Philosophy Compass 6/6 (2011): 408–420, 10.1111/j.1747-9991.2011.00406.

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Constitutional Interpretation: Non-originalism

Mitchell N. Berman*
The University of Texas at Austin

Abstract
Debates over the proper theory of, or approach to, constitutional interpretation rage through
many Western constitutional democracies. Although the number of distinct theories, if finely indi-
viduated, might match the number of theorists who have entered the fray, it has become custom-
ary to group the competing accounts into two broad camps, commonly labeled ‘originalism’ and
‘non-originalism’. This article presents an overview of non-originalist approaches to constitutional
interpretation. However, because non-originalism is defined as the negation of originalism – that
is, diverse theories are grouped together as ‘non-originalist,’ not so much by what they commonly
affirm, as by what they commonly deny – the project naturally focuses as well on originalist theo-
ries of interpretation. After specifying what originalism maintains, and what objections it encoun-
ters, the essay sketches some of the more prominent non-originalist approaches to constitutional
interpretation and identifies some of the criticisms they face and worries they provoke. Preliminar-
ily, it explains why ‘theories of constitutional interpretation’ constitute only a subset of ‘theories
of judicial review.’

1. Introduction: Theories of Constitutional Interpretation

‘Judges are like umpires,’ John Roberts announced during hearings for his confirmation
as Chief Justice of the U.S. Supreme Court. ‘Umpires don’t make rules, they apply
them’. Although this nugget of judicial philosophy played well on Main Street, most
sophisticated observers pegged it for cant. As Judge Richard Posner objected
Neither [Roberts] nor any other knowledgeable person actually believed or believes that the
rules that judges in our system apply, particularly appellate judges and most particularly the Jus-
tices of the U.S. Supreme Court, are given to them the way the rules of baseball are given to
umpires. (Posner 2008: 78)
This is especially true of the rules of constitutional law given how relatively spare and
vague are many constitutional provisions. The dichotomy between judicial rule-making
and judicial rule-applying that Roberts insinuates thus rings false for making invisible pre-
cisely what disputes about proper judicial role are chiefly about: constitutional interpreta-
tion.
Debates over proper constitutional interpretation have travelled under different head-
ings: strict vs. loose construction; judicial restraint vs. judicial activism; interpretivism vs.
non-interpretivism. For two decades or longer, the dominant classificatory framework has
pitted originalists against opponents – captioned, often interchangeably, ‘non-originalists’
or ‘living constitutionalists’. This article examines that debate, focusing particularly on
non-originalist theories of constitutional interpretation. At the outset, it aims to clarify
what is meant by ‘a theory of constitutional interpretation’ – i.e., what sort of thing we
propose to taxonomize into the broad categories ‘originalism’ and ‘non-originalism’.

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 Non-originalism 409

Though a theory of the practice of constitutional interpretation could be positive, nor-

mative, or conceptual,1 and though the activity is not an exclusively judicial prerogative,
most theories are non-descriptive and judiciary-centered. The bulk of theories of consti-
tutional interpretation aim to answer some close variant of the question: How should
judges (of a particular jurisdiction or generally) undertake constitutional interpretation?2
This question is sometimes equated with another: How should judges exercise judicial
review? Yet theories of judicial constitutional interpretation are not identical to theories
of judicial review, or of constitutional adjudication (terms that I treat synonymously).
What I call theories of judicial constitutional interpretation (and I will generally drop
‘judicial’ for ease of exposition) are naturally understood as accounts of how judges
should discern or derive from a constitution its legal meaning, effect, or significance –
how they should determine, as Chief Justice John Marshall famously put it, ‘what the law
is’. (Marbury) It follows that, although constitutional theorists frequently describe the
competing theories that they debate as ‘normative’, it might be more perspicuous to treat
such theories as accounts – possibly conceptual or metaphysical – of the constituents or
determinants of constitutional law. A given non-positive theory of judicial review (i.e., a
theory that does not purport just to describe existing practices) might be just that, but it
needn’t be, and many aren’t. More particularly, we should recognize three respects in
which theories of judicial review often differ from theories of constitutional interpretation
– even from theories of judicial constitutional interpretation.
First, many theories of judicial review are less concerned with advising how judges
should exercise their responsibilities when assessing the constitutionality of governmental
actions than with justifying judges assuming such a role at all – especially when judicial
determinations of unconstitutionality are final or supreme in some sense. To be sure, dif-
fering justifications offered for the practice might have varying implications for how
judges should exercise their responsibilities. But not every theory of judicial review fore-
grounds those implications.
Second, several well-known theories of judicial review are principally accounts, not of
how judges should interpret the constitution to announce what the law is, but about
when they should engage in that activity and when they shouldn’t. This is most apparent
of Alexander Bickel, whose celebrated theory of judicial review is chiefly an account of
why and how the judiciary should exploit the rules of justiciability to avoid having to
interpret the constitution, thereby ameliorating the so-called countermajoritarian difficulty
(Bickel). Less obviously, the representation-reinforcement theory of Bickel’s student, John
Hart Ely, might be partially read in the same vein. That account urges courts to exercise
their power of judicial review sparingly, except when necessary to promote the workings
of republican government or to protect interests of insular minorities with whom domi-
nant groups would not cooperate in the legislative arena (Ely). But it is not altogether
clear whether, when Ely’s theory advises courts to refrain from invalidating a challenged
statute because doing so would not promote representation-reinforcement ends, such
counsel amounts to a conclusion (a) that the legislation is consistent with constitutional
demands or (b) that the judiciary, for institution-specific reasons, should stop short of
determining precisely what the constitution does command.3 Indeed, although commen-
tators frequently characterize Ely’s account as a theory of constitutional interpretation, the
subtitle – ‘A Theory of Judicial Review’ – suggests that the latter answer might be more
accurate.
A third way theories of judicial review often concern matters other than constitutional
interpretation emerges when one reflects on, say, the tiers of scrutiny in American Equal
Protection doctrine, or the multipart tests that collectively constitute free speech doctrine.

