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Abstract: I deploy the sense-reference distinction and its kin from the philosophy of language to answer the question what in constitutional interpretation should, and should not, be able to change after founders adopt a constitutional provision. I suggest that a constitutional expression's reference, but not its sense, can change. Interpreters should thus give founders' assessments of reference only Skidmore-level deference. From this position, I criticize the theories of constitutional interpretation offered by Raoul Berger, Jed Rubenfeld, and Richard Fallon, and apply the theory to whether the Fourteenth Amendment forbids racial segregation in public schools.
originalism, constitutional interpretation, philosophy of language, Frege, Mill, Carnap, sense-reference distinction, intension-extension distinction, connotation-denotation distinction, Brown v. Board of Education, Jed Rubenfeld, Richard Fallon, Raoul Berger, Michael McConnell
Abstract: The Supreme Court has long understood the Equal Protection Clause--"[N]or [shall any State] deny to any person within its jurisdiction the equal protection of the laws"--as a generic antidiscrimination provision. This article challenges that interpretation. Applying a constitutional theory that takes the sense historically expressed by constitutional language as interpretively binding, but not that language's historically-understood or historically-intended referent, I argue that the Clause instead requires States to supply the "protection of the laws"--and supply it equally--to everyone subject to the State's decrees. Elsewhere I consider how the allegiance-for-protection contractual tradition and the history of "protection of the laws" support a duty-to-protect reading of the Clause. This article reviews how a duty-to-protect reading of the Equal Protection Clause was adopted in the Civil Rights Act of 1871 and explained at great length in the debates leading to it, and argues that the Privileges or Immunities Clause, which speaks of the rights of citizens, makes far more sense than the Equal Protection Clause as a provision forbidding second-class citizenship and civil inequality. The duty-to-protect view found a few early judicial adherents, but it was soon swamped by a generic antidiscrimination reading after Slaughterhouse. A duty-to-protect Equal Protection Clause would forbid gross misbehavior in the provision of protective services, act as an open-courts provision akin to Magna Charta paragraph 40 and related state-constitutional provisions, require that police services be supplied equally, forbid inequalities like race-based jury nullification that favor criminal or civil defendants, fill a gap in the reasoning in Roe v. Wade on the inference from fetal personhood to the requirement of protection, require that the marital rape exemption be abandoned, suggest serious constitutional troubles for our current system of prosecutorial discretion, and allow the federal government to provide law-enforcement and remedial services when states have failed to do so.
Fourteenth Amendment, Equal Protection Clause, Textualist Semi-Originalism, Theory of Original Sinn, Duty to Protect, Civil Rights Act of 1871, Privileges or Immunities Clause, Equal Citizenship, Aliens and Citizens, Marital Rape Exemption, Prosecutorial Discretion, Right to a Remedy, Roe v. Wade
Abstract: Both criminal law and the law of punitive damages feature a division of authority over when a corporation may be punished. In both fields, some states allow punishment when any employee misbehaves in the scope of employment, but other states allow corporations to avoid punishment by claiming that a misbehaving employee's mental states should not be imputed to the corporation because he was not sufficiently important in the corporate hierarchy. However, these divisions of authority do not match: there is no correlation between the rules individual states follow for criminal law and the rules they follow for punitive damages. This article argues that this mismatch is unjustified; the same rules should govern the food-chain question for punitive damages and for criminal law.
Punishing Corporations, Corporate Punishment, Corporate Punitive Damages, Corporate Crime, Corporate Criminal Liability, Due-Diligence Defense
Abstract: The Supreme Court has long understood the Equal Protection Clause - "[N]or [shall any State] deny to any person within its jurisdiction the equal protection of the laws" - as a generic antidiscrimination provision. This article challenges that interpretation. Applying a constitutional theory that takes the sense historically expressed by constitutional language as interpretively binding, but not that language's historically-understood or historically-intended referent, I argue that the Clause instead requires States to supply the "protection of the laws" - and supply it equally - to everyone subject to the State's decrees. This article reviews evidence from the 1866 Congressional debates, explains how the language of the Clause in its historical setting expresses the allegiance-for-protection contractual tradition, documents the extensive tradition of using "protection of the laws" to refer to the remedial and law-enforcement functions of government, and criticizes the textual foundation of the traditional view of the Clause. Elsewhere I consider subsequent interpretations of the Clause and explain why a duty-to-protect Equal Protection Clause would have great significance today.
