Comments Elsewhere

Barnett:

When the text is vague, appealing to the underlying principles to determine whether or not it covers a particular situation is appropriate and inevitable. But what is not kosher is to dive beneath the surface of the text to ferret out the “underlying principles” and then resurface somewhere else entirely.

Jonathan:

The original meaning of the text trumps and underlying principles are properly used only to supplement when the text is indeterminate in a specific case or controversy.

I’m not so sure that this is true. The role that you think “underlying principles” ought to play in legal reasoning is going to depend on the status that you take those principles to have. If the underlying principles are invoked only to do explanatory work — by offering some kind of plausible general understanding of the intent behind or meaning of several passages, some of them ambiguous — then it’s true that these kind of appeals are valuable only for expository purposes, have force only as far as explaining the actual passages you’re considering, and cannot issue in results that either contradict the text, or even add any novel provisions that aren’t already made explicit in the text. So if that’s all the appeal is doing, then you’re right that it doesn’t make sense to “resurface somewhere else entirely.”

But it’s not clear to me that this is the only status that the “underlying principles” discovered in the course of legal reasoning can have. They might not be explanatory; they might be justificatory. You might think about certain provisions of the law and find that there is a general principle behind them, not just in the sense that the people who wrote the law had the principle in mind (so the principle explains what they meant in writing it), but in the sense that it provides a justification for the provision, underwrites it, establishes the domain within which the law can legitimately claim authority (and also the limits of that domain). But if that’s what you’ve discovered, then you’ve discovered something that can provide a basis for completely novel provisions, and that even can overrule specific parts of the text. (If a general principle is what gives a provision of the law whatever legitimacy it has, then the provision is only binding where, and insofar, it lives up to that principle; where it fails to express, or conform to, the principle, it fails to have legitimate authority.)

Of course, I don’t doubt that originalists would be inclined to say that we should only be interested in general principles from an explanatory standpoint, not a justificatory one. But that raises the question of why we shouldn’t be interested in the justificatory principles behind provisions of the law. If there aren’t any such principles, why aren’t there? And if there are, why shouldn’t we concern ourselves with them when we do legal reasoning?

Jason:

When the Eighth Amendment declares that we must not employ cruel and unusual punishment, for instance, it is impossible to read this coherently unless it refers to the present day.

Well, this is a question about whether “cruel and unusual punishment” is being used as a rigid designator or a non-rigid designator. You could try to argue that it’s being used rigidly, so that “unusual punishment” continues to pick out those punishments unusual in 1787. It’s a reading compatible with the text; although I think it is a bad one for roughly the reasons you cite.

Probably so, although if there is reference to contemporary conditions, it would have to be the word “unusual” that’s doing that work, not “cruel.” There’s good reason to think that what is genuinely cruel in one age is genuinely cruel in any age. (Branding with hot irons was cruel in 1787 just as it is cruel today, although it was not unusual.) Actually, I think the phrasing is rather unfortunate, since it apparently allows for any legally approved punishment, no matter how monstrous, as long as it is consistently and commonly applied rather than being assigned capriciously or arbitrarily. But it shouldn’t; cruel punishment is, after all, worse rather than better when it’s systematic and unrelenting. (This is one of the few areas where the Universal Declaration of Human Rights does one better on the Bill of Rights: “No one shall be subjected to . . . inhuman or degrading treatment or punishment.”)