Abstract
This paper is a contribution to the development of a common-law approach to constitutional interpretation. It provides an answer to the objection that drawing on common-law principles in the interpretation of a constitutional text makes the meaning of its normative terms dependent on the subjective moral views of judges. To this end, it uses David Strauss’ notion that any interpretation of constitutional law should be compatible with the current meaning of the words of which a constitutional text is composed. It argues that the current meaning of words referring to a constitutional text’s normative concepts is tied to the current moral and political commitments of the community. As a result, judges who employ the common-law approach to constitutional interpretation are able to ensure that their decisions are in harmony with developments in the community’s own moral and political commitments.
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Notes
- 1.
Henceforth, the term ‘common law constitution’ should be taken to refer to that part of constitutional law that develops through the process of common law reasoning. The term ‘written constitution ’ should be taken to refer to the text that was written and presented as the text of the constitution. The more general term ‘constitution’ will be used to refer to a complex entity consisting both of the written constitution and the common law constitution so understood. It is not completely clear how Strauss uses these terms, but for the sake of the clarity we simply stipulate these usages.
- 2.
As noted, Strauss argues that the US constitution both should be and is characteristically treated this way. Our focus will be on the normative aspect of his argument.
- 3.
- 4.
The theory is, of course, open to other objections as well, many of which Strauss admirably deals with in his book. For instance, one might question the extent to which there is any agreement at all as to what ‘equal protection’ or ‘freedom of speech’ mean within contemporary American society. Our focus, however, will be on this one particular objection: that meanings change over time, thus robbing the written constitution of any capacity to serve as a stabilizing, common ground.
- 5.
For Wittington’s approach see, e.g. Constitutional Construction (Whittington 1999a, b) & Constitutional Interpretation : Textual Meaning, Original Intent, and Judicial Review (Whittington 1999a). Larry Solum’s views can be found in, e.g, “What is Originalism? The Evolution of Contemporary Originalist Theory” (Solum 2011 ). For Justice Scalia’s views, see “Originalism: The Lesser Evil” (Scalia 1989) & A Matter of Interpretation: Federal Courts and the Law (Scalia 1997). Dworkin’s theory of interpretation is developed and defended in a number of places, most notably Freedom’s Law: The Moral Reading of the American Constitution (Dworkin 1996) & Law’s Empire (Dworkin 1988).
- 6.
For his analysis of Brown and Plessy, see Strauss (2010, chapter 4).
- 7.
Theories of precedent are varied and somewhat controversial. For our purposes here we rely on one of the most widely used theories according to which, in citing her reasons for judgment, a judge establishes a rule that serves as the ratio decidendi of the case. Those reasons are whatever facts the judge cites as sufficient to justify the judicial action taken. In citing facts A, B and C, as her reasons for holding the defendant liable, X, the judge establishes a rule to the effect that whenever these facts obtain, X must be the result, i.e., the defendant must likewise be held liable. For further discussion of distinguishing and overruling precedents, see Joseph Raz (1977, 183–192). See also A.W.B. Simpson (1963). For a very helpful survey of rival theories of precedent see Lamond (2014).
- 8.
Since Strauss utilizes the US Constitution to illustrate the role of a common law , written constitution , his focus is on the English language in which it is expressed. We will follow his lead here with the understanding, of course, that the relevant language is whatever native language is used in writing a constitution.
- 9.
