For quite some time, I’ve been meaning to post on Brian Leiter’s oft-repeated claim that originalists had utterly failed to produce an adequate justification for their position. Leiter recently posted again on this topic—with some very illuminating observations about Randy Barnett’s constitutional theory in particular and the “New Originaism” in general. This post will respond to Leiter’s and to a related post by Barnett. If you haven’t yet read their posts, here are the links:
Here we go!
Originalisms: New and Old
If you don’t follow the literature closely, you might think that the debates over originalist theories of constitutional interpretation ended twenty years ago when originalists were unable to convincingly answer a series of devastating critiques of what we now call “original intentions originalism”—the theory that holds that the meaning of the constitution is a function of the “intentions” of the framers or ratifiers. There was a huge literature, but two pieces were especially influential:
Paul Brest, The Misconceived Quest for the Original Understanding, 60 Boston University Law Review 204-238 (1980).
H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harvard Law Review 885-948 (1984)
Simplifying vastly, Brest’s article initiated a series of arguments against the thesis that the intentions of the framer’s or ratifiers could provide the meaning of the Constitution. As developed by Brest, Dworkin, and others the litany of problems included: (1) the nonexistence or radical ambiguity of intentions of a collective or group (i.e., the framers or ratifiers); (2) the existence of multiple intentional states (expectations, purposes, hopes, fears); (3) the nonsatisfaction of the reflexivity conditions required for intentions to convey meaning (i.e. judges, lawyers, and citizens at the time of adoption lacked access to information about the intentions of the framers and ratifiers and the framers and ratifiers knew about the lack of information).
Powell’s article developed a very different point. Powell argued that the framers had a theory of legal interpretation, and that theory excluded framer’s intentions as a basis for the determination of meaning. If true, Powell’s point would seem to imply that original intentions originalism is self-effacing or internally contradictory—although various escape routes have been suggested.
“Original intentions originalism” was what we now call the “Old Originalism.” In truth, intentionalism is very much alive as a theory of meaning (including legal meaning in general and constitutional meaning in particular). Prominent advocates of intentionalism include Larry Alexander and Stanley Fish. Indeed, there is a small but influential group of “Old Originalists.” Their arguments deserve extended treatment, but I am simply going to put them aside for now. The remainder of this post will focus on what has been called the “New Originalism” or “original-meaning originalism.” The central idea is that the meaning of the constitution is the “original public meaning” or the “conventional semantic meaning” of the text (the clauses, phrases, and words) in context.
The new originalism has many sources. The notion that the meaning of a legal text is its conventional semantic meaning in original context was implicit in Jeff Powell’s explication of the framer’s view of legal interpretation. But in the context of contemporary debates over originalism, the key move was made in a famous article by Justice Antonin Scalia:
Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989)
Scalia simply “made the move.” Although there may be some controversy about this, in my opinion, the major theoretical development of “original meaning originalism” is found in the work of Keith Whittington and Randy Barnett. Here are cites and links to their most important work:
Randy Barnett, Restoring the Lost Constitution (Princeton University Press 2003).
Keith Whittington, Constitutional Interpretation (University Press of Kansas 2001).
Keith Whittington, Constitutional Construction (Harvard University Press 2001).
More recently, Jack Balkin has written two important articles that extend and revise the Barnett-Whittington version of “the New Originalism”:
Jack Balkin, Abortion and Original Meaning (SSRN Version, August 28, 2006)
Jack Balkin, Original Meaning and Constitutional Redemption (SSRN Version May 18, 2007)
Balkin, Barnett, and Whittington differ in many ways, but (it seems to me) they agree on at least two different points: (1) the meaning of the Constitution is (in whole or substantial part) the “original public meaning” (or in my phraseology, the “conventional semantic meaning” of the constitutional text, and (2) constitutional practice (the application of the Constitution to cases by courts or issues by officials and citizens) is not fully determined by the original public meaning.
Because Balkin, Barnett, and Whittington agree on the first point, it makes sense to label them “original meaning originalists” or “New Originalists.” But in some ways, their agreement on the second point is more interesting and significant. How can originalist embrace the notion that original meaning does not fully determine constitutional practice? Isn’t this puzzling?