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Tests of constitutional law such as these (and the examples could be easily multiplied)
strike most jurists not as interpretations of what the constitution means – what is its legal
force or content – but rather as judicially crafted doctrines designed to ‘implement’ or
administer that legal meaning (Fallon 2001). Accordingly, much recent normative consti-
tutional theorizing – dating to Henry Monaghan’s exploration of ‘constitutional common
law’ (Monaghan) and Larry Sager’s focus on ‘underenforced constitutional norms’ (Sager
1978) – conceives of constitutional adjudication as consisting of at least two conceptually
distinct processes yielding two conceptually distinct outputs: constitutional meaning or
law, and constitutional doctrines crafted to implement the law (Berman 2006).4
We will see that some theorists – the ‘pragmatists’ – reject in toto this distinction
between processes or outputs. And even those who accept it in broad strokes – the ‘tax-
onomists’ – often cash it out in distinctive vocabularies reflecting variation in underlying
conceptual frameworks. For instance, ‘new originalists’ differentiate ‘interpretation’ and
‘construction’ (Barnett 2004; Whittington 2004; Solum 2009), while others distinguish
‘constitutional operative propositions’ (the outcome of interpretation) from ‘constitutional
decision rules’ that direct courts how to determine whether operative propositions are
satisfied (Berman 2004; Roosevelt; Berman 2010). Moreover, the taxonomists need not
contend, and often deny, that the distinctions they would draw are sharp in principle, let
alone that they can be applied noncontroversially to reverse-engineer prior judicial deci-
sions and doctrines into component parts. The critical point remains that some theorizing
about judicial review – including some that embraces the label of ‘constitutional interpre-
tation’ – is less concerned with how judges should discern a constitution’s legal meaning
or significance than with the considerations upon which they should rely when crafting
the legal doctrines that implement the norms or propositions that – according to our
working hypothesis – it is the task of constitutional interpretation to identify.
One reason to emphasize the respects in which theories of judicial review address mat-
ters outside the scope of constitutional interpretation, as that activity is increasingly coming
to be defined in the theoretical literature,5 is simply to declare this article’s scope. Because
it addresses theories of constitutional interpretation, it ignores many important theories (or
aspects of theories) of judicial review that concern subjects other than how courts should
ascertain constitutional law. Put otherwise, even if originalist and non-originalist accounts
exhaust the range of theories of judicial constitutional interpretation (as they seemingly do
by definition), they do not exhaust the range of theories of judicial review.
Furthermore, once sensitized to the discrete types of question that a comprehensive the-
ory of judicial review might address, we can better identify where, if at all, superficially
conflicting theories in fact disagree, and where they might just talk past each other. For
example, though Justice Scalia’s fondness for rule-like legal doctrine (Scalia 1989) and Cass
Sunstein’s general preference for narrow and shallow judicial decisions (Sunstein 1999) set
them clearly at odds, it is not certain to what extent they must be disagreeing about consti-
tutional interpretation rather than jousting over the form of doctrine judges should craft
when implementing their constitutional interpretations. Or, an account advertised as a non-
originalist theory of interpretation might appear, on second look, really to address a stage in
constitutional implementation lying downstream from constitutional interpretation (as here
defined), and might therefore be wholly compatible with an originalist interpretive theory.

2. Originalism – and Non-originalism

Originalism is (at least in the United States) today’s dominant explicit theory or account
of how the judiciary should interpret the constitution. Although more theorists reject

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than embrace it, it serves as a focal point for contemporary debates over constitutional
interpretation. Yet just what originalism maintains is notoriously unclear, raising a worry
that self-professed originalists champion a version of originalism that their critics do not
reject, while critics challenge a version that proponents don’t maintain. Therefore, the
path toward non-originalism starts by specifying more clearly what constitutes originalism.
This is an empirical inquiry (at least in the first instance), not conceptual or normative.
The task is simply to capture what most theorists who self-identify as originalist advo-
cate.6

