FESC: Choosing between approaches to 1A interpretation

Andrew Tutt   Choosing Between
Approaches to First Amendment Interpretation 
Discussant: Vince Blasi
Fundamental questions of the options in interpretive
methodology and criteria for choosing among them.  Main takeaway: values, assessing and
implementing them, have no place in interpretation of the 1A.  Many contributions to 1A literature argue in
exactly those terms: my sense of the 1A’s values is better.  That’s the wrong path, because of deeper
notions of what constitute interpretation. 
Values tend to be injected in 1A theory in different forms: (1) making
claims about the structure of the constitution that support one or another
contentions; (2) asserting that the constitution makes certain moral
commitments which bear on interpretation; (3) making arguments from precedent;
(4) making arguments about intended or widespread public meaning of the clause
at the time of enactment, substituting for semantic meaning of text. These are
all ways to smuggle values in and all problematic. 
Ultimately it comes down to the authority of the gov’t to
make someone obey law: why is it legitimate to make a dissenter do so?  Two competing conceptions of legitimacy: (1)
pedigree—a particular claim to obedience can be based on the history of the
constitutional provision, especially the fact of ratification. (2) Merits—legitimacy
derives from the claim that this constitution is good.  Explores relationship b/t those competing
sources—he concludes that the proper source is (1) not (2)—and theories of
const’l interpretation, originalism, living constitutionalism, and
pragmatism.  It gets complicated in that
various theories can plausibly be defended as based on either (1) or (2).  Then bring them into conversation w/1A
Q: what is the constitution? 
It’s legitimacy that makes the constitution law and entitles the
application of the coercive power of the state to citizens who wish to
resist.  You could imagine other answers,
such as: does it serve the objectives that led the community to opt for (a) the
whole project of const’l limitations, (b) a written constitution, (c) a written
constitution with limited powers, or (d) a written constitution with certain
Look at practice/pragmatism: what judges invested with this
power do in terms of what authorizes their authority.  His claim is that even if you buy into the
pragmatist premises, if you look at American judges, they don’t really feel
bound by what other judges do; they go deeper and are actually guided by their
judgments about legitimacy.  Can’t
shortcircuit his claims by pragmatic moves.
Pedigree as source of legitimacy.  There are fundamental challenges to the
controlling claim of pedigree; you’re asking for obedience from people here,
now, invoking a ratification phenomenon more than 200 years old: dead (white)
hand. That’s answered sufficiently by the ongoing potential for amendment
(Amar) or constitutional moments that allow ratification by more than formal
approval of a text (Ackerman). Or Balkin’s potential for redemption/correction
w/in the system itself.
Say more about the idea of a “rule of recognition” grounded
in sociological acceptance—we wouldn’t accept a violation of the 35 year old
minimum for President even if people overwhelmingly wanted to ignore that.  Pedigree theory requires the interpreter to
decide what it was that was written & enacted. It’s not the writtenness,
but the fact of ratification, that matters. So we need to know what they
ratified. Admirably open in canvassing what they might have done: a vision that
the Framers had; faint-hearted originalism; original expected applications.
Blasi detects that in his choice of historical account of
the fact of ratification, he’s influenced by his own values in terms of
confining judicial discretion as much as possible/worrying about runaway
interpretation. Tries to link that w/legitimacy, but while most parts of the
paper spell out the alternatives, when addressing “what was ratified” the paper
is a little conclusory and seems value-driven, inconsistent w/effort to expunge
values.  Does note that many originalists
today really push judicial restraint, though no one ratified restraint.  Madison’s Virginia Report, 8 years after
ratification, offers a great argument about why seditious libel violates the
1A, but he was only the drafter and not the ratifier of the 1A; that vision was
only spelled out 8 years later, and who knows what he thought in 1791.  That’s what leads to the paper’s conclusion:
modern 1A law is problematic in terms of the key concept.
Pretty good argument for saying that the ratifiers ratified
certain structures, priorities, relationships. 
Even the semantic meaning that he privileges doesn’t simply address
specific words or phrases; there are larger linguistic units of reference in
the text itself. Madison’s constitutional theory: worried a lot about
legitimacy, but his view of interpretation was: text-bound attention to
structures and functions.  Actual meaning:
the paper decides the right is the right of freely examining public measures
& characters, not from the text but implicit in the structure. Assumption:
gov’t powers are limited, but sometimes there will be violations of those
limits—how will we remedy those violations? By calling public att’n to them.  That’s the preservative right in the
constitution.  Is that values, functions,
structures, what?  It’s not either values
or narrow word-bound clause-bound “here’s what they ratified.” Madison at least
thought that they ratified something rather different, though he did care very
much about what they ratified.  There’s a
kind of middle possibility worth considering.
And then I had to leave to make my train, but that was quite
a conference!

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