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November 28, 2006

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Dennis Murashko

In this exchange, Professor Bennett deploys the summing problem to argue against the use of originalism in constitutional interpretation (it appears that he criticizes both the original intent and original meaning strands, although most of the debate between the authors centers on the difference between the two strands). I wonder how good this argument really is. More concretely, it does not seem to me all that persuasive. Here is why:

The summing problem suggests that we have no way of ascertaining any collective intent (or meaning) that the framers (or ratifiers) have assigned to the Constitution. To be sure, at the heart of the debate are vague constitutional provisions. In other words, the summing problem does not present itself when we are searching for the meaning of the requirement that the President be at least 35 years old. No one understood “35” to mean “34 or less”; we can readily stipulate to this. But the summing problem does materialize when we ask what people in 1789 understood elector discretion to mean (to continue the example that has motivated the authors' debate). Did “discretion” mean that the ballots could list electors’ precommitments to one candidate or another? The answer does not seem to be obvious. (Professor Bennett does suggest that the answer is “no” because discretion was motivated by deliberation, but it is not clear why precommitment and deliberation are incompatible. An elector can be precommitted to Hilary, but remain open to persuasion to cast the vote for Condi. Thus, it seems plausible that the meaning of elector discretion in 1789 contemplated some ex ante signaling of commitment to a candidate.)

Professor Solum argues (persuasively, to my mind) that we need not sum anything to glean the 1789 public meaning of a constitutional provision. But even assuming, if only for purposes of the argument, that Professor Bennett is right--that we do not know what the public meaning would have been had we asked the 1789 crowd whether specifying presidential electors' precommitments on the ballot were permissible--what does that prove for nonoriginalists? Have they an alternative theory of interpretation that avoids the summing problem?

I suggest they do not. Recall that Professor Bennett's concern is with elector discretion. The question for the nonoriginalist judge might be this: does the Constitution, under today's realities (whatever they are), permit electors to defect and cast their votes for someone other than the presidential candidate to whom they have precommitted? How is the nonoriginalist judge to go about answering this question? Unless the answer is something other than the judge's personal preference, the judge will have to look to some understanding of what the Constitution means, then or now. And the summing problem will present itself with respect to whatever criteria the judge is going to use.

Consider as a different example, the phrase Justice Scalia abhors: "the evolving standards of decency that mark the progress of a maturing society" (I think the language is from Trop v. Dulles). If we are to interpret the 8th Amendment, for example, by using the evolving standards of decency test, don't we have the summing problem? How are we to know that the standards have evolved? Do we use the survey of modern philosophers? A Gallup poll? Do judges ask their colleagues overseas? And if so, which countries ought they consider?

The summing problem does not seem to me a particularly good way of arguing against the originalist approach to constitutional interpretation because the problem fails to provide a satisfactory alternative. And one should not argue against a theory by failing to specify an alternative. This point is not novel, of course; Justice Scalia, for one, has made it far more eloquently in a law review article (57 U. Cin. L. Rev. 849). In that article, Justice Scalia argued that originalism, while not perfect, is the lesser evil. He explained that nonoriginalists agree on nothing other than the originalist approach is wrong.

The summing problem does not elevate one approach above another. It merely suggests a common difficulty that a judge has to overcome if she is to interpret the Constitution according to anything but her own policy preferences. What originalism does provide is the temporal frame of reference within which the interpreting judge will operate. Put it differently, originalism constrains judges and constrains the parameters of the summing problem. When originalism is discarded, judges can look anywhere for answers, which should only mean that the summing problem is aggravated rather than addressed.

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