2.1. THE CORE CLAIM OF ORIGINALISM

Contemporary originalists disagree about many things: which feature of the constitution’s
original character demands fidelity (framers’ intent, ratifiers’ understanding, public mean-
ing, etc.); why such fidelity is required; whether this interpretive obligation binds only
judges, or citizens, legislators, and executive officials too; what makes originalism true;
and so on. But along one dimension – the dimension of strength – originalists are mostly
united. To a first approximation, they believe that judges must give some aspect of a pro-
vision’s original character priority over all other considerations (possibly excepting judicial
precedent that departs from the original meaning). This is the central thesis that self-
professed originalists maintain and that non-originalists deny. As Jeffrey Goldsworthy
wrote in a recent article on originalism published in this journal, originalists ‘insist that,
unless it has been formally amended, the constitution continues to mean today what it
meant when it was first enacted or adopted’ (Goldsworthy 683). Crucially, the relevant
‘meaning’ is not merely what some theorists describe as ‘semantic’ or ‘linguistic’. If origi-
nalism is, as its proponents proclaim, a theory of constitutional interpretation, and if con-
stitutional interpretation is the activity of discerning the law, then originalism must
concern itself with legal meaning. Originalism maintains that a constitution’s legal meaning
– its contribution to the law – does not change absent formal amendment.
This is the single most important fact to understand about the originalism debate today.
Non-originalists do not deny that the original public meaning of a constitutional provi-
sion, or the meaning that framers or ratifiers intended to entrench, or even the purposes
they aimed to advance, bear on proper judicial constitutional interpretation. They respect
all these things. But they credit other considerations too, such as historical practices of
the nonjudicial branches, longstanding cultural understandings, widespread contemporary
values, even the interpreter’s own judgments about justice and workability. Of course,
non-originalists do not all agree on just how each of these other considerations should be
taken into account (or even which other considerations should be accounted for at all).
What distinguishes originalists from non-originalists is that the former affirm, and the lat-
ter deny, that the judiciary is obligated to interpret a constitution in accord with some
aspect of its original character, and that the content of constitutional law is wholly
determined (with a possible exception for judicial precedent) by that original feature.
Originalists maintain, whereas non-originalists deny, that courts owe ‘fidelity’ – strict
adherence – to some particular aspect of a constitution’s original character.

2.2. VARIATIONS

Theories of constitutional interpretation that meet the proffered definition of originalism

are not monolithic. Here are three (non-exhaustive) respects in which they vary.

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Most familiarly, originalists differ regarding which aspect of the constitution’s original
character demands present-day fidelity: the meaning intended by the framers or ratifiers
of a provision, the ‘public meaning’ that an ordinary, reasonable person at the time of rat-
ification would have understood the provision to bear, or possibly something else.
Second, as already intimated, self-described originalists disagree over whether judges
ever act properly when rejecting the original meaning in favor of intervening judicial
precedent. Some believe that originalism has the internal resources to accommodate judi-
cial respect for non-originalist judicial precedents, others believe that it does not, and a
third group concede that it doesn’t, but nonetheless endorse stare decisis as what Justice
Scalia termed a ‘pragmatic exception’ (Scalia 1997: 140).
Third, originalists do not uniformly insist that constitutional interpretation is all there is
to constitutional adjudication. As Section 1 emphasized, several ‘new originalists’ describe
‘interpretation’ as the process of deriving the constitution’s meaning,7 and ‘construction’
as the activity of translating that meaning into more administrable legal rules, as by reduc-
ing vagueness. While it is not entirely clear what originalists mean when insisting that
legitimate construction must remain ‘within the bounds established by original meaning’
(Barnett 2004: 121),8 originalism is likely better able to meet some common objections
when supplemented by non-originalist construction.
In the remainder of this article, ‘originalism’ and ‘originalist’ refer to theories of consti-
tutional interpretation that are ‘strong’ in the manner already emphasized – that is, they
maintain that judicial interpreters owe ‘fidelity’ to some form of the constitution’s original
meaning and not merely that judges should treat the constitution’s original meaning as
especially weighty or significant – while encompassing a range of variants on the dimen-
sions just mentioned, among others.

3. Non-originalist Criticisms of Originalism

Over the years, scholars have criticized originalism on such diverse grounds as that the
target of the originalist search is undiscoverable or non-existent; that originalism is
self-refuting because the framers intended that the constitution not be interpreted in an
originalist vein; and that originalism yields results that are inconsistent with judicial deci-
sions in which we are highly confident (for summaries, see Farber 1989; Kay).
More recent criticisms take a slightly different tack. Originalism is not the actual judi-
cial practice anywhere. Some jurisdictions – Canada, most notably – have officially
embraced non-originalist interpretive approaches. Even in the United States, where
judicial nominees often swear fealty to originalism, the judiciary does not practice an
originalist jurisprudence. To be sure, many opinions exhibit a strong originalist flavor.
But to decide a case on originalist grounds is very far from embracing originalism, and
the U.S. Supreme Court has never done so. Indeed, it appears there has never been a sin-
gle consistently originalist Justice (Howard and Segal 2002; Marshall 2002).
Although this fact does not alone establish what the correct interpretive posture is, it may
be relevant. On a basically Hartian account of law, the descriptive inadequacy of originalism
suggests that, if originalism is the correct interpretive theory, it is not the legally correct the-
ory – the correct theory as a matter of law – because it is not supported by the requisite
convergent practice of officials (e.g., Fallon 2009). So if originalism is true, it must be for
other reasons – possibly moral or conceptual. Either way, because originalism conflicts with
longstanding adjudicatory practices that strike many participants in the relevant consti-
tutional cultures as legally sound, many commentators conclude that the argumentative
burden falls on originalists to explain why current practice is illegitimate or confused.

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Many originalists deduce or infer the truth of originalism from a more general theory
of interpretation – intentionalism (e.g., Alexander and Prakash; Fish). Others argue that
originalism follows from popular sovereignty or the nature of authority (Whittington
1999), or is entailed by the fact of a written constitution (Barnett 1999). Still others
maintain that originalism is the only interpretive posture that adequately satisfies rule of
law virtues like stability and predictability or that can adequately cabin judicial subjectivity
(Scalia 1989) or that it can be counted on to produce substantively good decisions
(McGinnis and Rappaport). Many of these discrete claims have been criticized by other
originalists who would reach similar conclusions on different grounds. Meanwhile, non-
originalist critics have argued at length that none of the arguments upon which original-
ists frequently rely can do the work demanded of it: intentionalism is false as a general
theory of interpretation; non-originalism is consistent with any plausible conception of
democracy and popular sovereignty; that a constitution is written does not entail any sin-
gle interpretive approach; and so on (e.g., Berman 2009b; Griffin 2008; Coan).

