Originalism

Jack Balkin and various NRO folks have been mixing it up about a perennial topic of dispute: originalism. In his latest post, Prof. Balkin says:

For me the Constitution involves present day commands that bind current generations just as much as past ones. Therefore if one thinks that great achievements like the Civil Rights Act are an important part of our political and constitutional traditions, one can't adopt a theory of interpretation that renders most of these laws unconstitutional, even if we keep judges from remedying the unconstitutionality.

Matt strongly objects to this sort of reasoning from our existing legal traditions; he regards it as the essence of results-oriented jurisprudence. I disagree. I think that any serious theory of interpretation-- and by serious I mean one that actual judges and actual political officials living in the present can use-- has to recognize key achievements of American law as a starting point for understanding how we interpret our Constitution.

This is the nub of the disagreement, I think. For some people, the phrase "theory of interpretation" means, "how do we figure out what a document means." For Balkin, when referring to the Constitution, the phrase "theory of interpretation" means, "how do we figure out what a document means, subject to the constraint that it simply must mean X, Y, and Z, where X, Y, and Z are things that I'd like it to mean."

I don't think that in any other context of law -- or life -- the latter would be recognized as a "theory of interpretation" at all. No one would say, "Here's a contract. What does it mean? Well, my 'theory of interpretation' is that the contract means what it says. But by the way, no matter what the contract says, it absolutely must be interpreted to mean that the buyer has the option to pay the seller on a 12-month payment plan, because I prefer 12-month payment plans over an upfront payment." No one would say, "Here's a recipe for an entree. What does it say? Well, my theory of interpretation is that no matter what it says, it must be 'interpreted' to include garlic salt, because I like garlic salt."

That's not a "theory of interpretation.". It's a theory for overriding the document in question and getting what you want instead. Maybe the thing you want instead (garlic salt, etc.) is a wonderful thing. Maybe you shouldn't pay attention to the document if it stands in the way of that wonderful thing. But you're not really interpreting the document if you have a predetermined conclusion in mind, that's going to apply no matter what the document actually says.