This Editorial has two modest goals.  First, it defines originalism, for we cannot intelligently assess the thesis without a firm grasp of the central term.  Second, it introduces core arguments for originalism and briefly sketches my rejoinders.

 
I.
What Originalism Is

Originalism is today’s dominant theory or account of how the federal judiciary should interpret the United States Constitution.  That does not mean it is widely accepted.  To the contrary, I believe it is more often rejected than embraced.  But it serves as a focal point for contemporary debates over constitutional interpretation to a degree that competing theories cannot boast.  And yet, just what originalism maintains is surprisingly unclear.  While one commentator has bemoaned that “[t]he originalist debate has progressed without a clear statement of the doctrine itself,”¹ another has complained that “[i]f ever a term muddied as much as it clarified, ‘originalism’ is it.”² This lack of clarity is unfortunate, for it invites the possibility that self-professed originalists champion a version of originalism that their critics do not reject, while the critics challenge a version that proponents do not maintain.

Contemporary originalists disagree over many things:  over which feature of the Constitution’s original character demands fidelity (Framers’ intent, ratifiers’ understanding, public meaning, or something else); over why such fidelity is required; over whether this interpretive obligation binds only judges, or whether it binds citizens, legislators, and executive officials too; etc.  But along one dimension—what I call the dimension of strength—originalists are mostly united:  They all believe that those who should follow some aspect of a provision’s original character (judges, at the least) must give that original aspect priority over all other considerations (with a possible exception for judicial precedent that departs from the original meaning).  That is, again putting aside the problem of stare decisis, when the original meaning (or intent, etc.) is satisfactorily discernible, the interpreter must follow it.  This is the central thesis that self-professed originalists maintain and that their critics (the non-originalists) deny.

This is perhaps the single most important fact to understand about the originalism debate today, so I will risk belaboring it.  Non-originalists do not deny that the original public meaning of a constitutional provision, or the meaning that the Framers or the ratifiers intended to entrench, or even the purposes that they aimed to advance, bear on proper judicial constitutional interpretation.  Non-originalists typically accord weight to all these things.  But they accord weight to other considerations too, such as the historical practices of the nonjudicial branches, longstanding cultural understandings, widespread contemporary values, and even the interpreter’s own judgments about justice and workability.  Of course, non-originalists do not all agree on how much interpretive weight each of these other considerations should get (or even which other considerations should get any weight at all).  What distinguishes originalists from non-originalists is that the former affirm, and the latter deny, that the judiciary is obligated to interpret the Constitution in accord with some aspect of its original character.³

Think of “originalism” as capturing a family of actual or possible views about constitutional interpretation, views that vary across several dimensions.  On the dimension of strength, we can distinguish three claims:

(1) Weak Originalism:  Original meaning contributes to constitutional meaning.

(2) Moderate Originalism:  Original meaning contributes substantially to constitutional meaning.

(3) Strong Originalism:  Original meaning contributes decisively to constitutional meaning.

When participants in contemporary interpretive debates discuss originalism simpliciter, or originalism unmodified, they overwhelmingly refer to strong originalism—whether or not qualified by an exception for judicial precedent.⁴ In saying this, I am making an empirical generalization, not asserting a supposed conceptual truth.

Over the years, scholars have criticized originalism on diverse grounds, including that the target of the originalist search is undiscoverable or nonexistent, that originalism is self-refuting because the Framers intended that the Constitution not be interpreted in an originalist vein, and that originalism yields bad outcomes.  I proceed differently.  Instead of mounting arguments for why originalism is not true, I endeavor to catalogue the varied arguments proffered to establish that it is and to evaluate such arguments critically.

