Cass R. Sunstein (Harvard Law School) has posted 'This' (14 pages) on SSRN. Here is the abstract:
The “supreme law of the land” includes “This Constitution,” and federal officers are “bound, by oath or affirmation, to support this Constitution.” In recent years, some people have argued that these words have strong implications for constitutional interpretation: They require oath-takers to be originalists and perhaps to follow the “original public meaning,” properly understood. An understanding of this argument requires an exploration of the diverse forms and conceptions of originalism, which raise puzzles of their own. Whether or not we embrace some form of originalism, the broader point is this: The claim that the term “this Constitution” mandates a contested theory of interpretation, including a contested form of originalism, belongs in the same category with many other efforts to resolve controversial questions in law by reference to the supposed dictate of some external authority. Whether maddening or liberating, there is nothing that communication just is, nor is there any such dictate. The choice is ours.
A principal target of the essay is co-blogger Chris Green, notably Christopher Green, “This Constitution”: Constitutional Indexicals As A Basis for Textualist Semi-Originalism, 84 Notre Dame L Rev 1607 (2009) and Evan Bernick & Christopher Green, What Is The Object of the Constitutional Oath? (2020), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3441234.
Via Larry Solum (also a leading target of the essay) at Legal Theory Blog, where it is "Download of the Week." Professor Solum comments:
A careful and important paper. Highly recommended. Download it while it's hot! … The question then becomes whether "this constitution" refers to the full communicative content of the constitutional text, including contextual disambiguation and contextual enrichment. For an argument that it does, see The Public Meaning Thesis.
I need to think about this some more, but I'm generally with Professors Green and Solum to this extent: Surely a judge who says, I will only apply half of the Constitution's clauses isn't applying "this Constitution", but only half of "this Constitution." And similarly (though perhaps more controversially), a judge who says, I will apply only the clauses of the Constitution that comport with my view of morality, or that are not incompatible with modern developments that the framers did not foresee, isn't applying "this Constitution", but only part of "this Constitution." It would not matter, I think, if the judge claimed that he was applying a theory of interpretation, rather than just disregarding parts of the Constitution. So it seems to me that Professor Sunstein needs a theory of what counts as a "theory of interpretation" that allows one to disregard the original meaning of "this Constitution", as opposed to just a decision to disregard the Constitution. And I'm not sure he has one, or that there is one.
But I also think we could as a society just decide (and may have decided) to disregard the Constitution's meaning to some extent, including the oath and the reference to "this Constitution," if we decide originalism is a bad approach. So I don't think one can escape the need for a normative evaluation of originalism.
UPDATE: JOHN VLAHOPLUS COMMENTS:
I believe that Professor Ramsey’s remarks shortchange Professor Sunstein’s arguments. Sunstein makes the very simple point that the inclusion of “this Constitution” does not prove that originalism is the correct method of constitutional interpretation. As he explains, “[m]any constitutions use a phrase of this kind (‘this Constitution’), and yet it is generally understood that they should not be interpreted in terms of” several specific versions of American originalism. Sunstein does not propose that anyone disregard any part of the Constitution. Instead, he argues that experience with those other constitutions “strongly suggests that the phrase ‘this constitution’ need not be taken to entail any particular view about how to interpret it, and that those who take an oath to support it need not endorse any theory of interpretation, though they will probably have to choose one.”
The term “this Constitution” is self-referential, and we must answer the question what that self is. We can't just assume the answer and say that anyone who answers differently is disregarding that self. Sunstein is correct if either there is no original meaning to disregard or the Constitution’s text is sufficiently general to allow current applications of constitutional text to depend in part on current circumstances. Everything comes down to whether there is a theory of interpretation that considers pluralist factors. If there is, then a judge who chooses that theory fulfills the oath to enforce “this Constitution.” One may disagree with the choice of that theory, but one cannot short-circuit the argument by pointing to the word “this.”
Take an analogy from reading recipes (discussed here at page 3). Professor Gary Lawson concedes that it is possible to interpret a recipe as including any measures necessary to achieve its overarching purpose of producing a good dish of the recipe’s type, even if those measures contradict the text’s express terms. He literally uses the word “interpret.” Purposive readings of a text interpret the text.
Now, Lawson insists that a recipe should only be read that way if the original public meaning of recipes includes an implicit (i.e., non-textual) instruction to do so. Sunstein and I would deny that you need to identify an implicit historical instruction in order to interpret the Constitution or recipes purposively. Purposive reading is valid method of “interpretation” regardless of the justification for choosing it. An originalist would require an implicit historical justification, but a pluralist would not.
Sunstein does not engage in the argument over which type of interpretation is best. He simply points out that you can’t avoid the argument by pointing to the term “this Constitution.” That self-referential term does not incorporate any particular method of textual interpretation.
Posted at 6:38 AM