‘Constitution,’ like ‘being,’ is said in many ways. I take this to be the key point for understanding a recent exchange between Adrian Vermeule, Josh Hammer, and, only yesterday, Chris Green. The issue is whether the argument for originalism from the Article VI oath, which has been made in numerous places (many linked to by Professor Green in his piece), actually does any normative work for us in the debate over how the Constitution should be interpreted.
The Article VI oath argument, summarized as briefly as I can manage, is as follows: Officers of the United States take an oath to support ‘this Constitution,’ meaning, of course, the Constitution of the United States of America, as required by Article VI. This normatively binds officers to that constitution, whatever its actual content. The subject of the disagreement just linked is whether the existence of this oath does any work for us in identifying the content of the constitution as a conceptual matter. Indeed, the real question at hand is less modest than this from the perspective of Hammer and Green: does it bind us to (some form of) originalism? I think not.
What is ‘this Constitution’? The easiest answer, and the one most amenable to the originalist position, I believe to be obviously wrong. ‘This Constitution’ refers, through a series of what I would call translations, to the following:
(1) It applies to the actual Constitution itself—that is, the document, signed in Philadelphia in 1787 and ratified as the Constitution of the United States in 1788 [barring quibbles about whatever discrepancies actually existed between these two documents];
(2) It therefore refers to the actual text of that document;
(3) It therefore refers to the system of political and legal norms specifying the basic form and operation of the American government which is properly understood to be encapsulated within the words in that document.
‘This Constitution’ would thus refer to this Constitution, in the three senses just specified: it refers to the basic form of government (under today’s favored version of originalism) which would have been understood by a reasonable, contemporary interpreter [3, above] to be implied by the signs and symbols [2, above] which appeared on the canonical constitution [1, above].
In some of my earlier academic writings, I attempted to lay out how this three-stage translation strikes me as in need of a great deal of explication, as there is an especially huge conceptual gap in how (2) becomes (3). But that is not my present point. My present point is that (2) itself seems to be a radically incomplete understanding of what ‘this Constitution’ means, even before we attempt to get to (3). This is because the words which were subject to negotiation in the 1787 Philadelphia Convention and then debate on the merits during the ratification process were interpreted in light of a specific intellectual tradition, that of the Anglo-American common law and constitution. ‘This Constitution’ makes sense only in light of that tradition, as interpreted by not only the Framers themselves (narrowly understood), but everyone directly involved in the ratification process. Constitutional texts are, as I would put it, enveloped within a shroud of implicature—they mean not only what they actually say, but also what they can be fairly understood to mean within the context of the social, economic, political, and legal tradition of the community to which they are addressed.
This is to say that ‘this Constitution’ cannot be merely the words on the page and/or what is specifically denoted by them. It must be something broader than this. The question is how far we must expand our net to capture the entirety of a plausible answer and if originalism, as a legal positivistic doctrine, can fully contain the answer which emerges. Again, I think not.
The strongest form of originalism for this debate, I think, is the original public meaning originalism which is largely dominant amongst contemporary adherents of the originalist doctrine. It holds that the Constitution (or any equivalent text) means, objectively, for all time, what it would have been understood to have meant by the community of speakers to which it was addressed. In other words, the Constitution means, basically, what the people who were engaged in the ratification debates thought it meant at the time.
Now, under this understanding of originalism, there’s a way of thinking that a legal positivistic doctrine might encompass the entire shroud of implicature (as I just put it) which imbues the constitutional text with its meaning. This is presumably because there is a fact of the matter as to what the political, legal, moral, and social conventions which provided the interpretive context in which the Constitution was initially understood, and these facts can presumably be unearthed, ideally through the law-office history which serves as the originalist jurisprude’s primary research tool. This is my understanding of what Professor Green is doing with Premise 4, here—that is, my best attempt to salvage Premise 4 without it importing the entire doctrine of original public meaning originalism as an unargued premise.
Two things should here be noted. One is that we’ve drastically expanded the realm of meaning for ‘this Constitution’ to something which can be recovered, for the most part, through a within-the-four-corners interpretation of the text to one which requires a Quentin Skinner-esque full contextualization of the constitutional text within its complete intellectual habitat. To read the Constitution in this way properly would require fully getting inside the heads of those who wrote—reading what they read, understanding as they understood, thinking what they thought. As a conceptual matter, we might have identified a way originalism could meet the Vermeulean challenge. As a practical matter, it would be almost insane for anyone not experienced as a Cambridge School historian to try.