We are aware that countries like Canada and the US present complicated cases when it comes to speech communities . Even though the US has one official language, many different languages are spoken in it. Arguably, Spanish is so prevalent that it might be considered America’s second unofficial language. Canada, of course, has two official languages, French and English, and the written constitution is expressed in both languages. It may be a problem that so many citizens cannot speak English (or speak it only poorly) in the US, where all official legal matters are dealt with in English. Such individuals may end up being more or less excluded from the discourse that shapes the concepts invoked in the constitution. However, that linguistic minorities do not participate (at least fully) in influencing the meaning of the constitution is only one of many problems they face. The exclusion of linguistic minorities in all kinds of ways is a serious political and social problem. Canada, on the other hand, introduces a somewhat different complication. Here it seems that two speech communities can influence the meaning of a written constitution that is expressed in two different languages. Given that many Canadians speak both languages at some level of competence, that all laws are written and applied in both languages, and that Canadians have the right to express themselves in all matters involving the state – including matters that impinge on the application and development of constitutional law – in either official language, perhaps the two communities can actually be thought of as one. Or perhaps the fact that there are two official versions of the written constitution, one in English the other in French, means that there are, in actual fact, two separate, written constitutions each of whose meaning is a complicated function of a range of factors. Among these might be social and moral developments within the two speech communities, and legal decisions concerning how a development in the meaning of the one constitution influences the meaning of the other. These questions are both puzzling and fascinating but, fortunately, there is no need for us to answer them here. The point remains that, whatever speech community is in play, developments within it can influence developments in the meaning of the relevant written constitution.
- 10.
Of course, not all constitutions exist at a national level. Many federal states include provinces or states each of which has its own constitution. Again, this can introduce complications worthy of exploration on another occasion. Fortunately, it is one that, once again, we needn’t address here since it does not disturb the force of our overall argument that a written constitution , interpreted in light of contemporary meanings within a relevant speech community, can play the stabilizing role that Strauss attributes to them. All references to nations, countries and national speech-communities should be read with this caveat in mind.
- 11.
See, e.g., Wittgenstein , who believed that the meaning of a word is its use (Wittgenstein 2009). Other philosophers who developed usage theories of meaning include, e.g. Michael Dummett and J.L. Austin. However, one does not have to agree with these authors that meaning just is its use to accept the much more modest idea that linguistic usage has some significant influence on meaning. It is only on this more modest idea that we draw in what follows.
- 12.
“The Governor General shall from Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the provisions of this Act, every person so summoned shall become and be a member of the Senate and a senator.” (British North America Act 1867, 30–31 Vict., c. 3 (UK)).
- 13.
For a detailed description see e.g. Waluchow (2011).
- 14.
One must be careful here. In instances where the community’s morality is underdetermined on some issue, the judiciary can provide a valuable service by specifying or determining the relevant moral notions for the community. But to the extent that such specifications are consistent with the community’s other fundamental moral beliefs and commitments, its democratic legitimacy can be preserved. On this see, e.g., Waluchow (2007 232–236; 2015).
- 15.
The most pressing hazard, of course, is that our choices today end up being severely constrained by the dead hand of the past. This is said to be undesirable in at least two ways. First, the Constitution is rendered incapable of dealing sensibly with radically changed social and technological circumstances. Constitutional norms capable of dealing sensibly and responsibly with blunderbusses are unable to do the same in a world populated by drones, heat-seeking missiles and automatic weapons. Second, contemporary citizens are arguably disenfranchised if their choices today are severely constrained by constitutional choices made decades or centuries ago. Democratic legitimacy demands ongoing self-government, not a form of self-government that empowers past selves to encumber the choices of later selves.
References
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Cases Cited
Donald C. MacPherson v. Buick Motor Company 111 N.E. 1050, 217 NY 382 (1916).
Henrietta Muir Edwards et. al. v. Attorney General of Canada et. al. A.C. 124, 1929 UKPC 86 [1930] A.C. 124.
Homer A. Plessy v. John H. Ferguson 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896).
Oliver Brown, et. al. v. Board of Education of Topeka et. al. 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954).
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Waluchow, W.J., Stevens, K. (2016). Common Law Constitutionalism and the Written Constitution. In: Bustamante, T., Gonçalves Fernandes, B. (eds) Democratizing Constitutional Law. Law and Philosophy Library, vol 113. Springer, Cham. https://doi.org/10.1007/978-3-319-28371-5_13
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