Arguments for originalism can be sorted into two broad classes—what I call hard and soft.  Originalism is hard when grounded on reasons that purport to render it (in some sense) necessarily true.  Originalism is soft when predicated on contingent and contestable weighings of its costs and benefits relative to other interpretive approaches.  That is, hard arguments seek to show that originalism follows logically or conceptually from premises the interlocutor can be expected to already accept, while soft arguments aim to persuade the interlocutor to revise his value judgments or his empirical or predictive assessments.  This is just the first pass at a distinction that might still benefit from further refinement.  But, however the distinction might be best formulated, ultimately the question is whether the arguments for originalism succeed, not what their status or character is.  Still, readers of the originalism literature might find a rough grasp of the distinction useful, for recognizing a particular claim as hard or soft can prime one for the types of counter arguments that will be required.  The distinction is perhaps even more important for proponents of originalism than for critics.  The rhetoric over originalism is often heated.  Those not armed with hard arguments ought not to make hard claims.

 
II.
Assessing Originalism

Arguments for originalism—by which I mean strong originalism—are works in progress.  But three arguments predominate.  Originalism is said:

(1) to follow necessarily from the nature of meaning or of interpretation;

(2) to follow necessarily from the nature of law, or of constitutions, or of the rule of law, or something of this sort; and

(3) to constitute the optimal judicial interpretive stance, all things considered.

The first two arguments are hard; the third is soft.

 
A.     Intentionalism

Most of us believe that federal judges—Supreme Court Justices especially—are engaged in the activity of interpreting the Constitution, understood as the process of deriving or divining law (or “legal meaning”) from constitutional text.  Intentionalism is a theory of interpretation generally, not a theory of constitutional interpretation in particular.  Intentionalists contend that interpretation of any text—a poem, a musical score, a blueprint, a sign, a contract, a statute, a constitution, etc.—is necessarily a search for the author’s intentions.  As explained by Steven Knapp and Walter Benn Michaels, the literary theorists who have championed intentionalism most ardently, “the meaning of a text is simply identical to the author’s intended meaning.”⁵ If this is true, then the meaning of the Constitution is the originally intended meaning, and the job for present-day constitutional interpreters is simply to unearth that originally intended meaning.

But on what grounds should we conclude that intentionalism is true?  First, a favorite intentionalist tactic is to appeal to readers’ pre-theoretical intuitions that, in a range of everyday contexts—from reading a grocery list to ordering off a menu—interpreters ought to search for the author’s intended meaning.  Second, intentionalists insist that meaning cannot simply “inhere” in a text without animating intention.  The supposed fact that a stalactite’s drippings cannot create a meaningful text no matter how much they resemble words in a known language presumably establishes that texts derive their meaning from the author’s intention.  Third, intentionalists argue that intentionalism is required to render the act or practice of interpretation rational.  As Stanley Fish has put it:

For interpretation to be a rational activity and not a form of what H.L.A. Hart calls “scorer’s discretion,” there must be an object prior to and independent of the interpreter’s activities, an object in relation to which you can marshal and assess evidence and measure progress. . . . The only object of interpretation that makes it a rational activity rather than a free-for-all is the intention of the author.⁶

Now, the first argument is inadequate because nobody denies that intended meaning is both a valid form of meaning and the frequently appropriate target of interpretation.  The only thing that non-intentionalism denies is that interpretation must be a search for intended meaning in all interpretive contexts, and with respect to all types of texts—poems, statutes, grocery lists, invitations, instruction manuals, etc.  Non-intentionalism as a general theory of interpretation is no more anti-intentionalism than non-originalism as a theory of constitutional interpretation is anti-originalism.  Accordingly, the intentionalists’ challenge is to explain why we must always interpret all texts solely in accordance with presumed authorial intent. The remaining arguments are designed to address that question, but are not up to the task.

To start, few non-intentionalists contend that meaning simply inheres in shapes or sounds or even in lexical items fashioned around grammatical structures.  Even assuming arguendo that nonhuman artifacts cannot have semantic meaning and, therefore, that the intention of an agent to convey meaning is necessary for the text thereby produced to bear meaning, it does not necessarily follow that the meaning that the text bears must be the meaning that its author intended.  We might say that some authorial intentions (to communicate and to use a particular language, for example) could be preconditions for interpretation (if they are even that), without such intentions necessarily serving as the target of interpretation.