4. Varieties of Non-originalism, and Some Worries they Provoke

There exists no canonical catalog of theories of constitutional interpretation beyond the
originalism ⁄ non-originalism dichotomy. Thus, there exists no generally accepted subdivi-
sion of non-originalist theories. I propose to recognize four families of non-originalist
theories: pluralism, perfectionism, pragmatism, and common law constitutionalism. Read-
ers familiar with the literature will note that several oft-mentioned theories do not make
this list. Some (e.g., Ely’s representation-reinforcement theory and Sunstein’s minimalism)
are theories of judicial review that may only peripherally implicate theories of constitu-
tional interpretation (see Section 1). Others (e.g., structuralism and textualism) are rarely
if ever advanced as unitary theories of constitutional interpretation, but rather represent
misleading nominalizations of argument types recognized by most pluralists.

4.1. PLURALISM

In two influential books (Bobbitt 1982, 1991), Philip Bobbitt argued that constitutional
law is properly the product of the application of six practice-legitimated modalities of
constitutional argument: historical (relying on intentions or expectations of framers or rat-
ifiers); textual (relying on the ordinary, contemporary public meaning of the Constitu-
tion’s words); structural (inferring rules from the relationships among fundamental
structures the Constitution sets up or presupposes); doctrinal (applying rules established
by judicial precedent); ethical (inferring rules from traditional American moral commit-
ments); and prudential (comparing the forward-looking costs and benefits of candidate
rules). Scholars building on this work have added other argumentative modalities. For
example, because Bobbitt’s ‘historical’ argument focuses exclusively on the ratification of
constitutional provisions, some would rename it ‘originalist’, and recognize a distinct ‘his-
torical’ modality that draws lessons from post-ratification political practices.
However one individuates the forms of argument, this general ‘pluralist’ approach
(Griffin 1994) is very likely the dominant contemporary judicial and academic theory of
constitutional interpretation. Indeed, although individual theorists emphasize one modal-
ity or another, few if any assign to their favored modalities an argumentative priority
comparable to the role original meaning (or intent) plays for originalists. To take one
prominent example, the influential champion of structuralist argument, Charles Black,
emphasized structure because it was underappreciated, not because he thought it the

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414 Non-originalism

single correct approach to divining constitutional meaning (Black 1969). It is therefore

misleading to contrast originalism with, say, ‘textualism’ or ‘structuralism’: these ‘ism’s do
not likely represent a general or complete theory of how the constitution should be inter-
preted.9 Similarly, it is doubtful that any of the several theorists who have urged that
judges should interpret the constitution to promote deliberative democracy (e.g., Sunstein
1993; Breyer 2005) would categorically elevate this particular interpretive consideration
above all others.
Despite its dominance, the pluralist form of non-originalism faces an obvious challenge:
to explain how to adjudicate among different modalities when they conflict. Richard
Fallon has argued that they conflict less often than one might suppose, and that when
they do, the implicit norms of our practice respect a particular argumentative hierarchy
(Fallon 1987). But while scholars might debate how often they pull apart, nobody thinks
they never do, and few or none have embraced Fallon’s hierarchy. Bobbitt himself
insisted that conflicts among argumentative modalities could be resolved only by what he
terms an act of conscience. Many pluralist scholars similarly eschew the vocabulary of
truth, instead viewing the choice among modalities as irreducibly one of interpretive
‘judgment’. (e.g., Farber and Sherry) Critics object, accordingly, not only that such an
approach licenses boundless judicial subjectivism, but that it is inconsistent with the com-
monsensical notion that constitutional interpretation is an effort to discover norms or
propositions of constitutional law pre-existing the interpretive act.

4.2. PERFECTIONISM

‘Perfectionist’ theories of constitutional interpretation (the label comes from Sunstein

2005; Fleming) seek interpretations that place the constitution in its morally best light,
and thus escape the second objection lodged against the pluralists. The best known of the
perfectionist theories is Ronald Dworkin’s ‘moral reading’ of the constitution (though he
does not employ the term). According to Dworkin’s general interpretive theory of law,
the law consists of the principles of political morality that best explain and justify the
positive pronouncements of the jurisdiction’s legal history. Given Dworkin’s moral objec-
tivism, it follows that for him, as for critics of Bobbittian pluralism, there exist true or
correct propositions of constitutional law that constitutional interpretation aims to dis-
cover.
Before assessing Dworkin’s account, however, a classificatory matter arises, for Dwor-
kin has claimed to be an originalist – of a sort. ‘Expectation’ originalism, he says, main-
tains that the words in a constitutional text ‘must be given the force in law that [the
ratifiers] expected it to have’. That, Dworkin argues, is untenable. A contrasting theory –
what he calls ‘semantic’ originalism – ‘insists that the words in a constitutional text must
be given the meaning that those who enacted the text intended them to have’. And that
view, Dworkin asserts, ‘is irresistible’ (Dworkin 2006: 29–30).
Dworkin’s characterization of his own theory is doubtful. The most salient originalist
alternative to expectation originalism – concededly a bad view (Greenberg and Litman),
and one few originalists advance (Berman 2007) – is not a theory about the semantic
meaning (or linguistic content) of the constitution, but of its legal meaning, content, or
significance. And it is far from self-evident that a constitution’s legal meaning – its contri-
bution to the content of the law – cannot change over time. Indeed, Dworkin’s own
theory suggests that it probably does, because the moral principles that best fit or explain
the legal data must be sensitive to changes in judicial and non-judicial actions purporting
to interpret or implement the constitution. For this reason, Dworkin’s theory of

