Theory on framework issues

Sunday, June 7, 2009

5.6 Adjudicating without a theory of Constitutional interpretation

(Sixth in The interpretation of statutes and the denial of judges' power series.)

Substantive Constitutional questions are eventually settled semi-permanently, but methods of Constitutional interpretation are rarely settled. This order of business is irrational because fundamental disagreement about interpretive methods obstructs judicial debate about specific provisions' meaning. How can you debate what the Constitution means when you don't agree about what it means for the Constitution to "mean" something?

One proposed pragmatist solution (Mitchell N. Berman, Originalism is Bunk (2009) 84 N.Y.U. L. Rev. 1; hat tip, Legal Theory Blog) illustrates the problem besetting pluralist resolutions of the problems of interpretation. As a description of much of the judiciary's workings, this account seems approximately right, but it doesn't solve the interpretive enigma: how can judges debate Constitutional meaning when they disagree about the basic nature of the meaning they're trying to elucidate? If the courts solve the problem of interpretation in tandem with the substantive issue presented, as Berman argues, what interpretive method do the courts use for that amalgamated determination?

The point is easiest to understand from a hypothetical Berman provides concerning a non-Constitutional matter that yet addresses how the court might select interpretive methods contextually. (Berman, Originalism is Bunk, supra, at p. 45.) A radio station offers a reward to the first call-ins after 12 a.m., which the offeror believed means noon. Listeners satisfying the literal (earlier) midnight opening sue based on public meaning. To avoid considerations of equity unrelated to meaning, imagine the governing statute refers simply to "meaning." Should the court respect the offeror's meaning or the public meaning?

Claims Berman, the court doesn't need an interpretive theory to read "meaning" as public meaning because it is least disappointing to the rightful expectations of participants and most consistent with the function of announcements, but what makes those factors criterial? A tacit interpretive theory leads Berman to select interpretive methods according to the public purpose of the message and the expectations of the recipients. A pragmatist standard, it elevates short-term satisfaction and sets shallow goals achievable with certainty. (An alternative standard might be formalist and seek to align the meaning of "meaning" as used throughout the code.) Berman's pragmatist stance injects judicial preferences into the decision, although doing so in the hypothetical is relatively innocuous. Berman's approach in principle amounts to a form of result-driven adjudication, so universally rejected (again, in principle) and deemed so insulting as an accusation that in some jurisdictions an attorney may be sanctioned for disrespect after so describing a decision.

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