Finally, it is plainly false that, once we untether meaning from authorial intention, a text can mean just anything at all.  Interpretation is everywhere constrained by cultural conventions.  Furthermore, our reasons for interpreting a given text might themselves provide reasons for or against different interpretive targets.  When the reader’s purpose in interpreting a text is to coordinate with the author or to glean information from him, she will rarely have any reason to engage in non-intentionalist interpretation.  But not all communication is designed to effect coordination or convey information.  Constitutions might be designed—and, in any event, might be understood and valued—in part to secure good outcomes within broad constraints.  Thus, the standards that determine whether a given interpretation is true (or more or less plausible) would not be determined by conceptual truths standing apart from our reasons for engaging in the interpretive activity.  Rather, our reasons for engaging in interpretation (understood as activity) would partly determine the standards by which interpretations (understood now as the output of the activity) are measured.

 
B.     Law

Contentions that originalism somehow follows from the very nature of law or from some noncontroversial feature of our law, or of our Constitution, are common but elusive.  Often, they rest on a quasi-Austinian picture of law itself that needs no further discrediting.  Some originalists, however, contend that to treat a constitution as binding or authoritative entails that what we treat as binding is its original meaning.  It is the original meaning of the Constitution that confers upon the Constitution its authoritative character, the fact that we take ourselves to be bound by it.  And this is so, they often say, because our Constitution is written.  But precisely why the writtenness of the Constitution dictates originalist interpretation is hardly obvious.  As Keith Whittington, who has pressed the originalist “argument from authority” with uncommon vigor and sophistication, recognizes, “the nature of the constitutional text can be conceived of as a fixed referent for political debate.”⁷

Theorists who would derive originalism from principles of law sometimes place particular weight on the rule of law, a congeries of values like transparency, stability, and predictability.  The idea is that these values can be respected or realized only through an originalist posture.  But this is again false.  For one thing, these values are sometimes better served by interpreting the Constitution in accord with widespread contemporary beliefs about its meaning or expectations about judicial practice, rather than by appeal to understandings that are centuries old and that require painstaking historical investigation to excavate.  For another, the argument encounters a reductio.  We have never had a resolutely originalist Supreme Court Justice, let alone an originalist Supreme Court.  If the rule of law requires originalism, then it must follow that the United States has never respected the rule of law—a conclusion that few will swallow.  In short, arguments that strong originalism is entailed by the rule of law—or by other core values such as democratic accountability and separation of powers—routinely rely on the erroneous assumption that such values can be realized only fully or not at all.  They fail to appreciate that an interpretive approach, just like any feature of the system of constitutional governance, can satisfy or embody these values to greater or lesser degrees.

 
C.     Pragmatism

If originalism does not follow from the nature of interpretation or from the nature of law, or from basic legal concepts or values to which our constitutional order is committed (such as legal authority or the rule of law), originalism might nonetheless be defended on essentially soft pragmatic grounds as simply the best way to run the railroad.  Indeed, two versions of this argument can be unearthed, what we might think of as act-consequentialist and rule-consequentialist variants.  Both variants recognize a multiplicity of values or ends that constitutional adjudication should serve:  promoting the stability of legal norms and the predictability of judicial decisions, permitting space for contemporary democratic decisionmaking, respecting the intentions and expectations of previous ratifying generations, advancing justice and preventing injustice, ensuring a workable legal system flexible and robust enough to meet the economic and geostrategic needs of a world power in the twenty-first century, etc.

The act-consequentialist pragmatic argument for originalism maintains that, in each individual case of interpretation, these values are optimized by interpreting the constitutional text in accordance with the specified aspect of its original character—say, its original public meaning—either because one of the relevant values or desiderata is lexically prior to all others and is always best served by the originalist interpretation or because, although the ordering of relevant values is nonlexical, it just so happens that an originalist interpretation always optimizes their collective realization.  The rule-consequentialist variant concedes that if the interpretive approach were up for grabs on every individual occasion of interpretation, then non-originalist interpretations would sometimes be optimal.  But it claims that constitutional interpretation must proceed in accord with a clearly articulable rule, and that only originalism can furnish what is needed.