The key to unlocking the puzzle is the realization that the conventional semantic meaning of a text can underdetermine application in at least four distinct ways: (1) the conventional semantic meaning can be vague (in the precise and technical sense that the meaning admits of borderline cases, (2) the conventional semantic meaning can be irresolvably ambiguous (in the sense that that the meaning can be bi- or multi-valent), (3) the conventional semantic meaning can (in theory at least) leave gaps (in the sense that the structure of the Constitution requires an answer to a question that the text does not supply), and (4) the conventional semantic meaning can (in theory at least) be contradictory (in the sense that the text could, for example, command and forbid the same type of action). The New Originalists (or at least some of them) agree that the “original public meaning” of the text does not answer all constitutional questions. The clearest example of underdetermination is vagueness, and I am fairly sure that Balkin, Barnett, and Whittington would agree that the original public meaning of the constitutional text can be vague, and hence underdetermine meaning.
With the idea of constitutional underdeterminacy in place, we can approach another key distinction made by the New Originalists and most closely associated with Keith Whittington. Whittington distinguished “constitutional interpretation” and “constitutional construction.” The interpretation-construction distinction provides a useful framework for specifying the New Originalist approach to constitutional practice. In the spirit of Whittington, we can stipulate that the activity of determining the “meaning” of the constitutional text is “constitutional interpretation.” If the original public meaning is vague, ambiguous, gappy, or contradictory, then application of the text to a particular case or issue requires that we go beyond the meaning. When we go beyond the original public meaning, we engage in what we can stipulate is the activity of “constitutional construction.” Because of constitutional underdeterminacy, constitutional practice requires both interpretation and construction.
Although the “New Originalists” tend to agree on the two points outlined in the prior three paragraphs, they disagree about the best, proper, or correct method of constitutional construction. Barnett argues that constitutional constructions should be “justice enhancing.” Whittington argues that constitutional constructions by courts should defer to the political branches. Balkin argues that construction should be guided by constitutional principles—which are analogous to Dworkinian principles. By definition, constitutional construction cannot be determined by the original public meaning of the constitution: construction “comes on the scene” when original meaning “runs out.”
Leiter on “Justifying Originalism”
This brings us to Brian Leiter’s recent post on originalism, entitled “Justifying Originalism.” Leiter’s post is rich and helpful. The main thrust of Leiter’s post is to argue against Randy Barnett’s normative arguments for original meaning originalism. I will have something to say about the moves that Leiter directs at Barnett towards the end of this post, but the primary emphasis of my remarks will be aimed at Leiter’s stage setting—the moves he makes to characterize what the originalism debate is all about.
In particular, I will focus on two moves, which I will call (1) the argument from pluralist constitutional practice, and (2) normative reductionism. Before I proceed any further, I need to introduce a caveat: I am interpreting Leiter based on a blog post, the brevity of which makes confident characterizations of his position inherently problematic. Leiter may not hold the positions I attribute to him, or he might wish to modify or clarify his positions in response to my interpretation.
The Argument from Pluralist Constitutional Practice
Let’s begin with the argument from pluralist constitutional practice. Here is the key move in the argument:
When it comes to constitutional interpretation in the United States, certainly at the highest appellate levels (where precedent imposes the least constraint), there is no convergent practice of behavior by judges: they tend towards opportunism (a point famously captured in my colleague Philip Bobbitt's 1982 book on Constitutional Fate, though that was not his primary aim). Sometimes they will appeal to original intent, sometimes to original meaning, sometimes to structural considerations, sometimes to plain meaning, sometimes to animating moral principles, and so on.
There is, then, often no legal obligation to read the Constitution one way rather than another in the U.S. A defense of originalism is, then, in the American context necessarily a theory about what judges (morally) ought to do, and, as such, it must be grounded in some broadly moral considerations.
The structure of Leiter’s argument is reasonable clear. Step one is a factual assertion about judicial behavior—judges rely on original intent, original meaning, structural considerations, moral principles, and also historical practice and precedent. That is, step one asserts the fact of pluralist constitutional practice, where the pluralism in question consists in the plural modalities of constitutional argument found in judicial opinions. Step two is a conclusion which asserts that there is no legal obligation to interpret the constitution to be consistent with its original meaning. (Leiter says “to read the Constitution one way rather than another,” and I am interpreting “way” to refer to “method” or “modality of argument.”) For ease of reference, let me call the view endorsed as correct in step two constitutional latitudinarianism.
I am sure that readers will recognize that Leiter’s argument for constitutional latitudinarianism is enthymatic—there is an unstated premise. Step two does not follow logically from step one—a connecting premise that explains why the fact of pluralist constitutional practice entails no legal obligation is required. But I assume that Leiter can supply the missing premise. I would be very interested in the Leiter’s statement of the premise, but my comment on his argument goes in a different direction and does not, I think, depend on the particular premise he would supply.
