Interpretation, Ethos, Memory

Thoughts on Richard Primus' Recent Paper

Over the past few months, I have given thought to questions of constitutional interpretive methodology. How should we interpret the constitution - and the Charter in particular? And, at the meta-level, how do we decide whether one way of interpreting the constitution is better than another? Is that a question that can be determined by law, or must we appeal to something beyond law? A recent paper by Richard Primus has spurred me to return to these questions.

(As is so often the case, my attention was drawn to this paper by the indefatigable Lawrence Solum - who expresses thoughts of his own. I would be remiss if I didn’t add that Solum has just started a Substack for his Legal Theory Blog.)

Primus’ paper has an unexciting title: “Is the Oldest Constitutional Question Substantive or Methodological?” But the paper itself is very, very exciting. For what Primus purports to do is offer a descriptive account of how (American) constitutional argumentation is actually done by the people who do it - put differently, how the game of constitutional argumentation is played; how (American) lawyers and judges actually decide whether a given interpretation succeeds or fails, or anyway is better or worse than others. Constitutional law is an ongoing social practice, not a static body of rules hovering above us. We do constitutional law when we treat each other as mutually accountable for the interpretations we reach; when we regard ourselves and others as under a kind of obligation to defend those interpretations by appealing to the kinds of reasons that others will recognize as reasons for adopting one interpretation over another. Even when we lock ourselves away in a quiet room to do constitutional interpretation on our own, we assess the strength of our justifications by imagining what others in the community of constitutional interpreters would make of them. In that sense, there is no truly private constitutional argument - we are always in real or imagined dialogue with others.

This is, I think, right - and not just in America, but everywhere that has a flourishing system of constitutional law. How would we know that a system of constitutional law is thriving if not because lawyers and judges think it is worth arguing about; making arguments that rest on putative justifications that can be accepted or rejected by one another? It is when lawyers and judges cease to bother turning their minds to constitutional questions in the first place - when they stop arguing, debating, talking - that we know the constitutional order has dried up and blown away.

All this has a deeply Dworkinian feel - and, indeed, Primus invokes Dworkin to some extent. Law, Primus says, just is an interpretive practice. But what counts as a legitimate reason for preferring one interpretation over another cannot simply be stipulated in advance or frozen in amber for all time. Over time, lawyers and judges may become more or less receptive to different ways of defending an interpretation. Interpretive methodologies come and go like fashion. As with fashion and other normative spheres, there will be periods in which the status - the acceptability - of a way of resolving interpretive disputes will be very much in dispute; other times, such disputes may quieten down (without ever quite disappearing altogether). This is so because the final arbiter for what counts as a valid interpretive methodology is, simply, the community of constitutional interpreters - the people with whom we are playing the game.¹

Thus, Primus emphasizes that there has never been a time in America when constitutional interpretive methodology was not somewhat in dispute - when arguments over how to interpret the constitution were not somewhat bound up with arguments over how to decide how to interpret the constitution. To some extent, this is a function of what we might call ‘lag’: the people who make constitutional decisions today were exposed to very different methodological theories and techniques when they were young players in the game. But even if a constitutional methodology might seem to garner widespread acceptance and approval, there is no guarantee that constitutional decision-makers will apply it to the case at hand. After all, constitutional decision-making is a high-stakes game - no judge can afford to be too pure or precious when the proverbial chips are down.² So there will always be fissures and gaps that undermine the possibility of methodological ‘closure’. There will always be “churn”. With respect to constitutional methodology, nothing is ever really settled.

How, then, do players in the game of constitutional interpretation play it? What kinds of considerations are thought to provide legitimate justifications for one interpretation or another? Put differently, what are the ways of playing the game? Primus suggests participants will appeal to four broad sources of authority. The ‘concrete’ sources are text; and judicial doctrine. The ‘abstract’ sources are structure; and ethos.