The act-consequentialist variant is implausible once we recall that the debate over originalism presents a choice, not between following the original understanding always or following it never, but between following the original understanding always and following it sometimes.  Because genuine alternatives to strong originalism include interpretive postures that give substantial, albeit not conclusive, weight to original meaning, act-consequentialist arguments are not remotely likely to support strong originalism against all positions that fall within moderate originalism.

Does the rule-consequentialist variant fare better?  Precisely why interpreters of the Constitution should proceed by means of an interpretive rule, and not a standard, is rarely spelled out with specificity.  Although originalists frequently invoke the slogan that “it takes a theory to beat a theory,” this adage cannot by itself explain why judges must follow the (more or less) sharp-edged rule that originalism supplies for selecting among candidates for constitutional meaning.

 
D.     The Noble Lie

The most promising reason to prefer rule-like strong originalism to a more standard-like moderate originalism rests on the perceived inevitability of drift or slippage from the announced interpretive method to the method actually practiced.  Under present practice, interpretive rules are given by judges to themselves; there is no authoritative external promulgator or enforcer of interpretive rules.  Therefore, that originalism produces better consequences on balance than any of its competitors is a reason for judges to embrace it only on the assumption that judges should be guided in their decisionmaking by the goal of realizing best consequences (by whatever metric of value the theorist proposes).  But if so, cases would inevitably arise in which judges were quite confident that departing from the original meaning, on that occasion, would produce better consequences than would following it, even when accounting for whatever marginal negative effect nonconformity with the interpretive rule on the occasion in question might have on future conformity with the rule.  In short, the pragmatic case for originalism runs up against all the usual objections to rule-consequentialism.

This might look like an argument against strong originalism, but it actually amounts to just the opposite.  If strong originalism were the law in the books, the originalist admits that it would reduce in practice to some form of moderate originalism.  But if moderate originalism were the law in the books, the originalist continues, it too would become something even weaker in practice—perhaps mere wish fulfillment, or what Fish and Hart call “scorer’s discretion.”

This final argument for preaching strong originalism even while knowing that it cannot be successfully defended against all forms of non-originalism, then, would be that the theoretically better alternative of a genuine moderate originalism is not practically attainable.  If we want some checking of pure judicial subjectivity, we need to forcefully avow strong originalism—we might even need to avow hard strong originalism—even if we will actually prefer some unacknowledged departures from such strong medicine.

This variant of the Noble Lie is, I think, likely the best argument for strong originalism.  But I doubt it is good enough.  As Justice Scalia himself insists, “the American people are not fools.”⁸ They can see and understand dishonesty.  And judicial dishonesty might be especially likely to have a corrosive effect on public acceptance of the judicial role and a corrupting influence on judges themselves.  Thus, does my originalist colleague Lino Graglia rightly proclaim “that honesty is the best policy, particularly for public officials and even more particularly for judges.”⁹ It is cause for concern, then, how often self-proclaimed originalists abandon originalism to advance what seem to be their political preferences.  As one recent empirical study concluded, “Justices might speak about following an ‘originalist’ jurisprudence, but they only appear to do so when arguments about text and intent coincide with the ideological position that they prefer.”¹⁰ Admittedly, past performance is no guarantee of future results, but it generally is the best single predictor.  Observing that “[o]riginalism is the legal profession’s orthodox mode of justification,” one originalist urges that “the Court should align its practice with its preaching.”¹¹ But the practice is unlikely ever to accord with originalist dogma.  Thus, the originalist’s advice might have things backward:  The virtue of candor would be better served were the Court to align its preaching with its practice.

 
Conclusion

Reasonable people can reasonably disagree regarding the considerations that should shape judicial constitutional interpretation, but I am aware of no theorist who believes that original meaning is irrelevant and few, if any, who would treat original meaning cavalierly.  Originalists are committed to a stronger position:  They contend that judges owe fidelity to original meaning (or intent, or the like) to the exclusion of all other considerations, with a possible exception for judicial precedents that do not themselves follow original meaning.  But the arguments thus far mustered for this demanding thesis are inadequate for the task.  The upshot is not that constitutional interpretation should disregard the Framers’ intentions, ratifiers’ understandings, or original public meanings.  Of course we should care about these things.  But we can take the original character of the Constitution seriously without treating it as dispositive.  That original intents and meanings matter is not enough to render originalism true.