Does the fact of pluralist constitutional practice entail constitutional latitudinarianism? When considering Leiter’s point in the context of the “New Originalism,” we need to distinguish between constitutional interpretation and constitutional construction. New Originalists would admit what we might call “constructive pluralism”—that is, they would surely admit that courts employ various modalities of constitutional argument to resolve vagueness, irreducible ambiguity, gaps, and contradictions. But constructive pluralism is not sufficient for Leiter to move from Step One to Step Two of his argument. To do that, he would need to establish what we might call “interpretive pluralism.” In particular, Leiter would need to show that there is a well-established judicial practice of reading the Constitution in ways that are self-consciously inconsistent with the original public meaning (or the conventional semantic meaning) of the text.
When Leiter attempts to make this showing, he will need to provide examples that do not involve the resolution of vagueness in the general and abstract provisions of the Constitution. For example, the equal protection clause, the due process clause, and the phrases “judicial power,” “executive power,” and “legislative power” are paradigmatically vague—and for this reason, courts must engage in construction when applying these provisions. But not all of the provisions of the constitution are vague in this way. There are clauses that have “bright-line” or “sharp-edged” conventional semantic meanings. Such clauses include, i.e., the provision that each state shall have two senators and the provisions that define the age and citizenship qualifications for various federal offices. Leiter might fulfill his burden of persuasion by offering examples of interpretation of these “bright line” clauses in which the court self-consciously adopted a reading that is contrary to the original public meaning. When Leiter attempts to fulfill his burden of persuasion, he will need to produce cases in which the alleged “interpretive pluralism” is self conscious or knowing. Cases in which the court had a mistaken view of the original public meaning or conventional semantic meaning would not suffice. (Precisely because legal “mistakes” are mistakes, they do not provide evidence that mistaken decision is legally correct or justifiable.) Perhaps Leiter will be able demonstrate a pattern of interpretive pluralism, and I look forward to the examples. I would note, however, that, on the surface at least, a judicial opinion that openly admitted embracing an interpretation (in Whittington’s sense of “interpretation”) that is contrary to original public meaning (or conventional semantic meaning) would sound quite odd.
That concludes my discussion of Leiter’s argument from pluralist constitutional practice. The second point on which I would like to comment is based on the final sentence of the passage quoted above. Let me repeat it here:
“A defense of originalism is, then, in the American context necessarily a theory about what judges (morally) ought to do, and, as such, it must be grounded in some broadly moral considerations.”
I called this point “normative reductionism.” Right away, let me say that I’m not sure that Leiter is a reductionist in the sense I shall specify. So my comments can be read as a clarification or supplement to Leiter, and are not necessarily the basis for criticism of Leiter. Moreover, I want to agree with Leiter that irrespective of the current legal practice (which may or may not involve interpretive pluralism), the normative issue is “on the table.” Even if American legal practice were strongly committed to original-meaning originalism as a theory of constitutional meaning or “constitutional interpretation,” in Whittington’s sense of the phrase, it would not follow that this commitment was justified as a matter of political morality. And if the commitment were not justified, then there would (or at least could) be good reason to change it. Enough windup, let me get to the point.
What is “normative reductionism”? I use this phrase to refer to the position that debates about originalism are entirely normative—that the case for originalism is about morality (in the broad sense) and not about meaning. And I shall argue that position is in error.
Semantic Originalism and Normative Originalism
In his post, Randy Barnett alludes to unpubished work of mine that directly addresses normative reductionism. In that work, I aruge that there is a fundamental distinction between semantic originalism—a family of theories about the natural meaning of the constitutional text—and normative originalism—a family of theories about how constitutional practice (both in the courts and by legislatures, executives, and citizens) ought to be conducted. Semantic originalism makes claims about the semantic content of the constitutional text. In its intentionalist form, semantic originalism claimed that the meaning of the text is a function of the intentions of the framers or ratifiers. In its public meaning form, semantic originalism claims that the meaning of the text is a function of the conventional semantic meaning of the clauses in context at the time the constitution was framed and ratified. For example, the phrase “domestic violence” had one referent (roughly rebellions or insurrections) in context at the time the original constitution was framed and ratified; the same phrase has a different conventional semantic meaning (roughly spousal, elder, or child abuse) in contemporary parlance.