Now, many readers will be surprised to hear that text and doctrine, in Primus’ view, have only contingent significance. But I think this makes a great deal of intuitive sense. Yes, it is true that lawyers and judges take seriously the fact that the constitutional text is ‘clear’ or ‘unambiguous’. But whether or not they treat the text as clear or unambiguous will often depend on just how counter-intuitive the results of a ‘plain reading’ would be. If the plain meaning of the text strikes us as bizarre, we are as likely to conclude that the text couldn’t possibly mean what it says - and that it is therefore ambiguous. Likewise, if a line of precedents, on one reading, seems to yield wholly unacceptable results, we are liable either to reject that reading of the precedents or treat the unacceptability of those results as a reason to overturn the line of authorities altogether. In order to resist those moves - in order to avoid making an argument that will make one’s interlocutor blanch - one would need to be able to tell a compelling story about the constitutional text or precedents that gives them an air of reasonableness. As a pragmatic matter, then, text and precedent draw whatever power they have from background norms and assumptions about how the constitution is supposed to work, and what it is supposed to do. Hence, for Primus, though we might cite the text first in constitutional arguments, they inevitably lean on other arguments about structure and ethos.

Of particular importance are arguments about and from ethos: arguments about the kind of people ‘we’ are. In interpreting the constitution a certain way, one often appeals - sometimes tacitly, sometimes expressly - to the kind of people ‘we’ are and who ‘we’ strive to be; to ‘our’ aspirations for ‘ourselves’. That makes sense, Primus argues, because Americans draw much of their identity from their Constitution. In arguing about the law, lawyers and judges cannot avoid constructing competing visions of themselves as a people.

Primus is somewhat ambivalent about this American obsession with their Constitution, and is unsure about the extent to which this is unique to Americans. I would, though, venture that this is not unique at all - that constitutions, especially those containing bills of rights, are supposed to capture something deep about the people whose rights they articulate. Insofar as they are written, they are written in order to bind a people together. Indeed, even when constitutions are unwritten, as in Britain, it is often thought that their unwritten-ness says something profoundly revealing about the national character. This is, I think, why I have real problems with an approach to Charter interpretation that seems to (on one hand) diminish the socially-embedded nature of Canadians, their traditions, ways of living together; and (on the other) emphasize bland, (pseudo-)technocratic modes of decision-making in the name of “proportionality”. But I set this aside for now.

Arguments about the kind of people ‘we’ are frequently trade on arguments over memory. Primus is clear that ‘memory’ is not the same as ‘history’. A country’s history is messy. The events that occur in a nation’s history do not add up to a neat, simple story. Memory is different. A country’s memory of itself concerns not just ‘what happened’ but what those events mean. It is itself a matter of interpretation, “partly factual, partly mythical”. It goes to how we imagine ourselves as a community. (Primus cites Benedict Anderson on this point, but I might also gesture to the work of Charles Taylor.) This imagining is also not static. As we uncover episodes in our history, we may understand ourselves differently; subtly or dramatically alter the story we tell about ourselves. Depending on the kind of story we tell about ourselves at a given time, a certain interpretation of the constitution may be more or less plausible.

Arguments about ethos can draw upon text and precedent - and to this extent Primus’ analysis can sound something like Taking-Rights-Seriously-era Ronald Dworkin. Canonical precedents like Brown v Board of Education tell us something profound about the American national character, and American aspirations for equality. And arguments about ethos are often tied to arguments about constitutional structure - i.e., about the relationship between institutions and branches of government. Criticisms of expansive presidential authority frequently trade on the idea that there are “no kings” in America, whereas proponents might emphasize the American distrust of elites and oligarchs. Criticisms of expansive judicial review often draw upon the idea that ‘we’ are a people who value democracy; proponents emphasize ‘our’ commitment to individual liberty, ‘our’ fear of being tyrannized by the majority, and so on. The stories we tell about ourselves influence, and are influenced by, our reading of constitutional text, our understanding of what doctrines and precedents are canonical, and how we make sense of the constitution’s structure (architecture?).