Acknowledgments:

Copyright © 2009 New York University School of Law.

Mitchell N. Berman is Richard Dale Endowed Chair in Law at The University of Texas (Austin) Law School.

This Legal Workshop Editorial is based on the following full-length Article: Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. REV. 1 (2009).

One commonly stated reason for the association of textualism with limited regulation—voiced both by Frank Easterbrook, a textualist, and by Marmor, an antitextualist—is that textualists let loopholes in regulatory statutes lie, choosing not to fill them in with broad readings that might make sense in the context of the regulatory scheme or that accord with the intent of the enacting legislature.  Eskridge suggests another, more long-term, reason:  By forcing Congress to revise statutes to reflect new circumstances, rather than allowing judges to do it themselves, textualists raise the cost of legislation.  This—in accord with conservative antiregulatory sympathies—reduces the amount of legislation in the future.

The conventional wisdom likewise holds that textualist opinions are more likely to be overridden by Congress.  Why?  Because, Justice Stevens writes, textualists “ignore[] the available evidence of congressional purpose.”⁵ Or, suggests Eskridge—focusing on present, not past, intent—because “[t]he formalist group on the Court is not interested in the preferences of the current Congress.”⁶ Or, says Daniel Bussel—taking a pragmatic approach—because of textualists’ “agnostic stance with respect to the practical consequences, purpose, and efficacy of a particular construction.”⁷

Finally, a considerable literature argues that textualism is more likely to make judges operating under the Chevron framework find that a statute has a “plain meaning” and thus deny deference to an administrative agency’s interpretation of the law.⁸  Justice Scalia himself has candidly avowed:  “One who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists.”⁹  He has attributed his willingness to find plain meaning to his being “(for want of a better word) a ’strict constructionist’ of statutes”—by which (though he later rejected the term) he simply meant a textualist.¹⁰  Various empirical studies tend to confirm Scalia’s intuition.

Why might this be so?  Most obviously, textualism might actually be more determinate.  Less charitably, some have suggested psychological explanations for why textualists might think that their method yields determinate answers:  Textualists are more likely to find a plain meaning because they see the quest for meaning as a puzzle to test their ingenuity; intentionalists, by contrast, are more likely to find ambiguity because they approach their task as historical researchers uncovering pieces of evidence.

In short, the statutory interpretation literature is teeming with claims about textualism—its supposed political bias, its tendency to produce congressional overrides, and its tendency to find plain meaning.  These claims are largely based on “essentialist” explanations—that is, explanations resting upon the supposed nature of the textualist enterprise, which opposes closing loopholes, deemphasizes the intent of enacting (or current) Congresses, and treats interpretation as a logic game.  But this conventional wisdom may be mistaken:  It fails to take into account that the textualism we observe in written judicial opinions may be an unrepresentative sample of textualist analysis as a whole.

 
I.
The Role of Ideology in Methods of Statutory Interpretation

Judges are not randomly assigned interpretive methods that they must use in writing opinions; they choose the method they like, perhaps differently from case to case, in ways that may have something to do with their own political preferences in the case at hand.  Therefore, we should not rush to draw conclusions about the nature of an interpretive method based on written opinions without trying to understand why judges have chosen the method in the first place.

Suppose, as scholars of the “attitudinal model” have argued, that judges are primarily motivated by the desire to implement their ideological agenda.¹¹  In most of the attitudinal literature, methods of statutory interpretation are treated—if at all—as irrelevant, mere rhetoric.  But suppose that, in addition to having ideological goals, judges need—or want—to justify their rulings by reference to a plausible interpretation of some statute.  Then methods of interpretation can matter, at least to the extent that different methods make different results more or less plausible.

