The Right Coast

November 21, 2005
Sunstein on Originalism
By Mike Rappaport

Cass Sunstein blogs on his appearance at the Federalist Society debating originalism. He writes:

There was a persistent claim that seemed puzzling. The claim was this: Interpretation just IS a matter of attempting to elicit the speaker's intention. Hence originalism, understood as a search for the original intent, follows from the very nature of interpretation.

This claim seemed puzzling for two reasons. First, the most prominent originalists, including Justice Scalia, do not focus on the "speaker's intention"; they focus on the original public meaning.

Second, and more fundamentally, there is nothing that interpretation just IS. In interpreting the statements of our friends, of course, we probably do best to try to understand their intentions. But in law, interpretation can be more than one thing.
Curiously, I agree with Sunstein. Two of my colleagues who I greatly respect, Larry Alexander and Sai Prakash, take this position that interpretation simply is the quest to determine the intent of the author. Yet other originalists, who I similarly respect, like Gary Lawson, argue that the meaning of a statement simply is its original meaning. So both set of originalists argue that, as a matter of determining meaning, their position is the only correct one. Yet, both disagree with one another.

My view is that interpretation and meaning are contested concepts and we see varying practices followed with respect to them. Each side has strong arguments for its position, but it is not clear how we could resolve it and in any event little in the end turns on it.

The proper arguments for originalism are legal and normative. The legal arguments show that the Constitution is best read as requiring originalism. And the normative arguments show that we ought to interpret the Constitution in this manner. What the best philosophical view of interpretation is is largely beside the point.