Fourteenth Amendment, Equal Protection Clause, Textualist Semi-Originalism, Theory of Original Sinn, Duty to Protect
Abstract: Debate over proper methods of constitutional interpretation is interminable, in part because the Constitution seems not to tell us how it should be interpreted. I argue here that this appearance is misleading. The Constitution repeatedly refers to itself with the phrase "this Constitution," and claims to make itself supreme law of the land. Debates over what should be supreme for constitutional interpretation can be resolved if, but only if, we have a sufficiently detailed understanding of what the Constitution is. I consider seven possibilities for what might be the interpretively-supreme "Constitution": (1) the original expected applications; (2) the original ultimate purposes; (3) the original textually-expressed meaning or Fregean sense (the alternative I favor); (4) a collection of evolving common-law concepts; (5) a text expressing meaning by today's linguistic conventions; (6) a collection of moral concepts refined through an evolving tradition of moral philosophy; and (7) a collection of non-binding recommendations. Resolving between these alternatives is possible if, but only if, we know that "this Constitution" means. Functional or normative arguments about methods of constitutional interpretation are therefore relevant only insofar as they are probative of the meaning of the actual Article VI.
The phrase "this Constitution" on its own is not perfectly perspicuous; the "this Union" clause in Article IV shows that "this" can refer to entities that are neither composed of text nor fixed and unchanging. It is not immediately clear what event - what "constituting" - the word "Constitution" refers to. Canvassing in detail the indexical language of the federal and state Constitutions, I argue that the Constitution is composed of language whose meaning is fixed at the time of the Founding. The close textual relationship of "this Constitution" to forms of "here" and to "enumerate" and explicit references in state constitutions to "this Constitution" appearing on parchment, including bits of language, and doing things "expressly" all point toward a Constitution that is composed of language, and so to textualism. The use of "now," the distinction in the Preamble between "ourselves" and "our posterity," the specification in the Preamble and Article VII of ratifying conventions as the constitutional author, and the reference to "the time of the Adoption of this Constitution" all point toward a non-intergenerationally-authored constitution that speaks at the time of the Founding and is historically fixed.
Supremacy Clause, Constitutional Ontology, Textualist Semi-Originalism, Textualism, Originalism, Constitutional Theory, Constitutional Interpretation, Theory of Original Sinn
Abstract: The admiralty case now at the Supreme Court, Exxon v. Baker, presents the food-chain question for corporate punishment: how high in the corporate hierarchy must misbehavior go before the corporation itself may be punished? Every American jurisdiction allows corporations to be punished with criminal liability and with some form of punitive damages. In both criminal law and the law of punitive damages, there is persistent division about the food-chain question. However, the fields develop with virtually no contact from one to the other, and the rules states adopt in each field have no correlation with the rules they adopt in the other. I survey approaches in criminal law and punitive damages, argue that states have good reason to adopt the same rule in both fields, and point to several particular ways in which the development of the law in one field can profit from the insights of the other.
Vicarious Liability for Punitive Damages, Corporate Criminal Liability, Punishing Corporations, Exxon v. Baker
Abstract: Extensive literatures exist on the epistemology of testimony, memory, and perception, but for the most part these literatures do not systematically consider the extent of the analogies between the three epistemic sources. A number of the same problems reappear in all three literatures, however. Dealing simultaneously with all three sources and making a careful accounting of the analogies and disanalogies between them should therefore avoid unnecessary duplication of effort. Other than limits on the scope of which memorially- and testimonially-based beliefs should be included in the Parity Thesis, I argue that most of the disanalogies that different philosophers have proffered between the sources do not mark distinctions among the universes of possible testimonially-, memorially-, and perceptually-based beliefs regarding the explanation of those beliefs' epistemic status. I first criticize the suggestion that perception is a generative epistemic source, while testimony and memory are not; I propose and defend counterexamples in which testimony and memory produce new beliefs. Next, I criticize a variety of distinctions that have been drawn between testimony and perception, taken chiefly from the reductionist-antireductionist literature on testimony. I criticize the suggestion that the conceptualization of content and the transparency of experience affect the epistemologies of testimony and perception in different ways. Regarding memory and testimony, I advocate modeling testimony on the legal relationship of a principal and an agent, arguing that law's apparatus used to analyze such situations suggests that using others' epistemic services in testimony will supply the same epistemic benefits and burdens as if we had performed those epistemic tasks personally and then relied only on memory. I apply this analysis to the transmission of defeaters in testimony. I argue that memory does feature the epistemic equivalent of a perceptual image and that both perceptually- and memorially-based beliefs can concern either the past or the present. Finally, I construct a set of six transformations that turn individual possible instances of perceptually-, memorially-, or testimonially-based beliefs into individual possible instances of the other two types of beliefs without changing the structure of those beliefs' epistemologies.
