Sunstein and Originalism

One of the Federalist Society events I saw was a debate over originalism between Cass Sunstein and Charles Cooper. Here are Sunstein's thoughts:

Originalism and the Federalist Society
On Saturday, I was at the Federalist Society meetings in Washington, DC, for a lunch-time debate on my new book, Radicals in Robes (inflammatorily and probably unfortunately named, I know). The specific topic was whether originalists are indeed "radicals"; Charles Cooper, a Washington lawyer, spoke in defense of originalism. He and others made a number of good points, of course, but 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. The difference is important, because those who focus on the original public meaning do not need to ask questions about psychology or subjective understandings.

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. In contract law, we might be concerned with original meaning (though we aren't always concerned with that); in statutory interpretation, we might be concerned with current rather than original meaning (as we sometimes are); in constitutional law, it's a question whether or not we should be concerned with original meaning. * * *

At the debate, Sunstein said something like this: "Would we interpret Hamlet by asking what were Shakespeare's private subjective understandings, or asking what the audience in Shakespeare's day thought? The idea is preposterous." That's a paraphrase, but I know he used the word "preposterous."

Not so quick. If it is preposterous to try to understand what Shakespeare meant by his words or how his audience would have understood those words, how come there are annotated editions of Shakespeare? The whole point of annotated editions is that we all recognize that the meaning of words changes, and that if you want to know what a Shakespeare play was really saying, you have to know how the words and phrases were being used at the time.

For example, when Hamlet says, "I know a hawk from a handsaw," it would be crazy to "interpret" this line in light of modern meanings or understandings. Everyone accepts that the only way you can even hope to understand this line is to examine how the word "handsaw" would have been understood at the time or what Shakespeare likely meant (i.e., a variant on "hernshaw," which meant "heron").

Now, it's certainly true that on a deeper level, different people will perceive different themes or messages in Hamlet. One person reads Hamlet as shedding light on gender relations in Shakespearean England, another reads it as a meditation on death, etc. Two points, though: 1) In none of these cases are people forcing their imputed message on other people, while in the interpretation of the Constitution (or statutes), judges are forcing other people to abide by their interpretation. As a prima facie matter, this suggests to me that judges ought not to feel quite so free to come up with an inventive "interpretation" that reflects mostly on their own subjective understandings. 2) Even as to deeper interpretations of Hamlet, the text and intent still bear a lot of weight. If someone "interpreted" Hamlet as a screed against global warming or as a holy text for worshipping the "Hamlet God," the quite proper response would be, "Your interpretation has no basis either in the text of Hamlet or in Shakespeare's intentions."