32 Pages Posted: 19 Jan 2017 Last revised: 17 Feb 2017
Date Written: January 17, 2017
Many disputes in constitutional theory — in particular, disputes over forms of originalism and non-originalism — would be far clearer if they employed two distinctions that philosophers have drawn repeatedly in dealing with the nature of reality.
First, we should distinguish constitutional epistemology from constitutional ontology. Constitutional epistemology (together with epistemically-freighted constitutional pragmatics) tells us who decides questions of constitutional interpretation: the distribution of interpretive authority between government and citizens, between and within branches of government, and for all of these interpreters, the distribution of such authority over time. It tells us what burdens of proof govern different interpreters’ determinations, and what sorts of evidence might satisfy those burdens. Akin to the Erie/Hanna regime, such “procedural” matters of constitutional epistemology and pragmatics could be changed radically even if the underlying “substance” of constitutional interpretation — what makes claims about the Constitution true or false — stays the same, and vice-versa. Attention to this epistemic-ontological distinction undermines or complicates recent arguments against originalism by Richard Fallon, Daniel Farber, Martin Flaherty, Helen Irving, Andrew Koppelman, Suzanna Sherry, and David Strauss, as well as a classic argument by Justice Jackson, but also raises trouble for arguments for originalism by the late Justice Scalia and Lawrence Solum. Epistemic vices of either a fixed-meaning or a common-law Constitution cannot undermine a constitutional theory’s ontological virtue — if it possesses it — of accurately representing our actual Constitution, and epistemic virtues cannot compensate for the ontological vice of wrongly identifying the Constitution itself.
Second, as a precursor to assessing constitutional theories’ ontological virtues, we should classify forms of originalism or non-originalism based on their constitutional truthmakers. Do they have any at all? Do they have more than one? Pragmatists deny the existence of any truthmaker external to the practice of judging, while pluralists point to more than one. Truthmakerless constitutional theories like those of Judge Posner, Eric Segall or the early Felix Frankfurter cannot vindicate “wrong the day it was decided” (WTDIWD) data from the Court itself, and irreducibly plural constitutional theories like those of Philip Bobbitt cannot vindicate such data in cases where constitutional modes conflict. An integrated constitutional truthmaker like that proposed by the early Richard Fallon, which sets out a criterion for picking winning and losing constitutional arguments when different modes clash, has a distinct ontological advantage over pragmatist or irreducibly plural constitutional theories. Even a theory merely positing an unknown proper commensuration of conflicting constitutional arguments into answers for particular cases — that is, a reducible pluralism — can vindicate WTDIWD data in a way pragmatism and Bobbitism cannot.
Single-truthmaker forms of living constitutionalism are thus ontologically preferable to no-truthmaker or multiple-truthmaker forms. We can then ask (as I do and will do in earlier and future work) whether that single truthmaker matches, or does not match, the “this Constitution” to which Article VI refers, and to which, on a naïve view of our current practices, current officeholders swear an oath.
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