Fish- Blog Post 10
In A Matter of Interpretation, Laurence Tribe engages critically with the arguments presented by both Justice Scalia and Dworkin. Because both Scalia and Dworkin endorse some forms of originalism, Tribe stands in opposition to their views as he rejects originalism entirely. This is clear when he states that “I believe that when we ask what a legal text means . . . we ought not to be inquiring into the ideas, intentions, or expectations subjectively held by whatever particular persons were, as a historical matter, involved in drafting, promulgating, or ratifying the text in question” (65). He pushes further than Scalia or Dworkin in asserting that the text is not meant “to remain static” (70).
Yet, in contrast with that rejection of originalism and of “static” meaning, Tribe interestingly also claims that he does not “regard the Constitution as something that ‘grows or changes’ by some mystical kind of organic, morphing process of the sort that Justice Scalia mocks” (73). In other words, Tribe rejects living constitutionalism and constitutional originalism. While there are plenty of flaws with both originalism and living constitutionalism, rejecting both does is a questionable stance to take.
Especially when it comes to constitutional interpretation, one can either look at the text from an originalist lens (or, for Dworkin, from a semantic originalism lens or expectation originalism lens), or from the perspective of living constitutionalism. By rejecting both, Tribe’s approach to textualism has no footing. The strange part of his dual rejection is the admittance of the fact that “it is easier to criticize than create; that one can’t beat even a bad theory with no theory” (73). Instead of attempting to create his own theory as a response, he chooses to argue that he is “doubtful that any defensible set of ultimate ‘rules’ exists” (73). Will this may be true, developing no theory at all and rejecting the two roots of theories leaves little room for the imagination. Instead of trying to develop a theory, Tribe simply is arguing there should be no theory at all as rules are impossible to develop well.
The problem is, any effort to interpret the text without any guiding principles or constraints becomes extremely subjective and difficult to apply. Textualism and the importance of stare decisis can only help so much if there are no guiding principles. Tribe’s rejection of Scalia, Dworkin, originalism, and living constitutionalism only poses more problems when it comes to subjective interpretation. Moreover, when Tribe states that “insights and perspectives” are important while rules are not, in doing so he seems to overlook that this is really all Scalia and Dworkin are proposing, with some more stringent “insights” like the canons of construction that Scalia puts forth (73). Neither Scalia nor Dworkin are claiming that their arguments are the only valid approaches to interpretation. Rather, they are presenting what, from their own perspectives, they have found to be the most successful. Tribe seems to even avoid presenting his own insights, instead choosing to reject the insights and approaches of others. I am left wondering what exactly Tribe would support.
Yet, in contrast with that rejection of originalism and of “static” meaning, Tribe interestingly also claims that he does not “regard the Constitution as something that ‘grows or changes’ by some mystical kind of organic, morphing process of the sort that Justice Scalia mocks” (73). In other words, Tribe rejects living constitutionalism and constitutional originalism. While there are plenty of flaws with both originalism and living constitutionalism, rejecting both does is a questionable stance to take.
Especially when it comes to constitutional interpretation, one can either look at the text from an originalist lens (or, for Dworkin, from a semantic originalism lens or expectation originalism lens), or from the perspective of living constitutionalism. By rejecting both, Tribe’s approach to textualism has no footing. The strange part of his dual rejection is the admittance of the fact that “it is easier to criticize than create; that one can’t beat even a bad theory with no theory” (73). Instead of attempting to create his own theory as a response, he chooses to argue that he is “doubtful that any defensible set of ultimate ‘rules’ exists” (73). Will this may be true, developing no theory at all and rejecting the two roots of theories leaves little room for the imagination. Instead of trying to develop a theory, Tribe simply is arguing there should be no theory at all as rules are impossible to develop well.
The problem is, any effort to interpret the text without any guiding principles or constraints becomes extremely subjective and difficult to apply. Textualism and the importance of stare decisis can only help so much if there are no guiding principles. Tribe’s rejection of Scalia, Dworkin, originalism, and living constitutionalism only poses more problems when it comes to subjective interpretation. Moreover, when Tribe states that “insights and perspectives” are important while rules are not, in doing so he seems to overlook that this is really all Scalia and Dworkin are proposing, with some more stringent “insights” like the canons of construction that Scalia puts forth (73). Neither Scalia nor Dworkin are claiming that their arguments are the only valid approaches to interpretation. Rather, they are presenting what, from their own perspectives, they have found to be the most successful. Tribe seems to even avoid presenting his own insights, instead choosing to reject the insights and approaches of others. I am left wondering what exactly Tribe would support.
Comments
While Tribe may not provide a clear answer, his criticisms seem to me to provide a better diagnosis of the problem at hand, and therefore open the door to the development of a better solution. By a better diagnosis I mean a more accurate description of the debate at hand, even if that description is more complex. This process can first be seen when Tribe first criticizes Dworkin’s redefinition of the Great Divide (67-68), repeatedly points out inconsistencies in Scalia’s own practice such as in the discussion of the death penalty and “subjective expectation” (66), etc. However, I believe the conclusion of Tribe’s section offers the most coherent takeaway from his criticism. Tribe writes “That neither of us has a formula for mechanically deciding which parts of the Constitution are purely mechanical, which parts (none, Justice Scalia might insist) state principles that we are bound to elaborate over time, and which combine both characteristics-- that there may indeed exist no algorithm for such decision-- may trouble some, and may inspire others, but seems to me, in either event, our inescapable fate” (94). While the new situation Tribe has described may be far more complicated to resolve, it does seem more encapsulating of the issue at hand. By pointing to a more nuanced issue at hand, this reminds me of our discussions of ideal and non-ideal theory. Perhaps the contradictions he has raised show that an absolute devotion to either ideal theory isn’t feasible, and we must first recognize the complexities at hand to reach a less black and white solution, a solution reflective of the amount of grey area Tribe has shown exists.