Congratulations to the Hon. Henry Breithaupt and his CLE committee for an excellent program on Nov. 30.
I have a few thoughts to continue the discussion on the role of history in constitutional interpretation and on the general question of constitutional interpretation. As Judge Landau explained "originalism" divides into two main categories: 1) Focusing on what the framers intended the words (phrases, sentences, provisions, or organization of the same) of the constitution to mean which requires one to draw inferences as to internal states of mind of participants (at particular times) from external sources of evidence. Robert Bork might have held this position at one time; I am not sure that anyone does today. In fact, conservatives are very skeptical about determining "legislative intent" in statutory interpretation and the same kind of speculative guess work is required in the constitutional interpretation context. 2) Focusing on what the words of the constitution meant to contemporaries living in the society (including those who participate in the constitutional drafting or in the convention) at the general time of its approval. Justice Antonin Scalia advocates for this method of interpretation. This is the position that a constitution is a permanent framework until amended and that it should not be subjected to some kind of "Derrida-style" deconstruction
every time an advocate, government official, or judge interprets some provision of it.
Other alternatives advocated for constitutional interpretation are:
Pragmatism comes in many branches, but here are four: 1) Wide open pragmatism where the primary objective is to make that decision that will best further human flourishing and also show respect for judicial precedents but certainly not obeisance. Justice Brennan may fit this category at least in the sense that he never seemed to lose his sense of empathy or his sense of human decency in his efforts to decide cases and he seemed less concerned with formal decision-making structures. Justice Stephens may fit this category as well. 2) Moderate pragmatism where there are dual objectives of near equal importance of making decisions that will best further human flourishing and that will best respect judicial precedents. In the case of a tie between the two objectives, in a case of serious consequence, the nod goes to human flourishing. Justices Souter and Ginsberg may fit here. 3) Conservative pragmatism is similar to moderate pragmatism, but the preference is for smaller steps of change in order to further human flourishing because the conservative pragmatist believes that all decisions are "experimental", some will work out well and others won't, so it is best not to make big changes and better to make smaller, more incremental changes that still fit coherently into the body of precedent. Cass Sunstein has advocated a more conservative pragmatism and Justices Souter and Ginsberg could fit in here. 4) Pragmatism that focuses on a certain category of human flourishing such as improving democratic processes. Justice Breyer fits here because, similar to John Hart Ely, he believes that judges can be true to their roles as judges and not act as legislators by expanding on precedent or overruling precedent primarily in cases where more people will be brought into participation in democratic processes, or will be giving protection from discrimination that inhibits their participation in democratic processes, or where democratic processes will be enhanced.
Some other approaches to constitutional interpretation include Ronald Dworkin's version of interpretivism where moral principles embedded in the law are used in making decisions when legal precedent runs out and gives no clear direction, and where moral principles, in general, are used when there are none directly expressed in the law that are applicable. Also, there is natural law in its many varieties and some have argued that Dworkin is really a natural law theorist.
What about history and the law? It is pretty clear that history will play a larger role for an originalist than it will for most pragmatists. Here, we are not concentrating on judicial precedent as history; we are concentrating on history as who did what, when, where and why, and what does it mean? Originalists focus on the past so that the future will be interpreted through a lense that has some fixed constitutional meaning. Pragmatists are more willing to focus on the future and to adjust the lense of meaning in accordance with current practices and understandings.
I will stop here without saying anything about the use of history in Oregon constitutional law interpretation, except to comment that it seems odd to me that we are searching for historical exceptions, including miscellaneous statutes that may have been in existence at some time or another around the time of constitutional enactments, when the only historical "carve-outs" from the broad language of Article 1, Section 8, for example, were those of libel, perjury, fraud, bribery, and direct harm to persons that were well established in English and American law. Any additional "carve-out", it seems to me, would have to meet the test of having been recognized over many years of American or of Anglo-American legal history. And, how much weight would we want to put on laws in the Oregon Territory that were adopted wholesale from Iowa (that makes it look like those in the Oregon Territory were looking for some law and some stability rather than making decisions about any particular law). And, if they didn't want to pay for a reporter at the constitutional convention maybe they were satisfied with text and didn't care about future generations and judges knowing anything about their intentions and didn't believe it was important for future interpretations of the law.
If you have thoughts about issues raised at the conference or about this post, please post your comments and we can have a discussion.
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