There is, in Primus’ treatment of ethos, a troubling tension that he recognizes. Because constitutional memory is, to an important extent, a matter of ‘mythology’, constitutional scholarship is often a matter of myth-making. In choosing which parts of a nation’s history to foreground or marginalize, one is making choices about what kind of (to a point false) story to tell (sell?), by way of urging one sort of interpretation over another. Primus does not want to characterize every work of constitutional scholarship - particularly those that engage in historical analysis - as a kind of ‘scholactivism’. What is important, he argues, is that scholars be transparent about what they’re doing - about the choices they’re making - and not under-handedly sell an over-simplified picture of the nation’s history as the unadulterated truth. This is fair enough to a point, though it is discomfiting.

Does all this sound terribly relativistic? Perhaps. As I said at the outset, Primus does not purport to offer a thick normative justification for this way of thinking about constitutional interpretation. It is a description of how (American) lawyers and judges do play the game of constitutional law. To that extent, it naturally has a relativistic sound to it. Certainly, it has a very modern ring to it, for better or for worse. I doubt very much that lawyers and judges in the early 19th century would have described what they were doing in the terms laid out by Primus - as a game in which justifications happen to resonate or not with one’s peers. But there is something undeniably attractive in the idea that, at bottom, the practice of constitutional law boils down to some sort of accountability, and in the modern world it is not clear what that bedrock could be if not mutual accountability between participants engaged in common rational debate. And the description Primus gives of how constitutional debate is actually done rings true.

A thicker normative account would need to explain why and how those participants ought to accept only certain justifications for reaching one interpretation rather than another. I suspect that such an account must look very Dworkinian indeed. In particular, it must be informed by a deep theory of political morality.

For my purposes, I would just observe that all of this has profound implications for debates about constitutional interpretive methodology in Canada. I have expressed doubt (here and here) that the choice to adopt one methodology rather than another could have been determined by ‘law’ in any normatively autonomous sense. To know what legal factors should guide the choice of methodology, I have suggested, one would already have had to decide how to think about the constitution, what it is supposed to do, and how it is supposed to affect or disrupt existing customs and structural/institutional relationships. That being the case, the decision to adopt one methodology rather than another can only be driven by extra-legal factors - again, understanding ‘legal’ in a very narrow sense - like morality and political philosophy and culture.

What Primus suggests is that in a sense this is right. Whether a given approach to constitutional interpretation succeeds will depend, as a matter of fact, on whether it resonates for a critical mass of the other actors in the constitutional system. That will depend in large part on whether those other actors accept the implicit or express account of how the constitution figures into the broader ‘story’ of who we are as Canadians. Does it represent a definitive break in how we structure political and legal authority in Canada - say, shifting power away from legislatures to courts - or something less profound? Does it represent a definitive break in how individuals should understand their relationship to their community and political institutions, or (again) something less stark? Does it reflect a commitment to certain traditional values, or a commitment to ‘progress’ as a value in its own right?

How one understands the Charter, and its place in our national story, will depend on what we think that story is - which will in turn affect how we think about the significance of text and precedent. And how we think about our national story will itself be affected by our ongoing experience of life under the Charter; by the proliferation of theories now in circulation about what a fair and just society looks like, and what a constitution is supposed to do to bring that about; by our changing relationship to our history and institutions and each other; by our changing perspectives on what was good and valuable about life before the Charter; and by our hopes and misgivings about the future.

I expect to return to this paper and its implications for how we should think about constitutional methodology in Canada. For now, this seems like a good place to stop. Thoughts and comments welcome.

1. I want to acknowledge that this horizontal way of thinking about accountability in constitutional interpretation - in the sense that lawyers and judges are mutually accountable to each other - is arguably in tension with the way that they often try to defend their interpretations by appealing simply (vertically) to “the law”. As Steven Smith observes in Law’s Quandary, such invocations seemingly hint at some top-down authority to which lawyers and judges are all accountable to; a divine, or quasi-divine authority that underwrites law’s authority, and that makes it obligatory for them to accept or deny the justificatory force of some reasons. Whether it is possible, in morality, politics or law to completely do away with that kind of underwriting (vertical) authority is very much the question that thinkers like Anscombe, MacIntyre, and Stephen Darwall - among many others - have grappled with, reaching very different conclusions.

2. Justice Scalia, though often held up as ‘originalist par excellence’, was in fact quite flexible. See, on this point, a recent discussion by Adrian Vermeule in The New Digest.