Interpretive Contestation and Legal Correctness

TABLE OF CONTENTS INTRODUCTION I. POSSIBLE INTERPRETIVE METHODOLOGIES II. DEBATES SURROUNDING THE METHODOLOGIES III. POSSIBLE RESPONSES TO THE PUZZLE A. The Natural Law Response B. The Rule-of-Recognition Response C. Dworkin's "Constructive Interpretation" Response D. The Skeptical Response CONCLUSION INTRODUCTION This Essay focuses on a basic puzzle about constitutional interpretation: Are there legally correct answers to contested questions concerning the methodology for interpreting the U.S. Constitution? Consider, for example, the debate about originalism. (1) Originalists claim that questions of constitutional law should be resolved by looking to the original public meaning of provisions in the text of the Constitution or the original intentions of the Framers concerning how the text should be applied. Nonoriginalists deny that either original meaning or original intentions are the touchstone for constitutionality. Is it the case that one party to this debate is legally correct and the other party legally incorrect? Or consider the representation-reinforcement theory of interpretation proposed by John Hart Ely, (2) building on the famous footnote four of United States v. Carolene Products Co. (3) Ely's theory is one particular version of nonoriginalism. Ely argues that the Constitution should be interpreted so as to improve the process of majoritarian democracy. (4) In Ely's view, the First Amendment is centrally a protection for the political speech required for free and fair elections and for the process of crafting legislation, rather than a broader protection for all speech as a basic aspect of human liberty. (5) The Equal Protection Clause is seen to be focused on cleansing the political process of prejudice against racial minorities, rather than as, more minimally, a formal nondiscrimination guarantee or, more ambitiously, a constraint on laws that have a substantially disparate impact on minorities. (6) And, for Ely, the Due Process Clause is not a guarantee of substantive rights that would serve as constraints on a well-functioning political process, such as rights to contraception, abortion, or assisted suicide. (7) When Ely argues in favor of a representation-reinforcement methodology, while others disagree, can it be that one side to this dispute is legally correct and that the other side is making a legal mistake? For short, I will refer to the following as "the Puzzle": Are there legally correct answers to contested questions concerning the methodology for interpreting the U.S. Constitution? In stating the Puzzle, I have chosen my words carefully. I am asking whether there are legally correct answers to contested interpretive questions, not whether there are correct answers in some other sense) My focus is on contested questions of interpretive methodology. For reasons that will emerge in this Essay, I do not think it is hard to explain how there can be legally correct answers to uncontested interpretive questions. In particular, the vast majority of U.S. jurists and scholars and, I assume, citizens and officials agree that the text of the 1787 Constitution, as amended, is the primary source of constitutional law. Some believe it is the sole source; (9) others believe that the text can be supplemented with unwritten sources of constitutional law; (10) but no one espouses an approach to constitutional interpretation that would ignore the text or give it a minor role. Thus, explaining why it is legally correct for a U.S. judge to decide a constitutional case by looking to the text of the 1787 Constitution, as amended--rather than the text of the French Constitution, the German Constitution, or any other text outlining a system of governmental institutions and individual rights--is not too difficult. What is difficult is explaining why it would be legally correct for a U.S. judge to interpret that text using method M, rather than method M*, when both method Mand method M* have significant support among jurists, scholars, officials, and citizens--when there is no consensus regarding which method ought to be used. …