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constitutional interpretation is most properly counted as non-originalist. Other interpre-

tive theories that follow a broadly Dworkinian line – like Sager’s justice-seeking theory
(Sager 2005), and James Fleming’s Constitution-perfecting theory (Fleming) – wear the
non-originalist label proudly.
Despite differences among these perfectionist variants, all provoke the same core objec-
tion – namely, that they conflate law and morality, or license judges to pursue justice
rather than to interpret our actual constitution, imperfections and all. While I do not
believe that this objection is well-taken, it is also true that Dworkin’s constitutional the-
ory, at least, rests upon a highly controversial general theory of law or legal content.

4.3. PRAGMATISM

To a first approximation, pragmatic approaches to constitutional interpretation maintain

that courts should interpret the constitution in a ‘forward-looking’ manner to best secure
good outcomes. Although an increasing number of constitutional theorists adopt the
‘pragmatist’ label, it remains unclear whether most self-identifying pragmatists aren’t just
pluralists who place particularly heavy stock in what Bobbitt called the prudential modal-
ity of argument. I am aware of no pluralist who deems irrelevant such ordinary inter-
pretive modalities or considerations as text or precedent. So it would seem either that the
pragmatic, forward-looking, instrumental, or policy-oriented considerations that the prag-
matic theorist emphasizes are only among the considerations that she recognizes, or that
the pragmatic considerations are defined broadly to include such goods as ‘adhering to
original meaning’ or ‘following judicial precedent’, in which case ‘pragmatism’ becomes
just another term for ‘pluralism’ and confronts the same objections.
If pragmatism is not just pluralism with a pronounced prudential sensibility, that might
be because it is less a theory of constitutional interpretation than a theory of judicial
review. This possibility emerges more clearly if we distinguish two branches of the prag-
matist family.
One branch, associated with Daryl Levinson and Rick Hills among others (Levinson;
Hills), is chiefly motivated to reject the purported distinction between activities or out-
puts of constitutional adjudication – whether characterized as ‘interpretation’ and ‘con-
struction’ or in a roughly analogous way. These pragmatists claim not that ‘pragmatic’
considerations narrowly construed are all there is to interpretation, but that the instinct to
subdivide judicial constitutional implementation into two activities or outputs, and to rel-
egate all forward-looking or prudential considerations to one of the two, is mistaken. On
their view, what ‘taxonomists’ like Monaghan, Sager, Fallon, and the ‘new originalists’,
describe as two activities is really one, and one activity that is shot through with (but not
exhausted by) prudential, cost-benefit type reasoning.
A possibly contrasting branch of the pragmatist family is represented by that best
known and most prolific of the self-described legal pragmatists, Judge Posner, who argues
that judges should (and do) reach decisions based on self-conscious evaluations of conse-
quences – but only when operating in ‘the open area’ where ‘orthodox legal materials of
decision run out’ (Posner 15, 324). Although Posner does not make transparent precisely
what the ‘orthodox legal materials’ are, and what it means for them to ‘run out’ – plural-
ists and originalists are likely to supply very different answers to these questions – he is
plausibly read as advocating something approaching the two-stage picture of constitu-
tional adjudication that fellow pragmatists like Levinson and Hills reject. On this reading,
rather than advancing a pragmatist theory of constitutional interpretation that competes
against pluralism, Posner is advancing the following compound claim: that very little of

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416 Non-originalism

what courts do in constitutional cases (not governed by settled doctrine) is interpretation;

that most of what they do in such cases is to legislate; that such legislation is appropriate,
even inescapable; and that when engaging in judicial lawmaking, judges do and should
focus (again – heavily, but not exclusively) on consequences. Regardless of whether Pos-
ner would endorse any version of an interpretation ⁄ construction distinction, his chief tar-
gets plainly are those theorists, like originalists and Dworkin, who believe that
constitutional interpretation is generally an effort to discover pre-existing law, and there-
fore generally gets things either ‘right’ or ‘wrong’, not pluralists who would entertain a
wide variety of interpretive arguments and who unambiguously privilege judgment over
logical inference.

4.4. COMMON LAW CONSTITUTIONALISM

Our final family of non-originalist theories, common law constitutionalism, maintains that
judges should undertake constitutional interpretation as common law courts building
upon an elaborate body of law developed over the years, mostly by judicial decisions
(Strauss; Waluchow). We can ask of this theory, as we did of pragmatism, whether it is a
competitor to pluralism or, instead, a strand of pluralism that places heavy – but not
exclusive or even lexical – reliance on one of the argumentative modalities – in this case,
doctrine.
There is at least one way common law constitutionalism might be fairly viewed to
represent a view distinct from pluralism. Most pluralists probably accept that the interpre-
tandum of constitutional interpretation is the constitutional text. They say that the text
should be interpreted ‘in light of’ various considerations, or that the various argumenta-
tive modalities ‘bear upon’ how the text should be interpreted. Some common law
constitutionalists espouse or intimate a broader view of what judges are interpreting when
engaged in constitutional interpretation: not just the constitutional text in light of other
considerations, but the constitutional tradition or practice itself (cf. Grey). This strand of
common law constitutionalism shares with pluralism the claim that a great many
interpretive disputes lack right answers and the concomitant commendation of judicial
‘judgment’. But its view of the object of interpretation is more radical.
Naturally, this theory provokes all the objections that lie against pluralism. But it pro-
vokes additional objections too. Some critics maintain that such a view reaches substan-
tively bad results because it departs too far from the wisdom embodied in the document
(Amar). They also object that this approach (to American constitutional law) flouts the
Supremacy Clause of the U.S. Constitution, which directs that ‘This Constitution, and
the Laws of the United States which shall be made in pursuance thereof … shall be the
supreme law of the Land’. To its sterner critics, then, common law constitutionalism is
not just bad constitutional interpretation, but not constitutional interpretation at all.