Once we have the distinction between semantic and normative originalism in place, it is easy to see that semantic claims are at the heart of the New Originalism or original-meaning originalism. If the semantic claim were false, and the conventional semantic meaning of the text in context at the time of framing and ratification were not the “meaning” of the constitution, then it would be difficult for New Originalists to argue that there are good normative reasons to give this meaning authority. The difficulty is obvious: why should we have a normative commitment to something the Constitution doesn’t mean? If the original meaning is not the actual semantic content of the constitution, but is instead a construction or invention of originalist judges, then many of the normative arguments produced by originalists could be turned against originalism itself.
Let me be clear. The fact that semantic claims are at the heart of the New Originalism does not entail that original-meaning originalists do not also make normative claims. They do and they must. This post is not the occasion for a survey of the normative claims—they vary from arguments from popular sovereignty to arguments based on justice and those grounded in values of the rule of law. I shall say something about the normative debate a bit later, but I shall not be rehearsing the full case for normative originalism. Indeed, my own view of constitutional theory endorses semantic originalism, but only partially embraces normative originalism.
The Case for Semantic Originalism
This is a blog post, albeit a longish one. So it won’t be possible to give a full or adequate argument for semantic originalism on this occasion. Nonetheless, I think it is possible to give a sense of the way the argument might go in broad outlines. We can begin with the observation that semantic originalism is not a theory of constitutional practice. By itself, it makes no claims about how judges should resolve constitutional cases or how officials and citizens should interpret the constitution outside the courts. Semantic originalism is a theory about what the constitution means. In this respect, it is simply a subdomain of broader semantic theories. Similar theories might address the meaning of statutes or judicial opinions. These theories (perhaps supplemented by others) would constitute a theory of legal meaning, which itself is a subdomain of the more general theories of the meaning of all utterances (written and oral).
The meaning of an utterance is simply a fact about the natural world. For this reason, semantic theories might be called “descriptive” or “positive.” Simplifying greatly, we might say that there are two leading theories of legal meaning in general, which we might call “textualism” and “intentionalism.” These theories of natural meaning correspond, more or less, to the distinction made by philosopher Paul Grice between “sentence meaning” and “speakers meaning.” In the context of constitutional theory, textualism is the view that the natural meaning of the constitutional text is its conventional semantic meaning—the meaning that the words and phrases would have conveyed to the public at the time the relevant portion of constitutional text was drafted, proposed, and adopted. Borrowing from Grice, we can call this sort of meaning “clause meaning.” Similarly, the constitutional version of intentionalism is the view that the natural meaning of the constitutional text is meaning intended by the authors (framers and/or ratifiers) of the relevant constitutional provision. Following Grice we might refer to this kind of meaning as “framers meaning.”
From what I have said so far, one might infer that we can choose between framers meaning and clause meaning, and that this choice would have to be justified on normative grounds. But this is not, in fact, the case. That is because the meaning of legal texts in general (and the Constitution in particular) cannot be understood as speakers meaning (or framers meaning). For speakers meaning to be possible, the audience of an utterance must have knowledge of the speaker’s intentions and the speaker must know that the audience has this knowledge—call this the “reflexivity condition.” But in the case of legal texts like judicial opinions, statues, and constitutions, the reflexivity condition is not met. This is most obviously true in the case of the United States Constitution, where the framers believed the evidence of their intentions (the proceedings of the Philadelphia Convention) would be kept secret. Recognizing that there are conditions under which speakers meaning is impossible, Grice recognized the existence of sentence meaning—the meaning that would be conveyed by the conventional semantic meaning of the expressions that constitute an utterance. In the context, of the Constitution, this is the “clause meaning” or the conventional semantic meaning of the constitutional text. In other words, “clause meaning” is the “original public meaning” of the New Originalism.
Of course, there might be other semantic theories of constitutional meaning. For example, someone might argue that the semantic meaning of the clauses is the conventional semantic meaning they have at the time of application—call this “contemporary public meaning.” For example, the phrase “domestic violence” might have referred to “rebellion or insurrection” at the time the Constitution of 1789 was adopted, but it could refer to “spousal, child, and elder abuse” today. Or it might be argued that the meaning of the Constitution is whatever meaning a judge wishes to assign to it—on this theory, the Constitution is an empty vessel into which judges can pour any semantic content they wish. Or one might be a semantic skeptic, and deny that there is any semantic meaning at all. Although I won’t make the arguments on this occasion, even a moment’s reflection reveals that there are serious problems with contemporary public meaning or judge’s meaning as semantic theories. Semantic skepticism faces even more serious problems, including the obvious one that it is self-effacing because it implies that it is not even meaningfully assertable.
