Russell and Duenes

I See Cass Sunstein Believes the Moon is Made of Green Cheese

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Cass Sunstein, professor of law at both the University of Chicago and Harvard University, wrote a broadsides against Justice Scalia back in 1997. See Justice Scalia’s Democratic Formalism, 107 Yale L.J. 529. In it, Sunstein calls into question Scalia’s preferred mode of jurisprudence, by which, in Sunstein’s words, Scalia “favors clear rules, seeks to treat statutory and constitutional texts as rules, and distrusts the view that legal texts should be understood by reference either to intentions or to canons of construction that live outside of authoritative texts.” That is, Scalia thinks that judges ought to try, using various legitimate tools of interpretation and hermeneutics, to discern the original public meaning of legal texts, and most importantly, of the text of the Constitution, so as to keep judicial rulings in line with the meaning of the text. This may be called a “textualist” perspective.

Sunstein has various critical things to say about Scalia’s approach, but he made one specific argument which struck me as particularly problematic. He argues that there are judges who, though they are willing largely to eschew the attempt to grasp or adhere to the original public meaning of the Constitution text, “might well think of themselves as originalists.” Having thought of themselves as originalists, Sunstein asserts that “it is by no means clear that judges of that kind have less legitimacy or are worse than originalist judges of the kind Justice Scalia favors.” And why not? Because,

     A federal judiciary that proceeds in common law fashion (i.e., judge-made law) and that treats constitutional rights as aspirations (given content by concrete cases and invoked sparingly to invalidate the outcomes of ordinary politics) might well, because of its very insulation, produce a better system of constitutional democracy. It might do so because it has certain advantages in deliberating on questions of basic justice, or – in my view far more likely – it might do so because and to the extent that it focuses on ensuring the preconditions for a well-functioning democratic regime.

In other words, judges who feel a certain liberty to depart from the meaning of the constitutional text, to insert their preferences (albeit, to be sure, not arbitrary and capricious preferences) into the ambiguous causeways of legal interpretation, and to tailor their decisions to achieve what they take to be “better” political and social outcomes, are just as, if not more, legitimate than judges who try to find the objective meaning of a text and apply it to particular contexts as such. Justice Scalia would not agree. Indeed, Sunstein concludes, and this is really the kicker,

      Justice Scalia thinks that, even if [the above] is true, a judicial role of this kind is fundamentally illegitimate and without authority, because it is not authorized by the Constitution. But the Constitution does not set out the principles governing its own interpretation; certainly the Constitution itself does not contain an interpretive principle of originalism. Any judgment about the appropriate content of governing interpretive principles must invoke not the Constitution but political theory of some kind. The claim that the text must be interpreted in light of the original understanding as Justice Scalia conceives it is not an implausible argument. But it depends both on contested ideals and on highly contingent and largely empirical claims about what system of interpretation is likely to be or to do best, all things considered.” (emphasis mine).

That’s a lot to unpack, and I cannot hope to address all the issues here, but I think that, if I’m understanding Sunstein’s last words correctly, he is saying something of profound importance and weight. So let me take his thoughts in order.

He holds that “the Constitution does not set out the principles governing its own interpretation.” Indeed it does not, but importantly, virtually no particular piece of writing “sets out the principles governing its own interpretation.” In other words, if I sit down to read The New York Times on a leisurely Sunday afternoon, has the article I’m attempting to read and understand “set out the principles governing its own interpretation?” Same question if I’m reading Shakespeare or Plato or Harry Potter, or . . . Cass Sunstein. I’m afraid that Mr. Sunstein has not given me an interpretive framework by which to read his little article here, so I’ve decided that I’m free to supply my own interpretive notions, whose legitimacy can hardly be questioned without appealing to some kind of normative interpretive system. And based on my interpretation, I’ve decided that Mr. Sunstein is arguing that the moon is made of green cheese.

“But wait, you can’t do that! No judge is doing that. You’re hyperbole is noted, but inapt, since judges are not just reading whatever they want into the Constitution.” To which I reply: What does it matter how far one strays from the meaning of the text? What does it matter if I misinterpret Sunstein one click or one hundred, in the long run, at least? He will still protest that I have not correctly discerned what he has said. And I just want to know upon what basis he will tell me that my interpretation of what he has said is illegitimate, seeing as he has not supplied me with interpretive principles for reading his essay within the essay itself.