5. Conclusion and Avenues for Further Research

Most constitutional theorists maintain that judges legitimately employ a variety of moves,
arguments, or considerations – the plain language of the text, the original meanings of
individual clauses, original expectations and intentions, inferences from the constitutional
structure, longstanding practices, judicial precedents, contemporary social values, judg-
ments of justice and good policy, and so on – when engaged in the activity properly
denominated ‘constitutional interpretation’. Such theorists are non-originalists because
they deny that some static feature of the framing enjoys the very privileged status that

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originalism in all guises claims. No two theorists are apt to weight, rank, or integrate
these considerations in just the same way, and frequently emphasize one or another. But
because very few non-originalists assign to any consideration a priority comparable to
what originalists assign to original meaning or intentions, almost all are pluralists of vary-
ing shades.
The fundamental philosophical challenge confronting non-originalists is to address the
commonsensical idea that interpretation (an activity that many contemporary constitu-
tional theorists agree does not exhaust all rule-announcing or rule-formulating behavior
that constitutes judicial constitutional implementation) is an effort to discover something
– the law – that pre-exists the interpretive activity. This view of legal interpretation may
not be correct, but it is commonly assumed. Accordingly, non-originalists must ultimately
explain either how their judgment-extolling pluralism can be reconciled with this image
of interpretation and of law, or why this image is mistaken, at least partially (e.g., Berman
2009a: 270–77).
Three (non-exhaustive) possibilities stand out.
First, non-originalists might accept the standard view of legal interpretation as a form
of theoretical reasoning directed toward discovering legal content that precedes the inter-
pretive act, but claim that much (or most) of what we standardly call ‘constitutional inter-
pretation’ is not a form of legal interpretation, properly understood; instead, it is
lawmaking. Perhaps Posner embraces this view, as might many Hartians. But some non-
originalists find it inconsistent with their phenomenology, especially with regard to felt
differences between constitutional interpretation and adjacent activities like ‘constitutional
construction’.
A second approach, pressed most vigorously by a handful of American theorists starting
in the early 1990s, would locate statutory and constitutional interpretation in the realm of
practical reasoning, not theoretical reasoning (e.g., Eskridge and Frickey; Farber 1992;
Patterson). This approach appears to give up the idea that law precedes interpretation – a
sacrifice that many commentators find too dear (e.g., Kress; Alexander 1993). The same
might be said as well of Joseph Raz’s proposed distinction between conserving and inno-
vative interpretations and his suggestion that some forms of legal interpretations are prop-
erly innovative and pluralistic (Raz).
A third possibility would accept that legal interpretation belongs to theoretical reason-
ing and that constitutional interpretation is a form of legal interpretation so understood.
This is probably the dominant unreflective view of contemporary non-originalists. It is
also a difficult position for non-perfectionist non-originalists to successfully maintain inso-
far as they intend merely to assume or piggyback upon one or another well-developed
theory within general jurisprudence. To vindicate it will possibly require development
and defense of new theories of law or legal content.

Short Biography
Mitchell Berman holds the Richard Dale Endowed Chair in Law, and is Professor of
Philosophy (by courtesy), at the University of Texas at Austin, where he also serves as
Co-Director of the Law & Philosophy Program. He is the author or co-author of dozens
of articles and book chapters on diverse subjects ranging across constitutional theory,
jurisprudence, and the philosophy of criminal law. He holds degrees from Harvard Uni-
versity and the University of Michigan. Versions of this article were presented at the
Drawing Board Luncheon at the University of Texas Law School and at the Legal
Theory Workshop at the UCLA School of Law. Berman thanks participants at those

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418 Non-originalism

events for helpful reactions, and, for incisive written comments, Aaron Bruhl, Jane
Cohen, Mark Greenberg, Kevin Toh, and an anonymous referee for this journal.

Notes
* Correspondence: School of Law, The University of Texas at Austin, 727 E. Dean Keeton Street, Austin, TX
78705, USA. Email: mberman@law.utexas.edu.

