Cass Sunstein (Harvard) has posted “Interpretation Is Many Things” on SSRN. It is a draft of his contribution to an exchange between us that will appear in the Notre Dame Law Review Reflection (stay tuned for my reply!). Here is the abstract:
The word “interpretation” covers a range of practices, including but not limited to the identification of intended meaning; use of original public meaning; and efforts both to fit and to justify existing materials. We can find different understandings of the word “interpretation” within and across fields, including literature, art, music, dance, and law. In constitutional law, most of judicial “interpretation” does not focus on intended meaning. A wide range of important constitutional cases do not rely in any way on intended meaning. A wide range of Supreme Court justices do not rely on intended meaning. The choice among different methods of “interpretation” is inescapably normative; it depends on which method would make our constitutional order better rather than worse.
Sunstein is responding to my article, “What Interpretation Just Is and Why It Matters,” which is forthcoming in the Notre Dame Law Review. Here is the abstract of my article:
Legal scholars have argued that there is nothing that interpretation just is and that even if there were, it would not matter. This Article challenges both claims. It argues that to interpret a text just is to form a judgment about what its author intended to communicate and that this matters for at least three reasons. First, given that judgment is essentially aimed at descriptive accuracy rather than normative desirability, interpretation’s nature as judgment about intended meaning implies that it makes no sense to speak, as many scholars do, of adopting a method of interpretation on normative grounds. Second, interpretation’s nature as judgment about intended meaning supports a version of originalism by showing that rival methods of construing constitutional and statutory meaning do not count as methods of interpretation, casting doubt on their fidelity to the lawmaker’s authority. Third, as applied to the Constitution, this version of originalism is heterodox in several ways. It is an originalism focused on intended meaning, not public meaning or legal meaning. It is an originalism justified by its fidelity to the law, not its ability to promote settlement or judicial restraint. And if recent scholarship on the Bill of Rights is correct, then it is an originalism that in some respects may look more like common-law or moral-reading approaches to constitutional adjudication than conventional originalist approaches.
And my article, in turn, is reacting to Sunstein’s article “There Is Nothing That Interpretation Just Is” along with Francisco Urbina’s “It Doesn’t Matter What ‘Interpretation’ Is.”
Read them all and decide for yourself which you find most persuasive!
Posted at 7:09 AM