Over at Law and Liberty, John McGinnis has reviewed Cass Sunstein’s new book on constitutional interpretation. Mike Ramsey already posted on the review here.
I just wanted to highlight an important aspect of McGinnis's review that points out a serious mistake by Sunstein. McGinnis writes that Sunstein:
gets Mike Rappaport’s and my views about originalism wrong in multiple ways. He describes our original methods originalism as follows: “Some people think that the Constitution must be interpreted in a way that is consistent with the ratifiers’ views about how it should be interpreted. On that view, judges need to follow the ratifiers’ theory of interpretation. If the ratifiers believed that judges should follow the original public meaning, judges must follow the original public meaning.”
But that summary is wholly inaccurate. We do not conclude that interpreters are bound to follow what the ratifiers believed the interpretive rules to be. As we say in Originalism and the Good Constitution, “Under an original public meaning foundation, the interpretive rules are those that an informed observer would have reasonably believed applied to the Constitution.” What various ratifiers believed might be evidence of the interpretive rules but they do not determine their content.
Nor do we assert that an answer to an interpretive question depends on what the ratifiers believed, as Sunstein appears to think. The answer to an interpretive question would depend on what an informed observer with knowledge of the interpretive rules would believe the answer to be. It follows that Sunstein is also wrong to think that we believe that “if ratifiers did not have a view about how the Constitution should be interpreted we are stuck; we just have a gap.” Indeed, we have argued, to the contrary, that the Constitution contains no gaps of which we are aware. The breadth of Sunstein’s misunderstanding about us should make readers cautious about crediting his descriptions of competing theories.
It is disappointing to have one’s views (unintentionally) misrepresented by an expert on constitutional interpretation. Of course, if one publishes as much as Sunstein does, it is not surprising that mistakes are going to emerge.
Posted at 8:00 AM