1
This simple trichotomy glosses over many difficult issues. Given space constraints, I mean only to note that the
literature here discussed is not principally concerned to describe existing practices in any particular jurisdiction.
Most contributions present themselves as normative, though we will see by the conclusion that the relationship
between the normative and the conceptual is vexed.
2
Even much of the ‘popular constitutionalism’ literature can be read as largely addressed to this question notwith-
standing its apparent focus outside the courts. The argument is often that judges should do such-and-such because
that would best accommodate the people’s proper role.
3
This latter possibility assumes that constitutional norms properly denominated ‘law’ need not be coextensive with
what the judiciary will enforce. That appears to be the dominant view (e.g., Sager 1978; Brest), but some theorists,
following Dicey, would term such norms ‘constitutional conventions’ (e.g., Waluchow).
4
That not everything that judges do during constitutional adjudication is constitutional interpretation becomes
banal when we think about remedies. But remedies appear on stage after a holding that the constitution has been
violated, and one might think that everything that occurs en route to a holding that challenged action is or is not
unconstitutional is either interpretation or the finding of facts made relevant by the norms that emerge from inter-
pretation.
5
Admittedly, lawyers often use the term ‘interpretation’, in statutory and constitutional contexts, to encompass ‘all
the considerations that move judges to develop an understanding of [enacted] provisions as they apply in practice’
(Greenawalt 274). I am urging that important matters of dispute between originalists and non-originalists, and vari-
ous challenges confronting non-originalists, emerge more clearly if, consistent with a developing scholarly trend, we
adopt a narrower conception, at least presumptively.
6
I am speaking of self-identifying ‘originalists’ who contribute to theoretical debates over proper interpretive
methods or approaches, not those who engage solely in the sort of historical investigations that originalism recom-
mends.
7
I understand originalists to treat ‘semantic meaning’ and ‘legal meaning’ as equivalent: to a first approximation, a
constitution’s legal meaning or significance just is its semantic meaning, which is necessarily fixed. Berman 2010
and Greenberg 2011 question the reduction of legal meaning to semantic meaning.
8
The paradigmatic construction, for new originalists, translates a standard-like original meaning into more rule-like
doctrinal form. But it is generally accepted that rules are over- and under-inclusive relative to the standard that they
serve to enforce. It is therefore unclear what determines whether a construction stays within bounds established by
original meaning.
9
Some self-described textualists might maintain that a constitution should be interpreted solely in accordance with
the ‘plain meaning’ of the text. But the ‘plain meaning’ they believe constitutes the constitution’s legal meaning or
effect is not the plain meaning at the time of interpretation but the plain meaning at the time of enactment, else
the law would necessarily change in accord with fortuitous changes in word meanings. So insofar as there exist true
unitary textualists about constitutional interpretation – i.e., textualists who aren’t pluralists – they aren’t non-origi-
nalists. They are originalists who credit something like the ‘original public meaning’ of the text as opposed to some-
thing like the communicative intentions of the text’s authors.

Works Cited
Alexander, Larry. ‘Practical Reason and Statutory Interpretation.’ Law and Philosophy 12 (1993): 319–28.
—— and Saikrishna Prakash. ‘ ‘‘Is That English You’re Speaking?’’ Why Intention-Free Interpretation is an Impos-
sibility.’ San Diego Law Review 41 (2004): 967–99.
Amar, Akhil Reed. ‘The Supreme Court 1999, Term—Foreword: The Document and the Doctrine.’ Harvard Law
Review 114 (2000): 26–134.
Barnett, Randy E. ‘An Originalism for Nonoriginalists.’ Loyola Law Review 45 (1999): 611–54.
——. Restoring the Lost Constitution: The Presumption of Liberty. Princeton: Princeton UP, 2004.
Berman, Mitchell N. ‘Aspirational Rights and the Two-Output Thesis.’ Harvard Law Review Forum 119 (2006):
220–9.
——. ‘Constitutional Constructions and Constitutional Decision Rules: Thoughts on the Carving of Implementa-
tion Space.’ Constitutional Commentary 16 (2010): 39–69.

ª 2011 The Author Philosophy Compass 6/6 (2011): 408–420, 10.1111/j.1747-9991.2011.00406.x

Philosophy Compass ª 2011 Blackwell Publishing Ltd
 Non-originalism 419

——. ‘Constitutional Decision Rules.’ Virginia Law Review 90 (2004): 1–168.