The second thing to note is that Vermeule is fond of conscripting the interpretivist framework of Ronald Dworkin as a baseline interpretive methodology, and from this framework (which I also share), this way of meeting the challenge, even as over-ambitious it is, is not quite enough.
A postulate on the table is that, in order to properly interpret the Constitution, we must fully understand the body of constitutional political morality that the founding generation understood, as they understood it. The originalist argument, I think, is that this must be recoverable as a an exercise in history and sociology (sociological history?): there must be a positive fact of the matter of how the Framers understood the Constitution that is recoverable through the toolbox of the historian, analyzing the beliefs and practices of the founding generation. Why is this an issue? Part of the Dworkinian challenge, as I understand it as presented in Law’s Empire, is that there is no purely positivistic process through which the moral norms utilized in practical reasoning of another person can be recovered. There’s no process through which I can understand and evaluate the moral beliefs of another except through an exercise of practical reason which is essentially identical as the same process through which those moral beliefs were themselves generated. Practical reason is a techne, not an episteme, an undertaking, not a gaining of factual knowledge; to understand how to ride a bicycle, one must actually ride a bicycle.
If we buy the Dworkinian challenge, (I do; I can only guess Professor Vermeule’s position), the process of ascertaining what we mean by ‘this Constitution’ gets harder still. Recall that we began with the idea that maybe it means only to read the text, largely within the four corners of the document, and fairly interpret it as such. We then rejected this for the idea that to interpret ‘this Constitution’ is to interpret the full body of norms of political morality which would have informed the meaning of the constitutional text for the founding generation. On the Dworkinian picture, the only way we can recover and utilize that body of norms is to engage our practical reason in exactly the same way that the Framers themselves would have, to morally interpret the document and thereby to give up the idea that there is any positive fact of what the constitution means which can be recovered through anything other than a Dworkinian constructive interpretation of the document.
We end up where we began: ‘Constitution’ is said in many ways. It can mean a type of positive legal enactment, a super-statute which serves as part of the basic law of a People. It can refer, at the other extreme, to the entire body of social, economic, political, and legal norms which serve as the fundamental law of a society. (This is what ‘the constitution’ meant for the Ancient Greeks.) It can mean something in between these two extremes, as when we speak of ‘the constitution’ of the United Kingdom, a body of norms which govern as a ‘super-statutory’ limitation on arbitrary government in the first sense just discussed without actually being laid out in an explicit ‘constitutional’ text or without being beyond amendment by ordinary statute. ‘Constitution’ can refer to any number of things which may or may not be fairly representable as a straight line running through these three points.
The question is what ‘this Constitution’ means in the Article VI context. Professor Vermeule’s position, as I understand it, is that the originialist gains no leverage by citing the oath because it gets us nowhere toward identifying what we mean here by ‘constitution.’ That is only specified by a fully fleshed out constitutional interpretive methodology, explicit or implicit. It may be the law-office historian positivism of the originalist, it may be Dworkinian interpretivism, it may be a number of other things, but the existence of the oath itself does not tell us which of these methodologies is correct. To invoke the oath is thus either beside the point or question-begging.
This, again, is what I understand to be Vermeule’s position. It is not exactly mine: the existence of an oath implies an objective, communally identifiable standard for what one has promised to do, for fixing the criteria of oath-keeping and oath-breaking. A constitution implies the existence of a constitution as a thing which exists out there in the world with a certain level of tangibility. It would thus intuitively strike me as absurd to think ‘this Constitution’ could mean the constitution in Aristotle’s sense, the basic law of the people qua a thick body of communal norms which makes the People what it is. It strikes me as implausible that one could meaningfully take an oath to something to abstract, that there would be no objectively meaningful line (however fuzzy) between oath-keeping and oath-breaking which could actually do any work for the community at issue. (By ‘work,’ I mean serving as a basically shared set of criteria for censuring oath violators.) But, just as every full member of a shared community can speak and read the community’s language—can understand linguistic signs using the community’s shared criteria of linguistic meaning—each member of the community can morally reason using the community’s shared conception of the good. How, then, could the mere existence of an oath to support ‘this Constitution’ tell us which shared communal criteria should be exercised in ascertaining the content of the oath and whether it has been upheld or violated in any particular case? My answer is that it cannot. Thus, the mere existence of the oath cannot fix the interpretive methodology for ascertaining to what the oath refers. It might, more practically than logically, rule out some candidates, but the argument obtains the leverage originalists need only if it leaves exactly one candidate standing.