epistemology, testimony, memory, perception
Abstract: While many scholars have made originalism-based suggestions for the overruling of the Slaughterhouse Cases and resurrection of the Privileges or Immunities Clause, very few scholars have given particular attention to the word “of” in “privileges or immunities of citizens of the United States.” Because the words “privileges or immunities” were considered to refer generally to rights, even among those who disagreed about the meaning of the clause, they are not the entire key to understanding the Privileges or Immunities Clause. The key is instead what relationship a right must bear to “citizens of the United States” in order to count--that is, the meaning of “of.”
This paper will apply a form of textualist semi-originalism that takes the historic sense, but not the historic reference, as interpretively binding. Framers’ analytic (purely-definition-based) judgments of constitutionality are binding, but not their synthetic (partly-fact-based) ones. I will isolate and evaluate six possible basic readings of “of”: (A) “possessed in virtue of the existence of the Union by” (the Slaughterhouse-Cruikshank theory); (B) “possessed under the Constitution against the federal government by” (incorporation by definition, the theory of Justice Black and Democratic opponent of Reconstruction Senator Allen Thurman); (C) “traditionally possessed (e.g., under the common law and state constitutions) by” (the reading of Republican Senator John Sherman, and one reading of Corfield, focusing on “those privileges and immunities … which have, at all times, been enjoyed by the citizens of the several states which compose this Union”); (D) “traditionally possessed in 1868 by” (Earl Maltz, Steven Calabresi, and Sarah Agudo’s view) (E) “possessed as a moral matter by” (another reading of Corfield, focusing on “those privileges which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments”) (F) “generally possessed locally by” (the antidiscrimination reading championed by John Harrison, Michael McConnell, and Justice Field).
Ultimately, I defend a (C)-or-(F) reading of "of." We need (F) because Section One as a whole must contain an antidiscrimination norm robust enough to support, for instance, racial discrimination regarding the ownership of land, but the Equal Protection Clause applies to aliens, who were uncontroversially denied the ability to own land on racial grounds. However, we must also take account of Jacob Howard and John Bingham’s Corfield- and incorporation-based accounts of the privileges of citizens of the U.S. We can best do so by taking Howard and Bingham’s statements about incorporation as synthetic, not analytic, judgments: that is, they were based on the belief that the rights in the Bill of Rights were, in fact, strongly rooted in the American tradition of civil liberty.
Interpreters applying synthetic incorporation under definition (C) rather than analytic incorporation under definition (B) to a particular question like the incorporation of the Second Amendment must do more than simply note that a particular right is in the Bill of Rights; they must do the sort of analysis undertaken by the Ninth Circuit panel opinion in Nordyke v. King.
McDonald v. Chicago, Meaning-Application Distinction, Sense-Reference Distinction, Analytic-Synthetic Distinction, Privileges or Immunities Clause, Second Amendment Incorporation
Abstract: The law requires that plaintiffs in fraud cases be 'justified' in relying on a misrepresentation. I deploy the accumulated intuitions of the law to defend externalist accounts of epistemic justification and knowledge against Laurence BonJour's counterexamples involving clairvoyance. I suggest that the law can offer a well-developed model for adding a no-defeater condition to either justification or knowledge but without requiring that subjects possess positive reasons to believe in the reliability of an epistemic source.
law and epistemology, Laurence BonJour, clairvoyant examples, externalism, internalism, justification, justified reliance, justifiable reliance, fraud
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