Andrew Tutt Choosing Between Approaches to First Amendment Interpretation
Discussant: Vince Blasi
Fundamental questions of the options in interpretive methodology and criteria for choosing among them. Main takeaway: values, assessing and implementing them, have no place in interpretation of the 1A. Many contributions to 1A literature argue in exactly those terms: my sense of the 1A’s values is better. That’s the wrong path, because of deeper notions of what constitute interpretation. Values tend to be injected in 1A theory in different forms: (1) making claims about the structure of the constitution that support one or another contentions; (2) asserting that the constitution makes certain moral commitments which bear on interpretation; (3) making arguments from precedent; (4) making arguments about intended or widespread public meaning of the clause at the time of enactment, substituting for semantic meaning of text. These are all ways to smuggle values in and all problematic.
Ultimately it comes down to the authority of the gov’t to make someone obey law: why is it legitimate to make a dissenter do so? Two competing conceptions of legitimacy: (1) pedigree—a particular claim to obedience can be based on the history of the constitutional provision, especially the fact of ratification. (2) Merits—legitimacy derives from the claim that this constitution is good. Explores relationship b/t those competing sources—he concludes that the proper source is (1) not (2)—and theories of const’l interpretation, originalism, living constitutionalism, and pragmatism. It gets complicated in that various theories can plausibly be defended as based on either (1) or (2). Then bring them into conversation w/1A theories.
Q: what is the constitution? It’s legitimacy that makes the constitution law and entitles the application of the coercive power of the state to citizens who wish to resist. You could imagine other answers, such as: does it serve the objectives that led the community to opt for (a) the whole project of const’l limitations, (b) a written constitution, (c) a written constitution with limited powers, or (d) a written constitution with certain rights.
Look at practice/pragmatism: what judges invested with this power do in terms of what authorizes their authority. His claim is that even if you buy into the pragmatist premises, if you look at American judges, they don’t really feel bound by what other judges do; they go deeper and are actually guided by their judgments about legitimacy. Can’t shortcircuit his claims by pragmatic moves.
Pedigree as source of legitimacy. There are fundamental challenges to the controlling claim of pedigree; you’re asking for obedience from people here, now, invoking a ratification phenomenon more than 200 years old: dead (white) hand. That’s answered sufficiently by the ongoing potential for amendment (Amar) or constitutional moments that allow ratification by more than formal approval of a text (Ackerman). Or Balkin’s potential for redemption/correction w/in the system itself.
Say more about the idea of a “rule of recognition” grounded in sociological acceptance—we wouldn’t accept a violation of the 35 year old minimum for President even if people overwhelmingly wanted to ignore that. Pedigree theory requires the interpreter to decide what it was that was written & enacted. It’s not the writtenness, but the fact of ratification, that matters. So we need to know what they ratified. Admirably open in canvassing what they might have done: a vision that the Framers had; faint-hearted originalism; original expected applications.
Blasi detects that in his choice of historical account of the fact of ratification, he’s influenced by his own values in terms of confining judicial discretion as much as possible/worrying about runaway interpretation. Tries to link that w/legitimacy, but while most parts of the paper spell out the alternatives, when addressing “what was ratified” the paper is a little conclusory and seems value-driven, inconsistent w/effort to expunge values. Does note that many originalists today really push judicial restraint, though no one ratified restraint. Madison’s Virginia Report, 8 years after ratification, offers a great argument about why seditious libel violates the 1A, but he was only the drafter and not the ratifier of the 1A; that vision was only spelled out 8 years later, and who knows what he thought in 1791. That’s what leads to the paper’s conclusion: modern 1A law is problematic in terms of the key concept.
Pretty good argument for saying that the ratifiers ratified certain structures, priorities, relationships. Even the semantic meaning that he privileges doesn’t simply address specific words or phrases; there are larger linguistic units of reference in the text itself. Madison’s constitutional theory: worried a lot about legitimacy, but his view of interpretation was: text-bound attention to structures and functions. Actual meaning: the paper decides the right is the right of freely examining public measures & characters, not from the text but implicit in the structure. Assumption: gov’t powers are limited, but sometimes there will be violations of those limits—how will we remedy those violations? By calling public att’n to them. That’s the preservative right in the constitution. Is that values, functions, structures, what? It’s not either values or narrow word-bound clause-bound “here’s what they ratified.” Madison at least thought that they ratified something rather different, though he did care very much about what they ratified. There’s a kind of middle possibility worth considering.
And then I had to leave to make my train, but that was quite a conference!