Consider, for instance, the Individuals with Disabilities Education Act, which allows prevailing parents to recover “reasonable attorneys’ fees as part of the costs.”¹²  According to the Second Circuit, the statutory text alone does not allow prevailing parents to recover expert witness fees.¹³  However, legislative history, dicta in a previous Supreme Court opinion, and the purposes of the statute all point to the opposite conclusion.¹⁴

Or consider the Clean Water Act, which defines “pollutant” to include “radioactive materials.”¹⁵  Does this cover radioactive materials that are already regulated by the Atomic Energy Commission (AEC)?  The answer, considering only the statutory text, is yes, as both the Tenth Circuit and the Supreme Court recognized.  The legislative history apparently “speaks with force” in the other direction, however, and suggests strongly that radioactive materials regulated by the AEC are not covered by the Clean Water Act.¹⁶

Finally, consider Title II, Subtitle B of the Bankruptcy Judges, United States Trustees, and Family Farmer Bankruptcy Act of 1986, which created a special Chapter 12 of the Bankruptcy Code for family farmers.¹⁷  The Act provided that the provisions of Chapter 12 did not apply to bankruptcy cases “commenced . . . before the effective date of this Act.”¹⁸ However, the legislative history said the opposite:  Bankruptcy cases “pending at the time of enactment” (filed under Chapter 11 or 13) could be converted to Chapter 12 cases under the “sound discretion” of courts, “where it is equitable to do so,” and subject to a list of factors.¹⁹

In these cases, textualism seems to lead to one rule of law, while intentionalism and/or purposivism seems to lead to another.  If a judge is ideologically motivated and has particular preferences regarding fee-shifting in disability cases, environmental regulation, or bankruptcy—all ideologically loaded areas—he may choose the interpretive method that allows him to reach the result he likes.

These examples are simple ones, of course, as it is widely recognized that most, if not all, interpretive methods—whether textualism, intentionalism, purposivism, or pragmatism—are capable of justifying a wide variety of results.  Thus, instead of talking of an interpretive method’s “leading” to a particular rule of law, we can talk of an interpretive method’s “pull” toward a particular rule of law.

If different interpretive methods make different results more plausible by privileging different materials (whether dictionary definitions, legislative conference reports, or anything else), they can exert a pull on the judge using that method.  If a judge has a particular “ideal point”—the point that he would choose if he considered himself free to rule unapologetically on policy grounds—the felt need to justify his ruling as a plausible interpretation of the statute will make him deviate from his ideal point in the direction of the most plausible point of whatever method he happens to be using.

If this is so, then individual judges—who today have broad choice among interpretive methods—will tend to select the interpretive method that, other things being equal, minimizes the extent to which they must deviate from their preferred outcomes.  This self-selection effect can seriously mislead observers as to the nature of different interpretive methods.

 
II.
Textualism and Textualists

Suppose, for instance, that textualism and intentionalism can be used to justify almost identical ranges of possible policy results—except that the textualist range is slightly more conservative than the intentionalist range.  Then suppose that lawmakers adopted a Federal Rule of Statutory Interpretation mandating one method or another, or suppose that the Supreme Court took the advice of the House of Lords and mandated a method by judicial fiat; judges with different politics might still rule in different ways such that we would observe a distribution of opinions across the political spectrum, but the ideological distributions of judicial opinions under textualism and under intentionalism would be nearly equivalent.

But in our current regime of free interpretive choice, conservatives would tend to choose textualism because textualism can support slightly more conservative results; conversely, liberals would tend to choose intentionalism.  Judges’ ability to choose their own method would then substantially exaggerate the political differences between the methods:  We would observe only the most conservative possible textualist opinions and only the most liberal possible intentionalist opinions.

Thus, observers may conclude that textualism has a substantial conservative bias, when in fact its bias may only be slight.  (With a bit of ingenuity, one can even construct an example where textualism appears more conservative, when in fact it is not more conservative at all!)  Environmental policy is one area where textualism has often been thought to be a cover for a conservative, anti-environmental agenda—and looking at certain recent conservative opinions, such as the plurality opinion in Rapanos v. United States²⁰ or Justice Scalia’s dissent in Massachusetts v. EPA,²¹ this view seems intuitively plausible.  However, this is one area where self-selection may seriously distort the picture.  To the extent that environmental laws embody strict requirements, bar cost-benefit analysis, and the like, an environmental litigator may positively relish the idea of litigating before a textualist judge rather than a pragmatist judge—holding the judge’s political ideology constant.

