public meaning approach might allow originalist reasoning to have a role in specific cases? I.e., if I read a proposed contract and find a term that doesn't have a clear meaning to me, *then* I might ask what it meant to others in the past. And at that point, the past meaning *becomes* the present meaning. But this aperture for originalism wouldn't be available in cases where the language is more accessible. Perhaps this is what you mean by "course of dealing", a term I'm unfamiliar with.

Tom W. Bell said...

Exactly, Glen. In contract law, evidence of "course of dealing" concerns acts by the same parties under a prior agreement. It is considered less probative than "course of performance" (same parties, same contract) and less probative than "usage in trade" (other parties, other contracts). Original meaning concerns the same agreement--the Constitution--and only *one* of the same parties--the U.S. federal government--so it falls somewhere between usage in trade and course of dealing in terms of evidenciary weight.

Ran said...

Course of dealing is less probative than usage in trade? Is that a typo?

(I know nothing about the subject, and will completely believe you if you say that's how it really is. It's just so surprising, that I thought I would check to be sure.)