How might one argue against semantic originalism? There are at least three strategies. First, one could argue for some particular alternative semantic theory. Second, one could argue for semantic pluralism—the view that the constitutional text has a “meta-ambiguity” between the meanings assigned to it by alternative semantic theories. Third, one might argue that the constitutional text lacks semantic content at all—that despite the superficial resemblance of the text to a meaningful utterance, the Constitution simply does not mean anything at all. Perhaps there are other strategies. But any argument that clashes with semantic originalism must assume a stance either about or from within a semantic theory. What won’t work is to make a normative argument against semantic originalism. Normative arguments address a different question, and the attempt to argue against semantic originalism on the basis of a normative claim involves a category mistake.
Reframing the Normative Debate
The truth of semantic originalism, by itself, has no normative implications. Even if the semantic content of the constitution is the original public meaning, it could be the case that constitutional practice should deviate from that meaning. For example, one might argue that precedent should trump the original public meaning. Or one might argue that the difficulty of constitutional amendment so undermines the democratic legitimacy of the Constitution that the political branches are justified in “amending constructions” that give the text new and different semantic content. Or one might believe that the constitution is so undesirable or unjust that judges are justified in ignoring the semantic content of the constitution and deciding cases on the basis of their own beliefs about what the Constitution should have provided.
This same point could be made about any legal text. For example, one might argue that judges are justified in disregarding or modifying the semantic content of statutes for reasons for principle or policy or that lower courts are justified in disregarding the doctrine of vertical stare decisis for similar reasons. Or one might argue that the political branches should be free to disregard the semantic content of judicial decisions, and adopt “amending constructions” of court orders, damage awards, and injunctions. Similarly, one might argue that the semantic content of judicial opinions should not be binding on lower-level officials with ministerial authority. For example, judicial clerks, marshals, and sheriffs could disregard the semantic content of judicial orders and perform their duties on the basis of their views about what the content of the judicial orders should have been.
It is likely, I think, that most readers will recognize that the point of the prior two paragraphs is a reductio—the extension of the demand for a normative justification for originalism to its logical limit. The aim of the reduction is not to demonstrate that originalism does not require the support of normative argument. (It does.) Rather, the aim is to point at the obvious. In a wide variety of legal contexts, the notion that officials are obligated by the semantic content of legal texts is simply not controversial. Quite the contrary, our usual assumption is that in a reasonably just society, the semantic content of valid legal texts creates obligations for judges, other officials, and citizens. The corresponding obligations of fidelity to the law attach to the semantic content and not the mere syntactic form of the texts.
Again, I should be very clear. I am not claiming that I have produced a normative argument for originalism. The aim of this discussion of the normative case for originalism has been very modest. My goal is to put the normative question in a new frame. Leiter is right to observe that many originalists—but not Balkin, Barnett, or Whittington—seem to beg the normative question. If I might be allowed to restate Leiter’s observation in my own terminology. Many originalists seem to believe that by producing arguments for semantic originalism, they have provided a prima facie normative case. By reframing the debate, I think we can see how they made this mistake. These originalists believed that it was obvious that the correct theory of constitutional meaning entailed normative conclusions. I believe that was a mistake. “Obviousness” is in the eyes of the beholder. Once the normative claims of originalism are questioned, an argument must be produced.
But what is good for the goose is good for the gander. Nonoriginalists have their own burdens of persuasion and production. If nonoriginalists want to admit the truth of semantic originalism, but deny its normative force, they should do so explicitly. If they want to contest the truth of semantic originalism, they should lay their arguments on the table and make them explicit. If they want to deny the normative significance of the semantic content of the Constitution, but claim that the semantic content of other constitutional texts has normative authority and creates obligations of fidelity, they should produce the arguments that justify this distinction. And if they want to argue that some nonoriginalist theory of constitutional interpretation is justified on normative grounds, they need to produce the arguments.
It goes without saying that legal academics are especially fond of burden shifting arguments. Brian Leiter is absolutely right in demanding a normative justification for originalism. Indeed, this is a helpful and important move. But it is just one of many similar moves that can be made by both originalists and nonoriginalists. It is a debate starting move and most emphatically not a conversation stopper.
A Minor Point about Parochialism and Barnett’s Theory of Constitutional Legitimacy
Just one final point before I draw this to a close. In the context of his discussion of Randy Barnett’s theory of constitutional legitimacy, Leiter makes the following move:
Barnett, as is well-known, thinks that the constitution is legitimate insofar as it comports with a certain kind of rights-based view of justice that is more-or-less libertarian in character. The New Originalism is then justified on the grounds that the original public meaning of the U.S. constitution embodies that view of justice. That would, of course, make the argument for the New Originalism (non-pejoratively) parochial, i.e., contingent on the content of any particular constitution.