Observers may similarly conclude that textualist opinions are more likely to be overridden by Congress, when in fact it is merely opinions by relatively conservative judges (whatever their interpretive theory) that have been more often overridden by a relatively liberal legislature.  They may conclude that textualism is more likely to find a plain meaning, when in fact it may be merely anti-agency conservatives who exploit the malleable first step of Chevron to strike down agency action.  In short, many statements about textualism may really only be statements about textualists.  Observed textualism under today’s largely laissez-faire interpretive regime may be best explained by political factors.  Essentialist explanations may be perfectly valid—but may be better used to explain what the world would look like if textualism were mandated for everyone.²²

This insight is applicable to any interpretive method, whether statutory or constitutional, and allows us to think more seriously about a wide range of interpretive questions.  For instance, a similar story could be told about intentionalism and intentionalists, pragmatism and pragmatists, or any other method and its current, voluntary practitioners.  Or one could talk about originalism (a constitutional theory also widely thought of as conservative) and originalists (a growing number of whom are liberal). There are two main differences between how this theory applies to statutes and how it may apply to the Constitution:  First, the “enacting Congress” in the case of the Constitution (the enacting “We the People”) usually does not vary that much across different constitutional provisions; the relevant enactors are predominantly people in 1787, 1791, or 1868, and, judging from the historical record, new and important amendments are unlikely in our lifetimes.  This tends to increase the substantive bias of static strategies of constitutional interpretation like originalism, since we already know what texts we are dealing with.  Second, constitutional interpretation leaves less scope for congressional overrides, though Congress can still react to decisions in ways short of overriding them.  But the basic intuition remains correct; political differences between interpretive methods may reflect differences between interpreters, not between methods.

 
III.
Is the Distinction Between Method and Practitioner Useful?

Correct or not, is this insight useful?  Distinguishing between, on the one hand, the inherent nature of an interpretive method and, on the other hand, what the method looks like in the hands of its current practitioners, is useful in a number of ways.

First, suppose we are politicians, advocacy groups, or citizens mulling over whether to support an interpretive statute mandating textualism (or any other method).  Or, suppose we are judges considering whether to mandate textualism by judicial ruling.  Then we care about what an interpretive method will look like if everyone uses it; we thus need to know about its inherent nature.  To go back to the examples above, we need to know whether, as applied by everyone, the textualist and intentionalist ranges overlap substantially, in which case we may not care very much which method is mandated, or whether they lead to substantially distinct policy results in a large number of cases.

Second, suppose we are again politicians, advocacy groups, or citizens, only this time we are wondering whether to support a judge who is up for confirmation.  The press has mined his biography and public statements for all possible clues as to his policy preferences.  In addition, he has made many statements in which he has claimed to be a textualist; and, indeed, his judicial opinions show him to be a committed and consistent textualist.  What does this mean about him?  If, in the above paragraph, we had decided that textualism was the optimal interpretive method, does this mean we need to support textualist judicial nominees?  Not at all.  There need be no connection between these two inquiries.  We may oppose voluntary textualists because they are, say, conservatives, and their choice of textualism indicated a willingness to support conservative positions generally; but we may support a rule of mandatory textualism precisely because, under a mandatory rule, textualism and conservatism are no longer linked.  It can thus be reasonable for someone to say:  “I love textualism, and would favor mandating it for everyone.  But I hate textualists, and will consistently vote against all textualist judges.”

The same analysis applies outside of the narrow context of evaluating judges.  Suppose we are a non-profit organization that advocates on public policy issues and also does litigation.  We may push for a Federal Rule of Statutory Interpretation mandating textualism, but we would not need to push textualist positions in our litigation, say if textualism led to an undesirable policy outcome in a particular case.  And, of course, the same analysis applies if we are a judge who would favor mandating textualism for everyone; this theory tells us why we may still feel comfortable not using textualism consistently in those cases where it does not serve our policy preferences.