Sunstein says that, because we cannot invoke an interpretive principle supplied by the Constitution itself, we will have to get our interpretive principles from “political theory of some kind.” But is attempting to understand an author’s meaning in a text a “political theory?” I always just thought it was taking other human beings seriously, more like a moral theory. In other words, all written documents contain an unstated interpretive principle of originalism, whether they be an encyclopedia, a dime novel, poetry, a biography, a sci-fi thriller, or a law review article. Some author will have written each one of these things, and that someone expects to be given the dignity of having his or her words understood in a particular way, not subject to the whim of the reader. The Democrat who extols the virtues of President Obama in an op-ed piece does not expect, and would highly object to, his readers making him out to be a Romney supporter. But why? Doesn’t he know that his op-ed had no “interpretive principle of originalism in it?” And because it didn’t, why should the op-ed writer expect his readers to interpret it the way he thinks it should be interpreted, according to its original public meaning?

Sunstein compounds his error by implying that interpretive methodologies are really, at root, relative, because dependent “on contested ideals and on highly contingent and largely empirical claims about what system of interpretation is likely to be or to do best, all things considered.” In other words, because the argument that texts should be interpreted and adhered to based on their original public meaning runs into “contested ideals” and “highly contingent and largely empirical claims,” then it really cannot claim to be more legitimate than interpretive frameworks that depart from the text’s objective meaning. Indeed, I think the true import of Sunstein’s argument is: Texts do not have any one particular original public meaning, at least not one that can be discerned by any judge, and which can be proclaimed as “the right way to read it.” Which leaves us where?

It leaves us in the world we now inhabit – for Scalia’s school of thought is in much ridicule from virtually all quarters today – wherein texts have no objective meaning, everything is subject to deconstruction for political or social advantage, cynicism abounds about people’s words and we feel that we are not rightly held accountable for the things we say and write, for our words can always be reworked and remade, yea reinterpreted, and still remain legitimate. Our schoolchildren are given the impression that nothing written before the last decade has any value for them, and even if it did, its meaning cannot be known. We hear and believe mantras like, “You can make (insert text here) mean whatever you want it to mean,” and we have public figures proclaiming that they were “taken out of context,” no matter how straightforwardly they spoke. Our public discourse takes on the nature of children shouting past one another, and people’s words are mocked with sarcasm and ridicule. And we are not thus living in “a well-functioning democratic regime.”

Contrary to what I take to be Sunstein’s argument (and if I’m wrong about Sunstein, if I’ve misinterpreted him, I’m happy to be so informed and to retract all of the above analysis), I believe there are better and worse ways to interpret texts. That is, there is rightness and wrongness to the issue of constitutional interpretation, and the right way to interpret it is not just some crap shoot which no one can claim to legitimately employ. The Constitution purports to be something, based on its own text, and thus, it constitutes a particular genre which brings specific interpretive principles into play, as do all unique genres. Moreover, I think I know this, not because it is based on some “political theory.” Further, it matters not that this knowledge is “contested” in some way, for all truths are contested in some way. I take my cues from our Lord Jesus. He was at pains to interpret the Bible, and he expected others to do so as well, knowing full well that the Scriptures did not come with principles set out “governing its own interpretation.” How could Jesus then expect people to rightly interpret it? I think Jesus put a lot of stock in the notion that there is a nature of things in God’s world, and that means, there is a nature of texts and thus, better or worse ways of interpreting and ascertaining the meaning of those texts. When Jesus said, as He often did, to His followers, “Have you never read . . .?” He meant, in effect, “Have you not properly interpreted and understood what God meant when He said . . .?”

I’m not trying to oversimplify things, and delving into the principles of finding the meaning in particular texts is beyond the scope of this essay, which has already become too long. But I at least take my starting point with the truth that texts do indeed have objective meanings and those meanings can be known and understood, if not perfectly. Having surrendered this truth on a large scale, we should not be surprised to find that our human relationships are consequently impoverished and our souls dry and shriveled.



Written by Michael Duenes

September 28, 2012 at 6:16 am

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