As I understand Barnett’s argument (and I have read the book several times and discussed the relevant chapter on numerous occasions with Barnett), Leiter’s argument rests on an incomplete characterization of Barnett’s position. Barnett argues that the legitimacy of a constitution depends on whether it provides sufficient assurances of reasonably just outcomes. In a society characterized by “justice pluralism,” different citizens will have different criteria for what constitutes a just outcome. Barnett himself has argued for what Leiter characterizes as a “rights-based view of justice that is more-or-less libertarian in character,” but he is explicit that his theory of constitutional legitimacy is not limited to those who share his substantive views of justice. For example, it could be the case that citizens who disagree with Barnett about justice could, nonetheless, agree with him that a particular constitution (such as the United States Constitution) provides sufficient assurances of reasonably just outcomes.
Moreover, it might be the case that citizens with different conceptions of justice could form what Rawls calls an “overlapping consensus” on the “constitutional essentials.” Using Cass Sunstein’s terminology, we could say that these citizens could form an “incompletely theorized agreement” on constitutional legitimacy. Barnett does not argue for this extension of his theory of constitutional legitimacy, but so far as I can tell, it is entirely consistent with his position.
It is true, as Leiter observes, that this theory of constitutional legitimacy makes the normative force of the semantic content of the Constitution contingent on the relationship of that content to substantive conceptions of justice. We can easily imagine constitutions that would fail this test in a way that made an overlapping consensus on constitutional legitimacy impossible.
Our own Constitution likely did fail this test of legitmacy to the extent that it provided constitutional protection for the institution of slavery. The debate over the question whether the Constitution of 1789 did, in fact, provide such protection was the subject of intense debate among abolitionists before the civil war. The Garrisonians argue that the Constitution enshrined slavery and hence that it was a “Covenant with Death and an Agreement with Hell.” As Mariah Zeisberg has observed, in a paper presented at the 2007 Annual Meeting of the American Political Science Association, Frederick Douglass originally adopted the Garrisonian reading—arguing that it was required by fidelity to the meaning of the constitutional text and concluding that as a consequence that Constitution was illegitimate. Douglass had a change of mind, however, and (adopting the arguments of Lysander Spooner and others) came to reject the Garrisonian interpretation and argued instead that the public meaning of the Constitution did not protect the institution of slavery. (By the way, be on the lookout for Zeisberg’s paper, it is a doozy.)
What is the salience of Douglass’s change of mind for the debate over originalism? One possible implication is that the attractiveness of normative originalism is inevitably entwined with our views about the justice of a regime that complies with the semantic content of the constitutional text. If you believe that a regime ordered by the content is fundamentally unjust, then you will reject fidelity to the original meaning (unless you believe the alternative is even worse). And you might be tempted to infer from your rejection of normative originalism, that semantic originalism must also be false. That is, you might be tempted to believe that the constitution does mean what it should mean. But that is a mistake. Should implies can, but ought to be does not imply is.
There remain one or two additional possibilities. One might recognize that the semantic content of the Constitution is unjust and believe the best course of action under the circumstances is to engage in bad faith argument—intentionally making claims about constitutional meaning that one knows to be false. For example, Zeisberg’s interpretation of Douglass’s conversion to Spooner’s interpretation is that his switch was strategic and not based on a good faith interpretation of the meaning of the Constitution. Zeisberg’s interpretation suggests the possibility of a normative argument for rejecting semantic originalism. Under some circumstances, there might be good normative reasons to dissemble about constitutional meaning. Of course, this justification could not be made public. Zeisberg herself argues for a different possibility—that citizens (as opposed to judges and other officials ) should be viewed as having legitimate authority to initiate what we might call “reforming constructions” of the Constitution. There is an obvious affinity between this final Zeisbergian possibility and the theory of constitutional change advanced by Jack Balkin and Sandy Levinson (see Jack M. Balkin & Sanford Levinson, Understanding The. Constitutional Revolution, 87 Va. L. Rev. 1045 (2001)).
At this point, it should be clear that further discussion will take us into waters that are very deep indeed. But I hope that these brief remarks make a modest contribution to the very interesting discussion started by Leiter and Barnett.
Read Barnett and Leiter's posts!