As a final note, we may wonder whether even a purely results-oriented actor—say, a judge—might not prefer to use a particular method consistently.  Suppose you are a judge and have come across a case where textualism (your favorite method overall) fails you, and leads to a result that you don’t like.  Using some different method will serve your policy preferences in this case.  But doing so could also make you appear inconsistent, which might harm you down the road. (Public relations may be important for judges as well as for advocacy organizations, though they will only come into play to the extent that people care about methodological rather than political issues.) Moreover, to the extent that the frequent use of an interpretive method “strengthens” the method—that is, makes it more likely that the method will be used by other judges in the future—one may be willing to sacrifice one’s short-term interests for the long-term benefit of inducing others to use one’s favored method in other cases.

However, except in rare cases, this effect is probably fairly weak for the individual judge and even weaker for the individual litigation group.  Even if a judge supports a particular interpretive method, and wants it to be mandated for everyone, it still would make sense for him to sometimes diverge from that method.  The same goes for an advocacy organization, which may favor an interpretive method but not use it in every case.  Because their methodological choices usually make almost no difference to the long-term viability of the method, it usually makes little sense for results-oriented actors to sacrifice their immediate political agendas for the sake of their favored methodologies.

 
IV.
Conclusion

I have aimed to contribute to the existing literature on interpretation in two ways.  First, many positive political theory articles have assumed that judges simply want to rule a particular way—either because of their biases or because of their taste for a specific theory of interpretation—and would do so if they did not fear congressional overrides.  By contrast, I have described how a self-interested judge neither chooses a theory in the abstract nor rules according to his pure bias, but is rather drawn in different directions by different theories of statutory interpretation.  Theory and rhetoric are neither irrelevant nor determinative.

Second, most normative arguments about statutory interpretation seem to assume that a “good” theory is good for all people and for all purposes—whether one is an individual judge deciding a case; a legislator, scholar, or advocate evaluating judges; or a legislator, scholar, or advocate (or even judge) deciding on policy for the whole judiciary. Many of the articles making such arguments are judge-centered and ignore everyone else’s choice of theories, but to the extent that they advance normative arguments for some interpretive theory without explicitly distinguishing between the different contexts in which these arguments can be made, they seem to assume that the best theory for judging individual cases should also be preferred in evaluating judges or in setting policy for the judiciary.

I have sought to unbundle that package, explaining how different theories can be “best” for different people and different purposes.  In particular, whether one likes a theory, and would want to impose it on the whole judiciary, need not bear any relation to whether one should support practitioners of the theory today.  In a world of free methodological choice, those practitioners may just be showing their political biases.  Similarly, whether one likes a theory need not bear any relation to whether one would consistently use that theory in individual cases, either as a judge or as a litigator.

Actually determining which theory one “likes” is, admittedly, hard to do.  To determine the true substantive bias of different interpretive strategies, one has to take many doctrinal areas into account.  Further, the facts that bias an interpretive method in one direction or another vary over time as members of Congress and the judiciary change.  Drawing out the full consequences of adopting a method—and thus choosing a method that best suits one’s substantive agenda—may therefore be impossible.  One response to our ignorance would be to decide that it’s all a wash and ignore the whole enterprise of choosing interpretive methods on substantive grounds (though abandoning the whole exercise might be an excessive response, as different methods may still systematically differ in important ways). One might then choose no method at all, or commit oneself to a method on some other ground, like democratic or constitutional theory.

But assuming that it is possible to determine which method one likes on substantive grounds, I have tried to discipline that inquiry by showing how the answer depends on who one is and what one is trying to do.  To those who have assumed that the result of the inquiry should be the same for all actors and all purposes, this theory may suggest that they reconsider their consistency.  I do not suggest that a foolish consistency is the hobgoblin of little minds, but, as an economist, I suggest (less eloquently) that an unexamined consistency may be individually suboptimal.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Alexander Volokh is Visiting Assistant Professor, University of Houston Law Center; Assistant Professor-Designate, Emory Law School.

This Editorial is based on the following full-length Article:  Alexander Volokh, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, 83 N.Y.U. L. REV. 769 (2008).
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