Christopher Havasy (Harvard Law School; Harvard University, Department of Government), Joshua Macey (University of Chicago Law School), & Brian Richardson (Cornell Law School) have posted Against Political Theory in Constitutional Interpretation (Vanderbilt Law Review, Forthcoming) on SSRN. Here is the abstract:
Judges and academics have long relied on the work of a small number of Enlightenment political theorists—particularly Locke, Montesquieu, and Blackstone—to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the drafters did not write the Constitution in the image of the philosophy of Montesquieu, Locke, or Blackstone. Instead, they developed a new form of government to meet what they perceived to be the needs of a nascent republic. And third, the Constitution itself departs from the dominant strands of Enlightenment political theory in crucial respects. For example, while some Enlightenment theorists advocated for precisely divided federal powers, the drafters favored a system of procedural checks, not formal separation. Thus, while Enlightenment works can be normatively persuasive or act as a guide to historical meaning, they should be treated as presumptively irrelevant in constitutional interpretation. Unless the party who would invoke an Enlightenment political theorist can produce evidence of consensus or common ground about that theory from an episode of American constitutional debate, the theorist’s prescriptions are no more probative than any other work of normative political theory.
Highly recommended. I agree with what I take to be the main thrust of the article. The interpretation of the constitutional text requires discovery of the original public meaning (more precisely, communicative content) of the constitutional text. Enlightenment political philosophy (and lots of other stuff) is relevant to that enterprise only to the extent that it provides evidence of original meaning. From an originalist perspective, it would be a mistake to argue that that the views of Locke, Montesquieu, or Blackstone are somehow binding sources of constitutional law.
I do have some reservations about some of the claims made in the article. The following passage appears:
It is now taken to be a plausible argument to contend both that a coherent vision of the Framers’ political theory can be reconstructed, and that such a theory can be wielded by modern interpreters to answer constitutional questions that are otherwise undetermined by the available historical evidence.19
Footnote 19 reads as follows:
See Lawrence B. Solum, Originalism and Constitutional Construction, 82 FORDHAM L. REV. 453, 458–69 (2013) (describing originalism and its variations).
This citation is inaccurate. Nothing in the passages cited provides support for the idea that originalism maintains that "a coherent vision of the Framers’ political theory can be reconstructed, and that such a theory can be wielded by modern interpreters to answer constitutional questions that are otherwise undetermined by the available historical evidence."
Moreover, the article fails to consider the ways in which works of enlightenment political philosophy might be relevant to the originalist enterprise. For example, Blackstone's work might help an originalist to understand the conceptual structure of the distinction between "executive power" and "prerogative power" that played a role in the drafting of Article I and Article II. Whether or not this is the case can only be determined by considering all of the evidence, including works of political philosophy, the constitutional record, and evidence from corpus linguistics. The authors seem to be familiar with work that uses Blackstone in this way; so, their failure to discuss this possibility seems puzzling.
Political philosophy might be relevant in another way. The communicative content of the constitutional text is not reducible to its literal meaning (semantic content). Context plays an important role in what is called "pragmatic enrichment" in the philosophy of language and theoretical linguistics. The political theory theory of the period is part of the context of constitutional communication and may be evidence relevant to pragmatic enrichments of the text. Surprisingly, the article does not even consider this possibility and makes no mention of pragmatic enrichment.
Another surprising omission from the article is the failure to discuss the work of Jud Campbell on the role of natural rights thinking in the original understanding of the First Amendment. Similarly, the authors seem to be familiar with the work of Jonathan Gienapp, but they fail to discuss his discussion of the role of natural law theory in the framing era understanding of the role of the constitutional text.
For these reasons and others, some of the conclusions reached by the authors are demonstrably false. Works of enlightenment thinkers may be highly probative with respect to both semantics and pragmatics even if they did not enter into a specific constitutional debate. The notion that enlightenment thinkers "should be treated as presumptively irrelevant in constitutional interpretation" is clearly an overclaim. Indeed, an opposing presumption, that enlightenment thinkers who were widely read and discussed in the period leading up to the Philadelphia Convention and the drafting of the Bill of Rights ought to be included when identifying the context of constitutional communication would be a better rule of thumb.
But my reservations about many of the claims made by the authors does not undermine my agreement with other claims and especially with what I take to be their central point: works of enlightenment political philosophy may provide evidence relevant to the determination of the communicative content of the constitutional text, but the views of enlightenment philosophers are not themselves sources of constitutional law.