——. ‘Constitutional Theory and the Rule of Recognition: Toward a Fourth Theory of Law.’ The Rule of Recogni-
tion and the U.S. Constitution. Eds. Matthew D. Adler and Kenneth Einar Himma. New York: Oxford UP,
2009a. 269–94.
——. ‘Originalism and its Discontents (Plus a Thought or Two About Abortion).’ Constitutional Commentary 24
(2007): 383–404.
——. ‘Originalism is Bunk.’ NYU Law Review 84 (2009b): 1–96.
Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. New York: Bobbs-Merrill,
1962.
Black Charles L. Jr. Structure and Relationship in Constitutional Law. Baton Rouge: Louisiana State UP, 1969.
Bobbitt, Philip. Constitutional Fate: Theory of the Constitution. New York: Oxford UP, 1982.
——. Constitutional Interpretation. Cambridge, MA: Blackwell, 1991.
Brest, Paul. ‘The Conscientious Legislator’s Guide to Constitutional Interpretation.’ Stanford Law Review 27 (1975):
585–601.
Breyer, Stephen. Active Liberty: Interpreting Our Democratic Constitution. New York: Knopf, 2005.
Coan, Andrew B. ‘The Irrelevance of Writtenness in Constitutional Interpretation.’ University of Pennsylvania Law
Review 158 (2010): 1025–91.
Dworkin, Ronald. ‘Comment.’ A Matter of Interpretation: Federal Courts and the Law. Ed. Amy Gutmann. Princeton:
Princeton UP, 1997: 115–27.
——. Justice in Robes. Cambridge, MA: Belknap, 2006.
——. Law’s Empire. Cambridge, MA: Belknap, 1986.
Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA: Harvard UP, 1980.
Eskridge, William N. Jr. and Philip P. Frickey. ‘Statutory Interpretation as Practical Reasoning.’ Stanford Law Review
42 (1990): 321–84.
Fallon, Richard H. Jr. Constitutional Implementation. Cambridge, MA: Harvard UP, 2001.
——. ‘A Constructivist Coherence Theory of Constitutional Interpretation.’ Harvard Law Review 100 (1987): 1189–
286.
——. ‘Precedent-Based Constitutional Adjudication, Acceptance, and the Rule of Recognition.’ The Rule of Recog-
nition and the U.S. Constitution. Eds. Matthew D. Adler and Kenneth Einar Himma. New York: Oxford UP,
2009: 47–67.
Farber, Daniel A. ‘The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law.’ Vanderbilt Law
Review 45 (1992): 533–59.
——. ‘The Originalism Debate: A Guide for the Perplexed.’ Ohio State Law Journal 49 (1989): 1085–106.
—— and Suzanna Sherry. Judgment Calls: Principle and Politics in Constitutional Law. New York: Oxford UP, 2009.
Fish, Stanley. ‘There is No Textualist Position.’ San Diego Law Review 42 (2005): 629–50.
Fleming, James E. Securing Constitutional Democracy. Chicago, IL: U. Chicago Press, 2006.
Goldsworthy, Jeffrey. ‘Constitutional Interpretation: Originalism.’ Philosophy Compass 4.4 (2009): 682–702.
Greenawalt, Kent. ‘Constitutional and Statutory Interpretation.’ The Oxford Handbook of Jurisprudence and Philosophy
of Law. Eds. Jules Coleman and Scott Shapiro. New York: Oxford UP, 2002: 268–310.
Greenberg, Mark. ‘Legislation as Communication? Legal Interpretation and the Study of Linguistic Communica-
tion.’ The Philosophical Foundations of Language in the Law. Eds. Andrei Marmor and Scott Soames. New York:
Oxford UP: 2011. 217–56.
Greenberg, Mark D. and Harry Litman. ‘The Meaning of Original Meaning.’ Georgetown Law Journal 86 (1998):
569–619.
Grey, Thomas C. ‘Do We Have an Unwritten Constitution?’ Stanford Law Review 27 (1975): 703–18.
Griffin, Stephen M. ‘Pluralism in Constitutional Interpretation.’ Texas Law Review 72 (1994): 1753–70.
——. ‘Rebooting Originalism.’ University of Illinois Law Review (2008): 1185–223.
Hills, Roderick M. Jr. ‘The Pragmatist’s View of Constitutional Implementation and Constitutional Meaning.’ Har-
vard Law Review Forum 119 (2006): 173–82.
Howard, Robert M. and Jeffrey A. Segal. ‘An Original Look at Originalism.’ Law and Society Review 36 (2002):
113–38.
Kay, Richard S. ‘Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and
Responses.’ Northwestern University of Law Review 82 (1988): 226–92.
Kress, Ken. ‘Modern Jurisprudence, Postmodern Jurisprudence, and Truth.’ Michigan Law Review 95 (1997): 1871–
926.
Levinson, Daryl J. ‘Rights Essentialism and Remedial Equilibration.’ Columbia Law Review 99 (1999): 857–940.
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
Marshall, William P. ‘Conservatives and the Seven Sins of Judicial Activism.’ University of Colorado Law Review 73
(2002): 1217–56.
McGinnis, John O. and Michael B. Rappaport. ‘A Pragmatic Defense of Originalism.’ Northwestern University of Law
Review 101 (2007): 383–98.

ª 2011 The Author Philosophy Compass 6/6 (2011): 408–420, 10.1111/j.1747-9991.2011.00406.x

Philosophy Compass ª 2011 Blackwell Publishing Ltd
420 Non-originalism

Monaghan, Henry P. ‘The Supreme Court, 1974 Term—Foreword: Constitutional Common Law.’ Harvard Law
Review 89 (1975): 1–45.
Patterson, Dennis. Law and Truth. New York: Oxford UP, 1996.
Posner, Richard A. How Judges Think. Cambridge, MA: Harvard UP, 2008.
Raz, Joseph. Between Authority and Interpretation: On the Theory of Law and Practical Reason. Oxford: Oxford UP.
(2009).
Roosevelt, Kermit III. ‘Constitutional Calcification: How the Law Becomes What the Court Does.’ Virginia Law
Review 91 (2005): 1649–720.
Sager, Lawrence G. Justice in Plain Clothes: A Theory of American Constitutional Practice. New Haven: Yale UP, 2005.
Sager, Lawrence Gene. ‘Fair Measure: The Legal Status of Underenforced Constitutional Norms.’ Harvard Law
Review 91 (1978): 1212–64.
Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton: Princeton UP, 1997.
——. ‘Originalism: The Lesser Evil.’ U. Cincinnati Law Review 57 (1989): 849–66.
Solum, Lawrence B. ‘District of Columbia v. Heller and Originalism.’ Northwestern University of Law Review 103
(2009): 923–81.
Strauss, David A. The Living Constitution. New York: Oxford UP, 2010.
Sunstein, Cass R. One Case at a Time: Judicial Minimalism on the Supreme Court. Cambridge, MA: Harvard UP,
1999.
——. The Partial Constitution. Cambridge, MA: Harvard UP, 1993.
——. Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America. New York: Basic Books, 2005.
Waluchow, W. J. A Common Law Theory of Judicial Review: The Living Tree. New York: Cambridge UP, 2007.
Whittington, Keith E. Constitutional Interpretation. Kansas: Kansas UP, 1999.
——. ‘The New Originalism.’ Georgetown Journal of Law and Public Policy 2 (2004): 599–614.

ª 2011 The Author Philosophy Compass 6/6 (2011): 408–420, 10.1111/j.1747-9991.2011.00406.x

Philosophy Compass ª 2011 Blackwell Publishing Ltd