Legal Commentary

This question is the title of a provocative recent article by Michael Stokes Paulsen, who answers in the affirmative. For reasons I explain in a forthcoming article, I think the argument supporting this answer is mistaken. Nevertheless, it is an interesting puzzle whether a constitutional text (or any other text) can ever authoritatively supply the methodology for its own interpretation. Imagine, for example, that Article VI contained a 4th section explicitly instructing judges and other officials to interpret the Constitution according to its original public meaning. Would this resolve all doubt about how contemporary interpreters should approach the text?

It would not. And not just because the new section would itself have to be interpreted. We can presume that an explicitly worded instruction of this sort would?read in isolation?have the same meaning under any plausible contemporary interpretive approach. Nevertheless, a normative argument would still be required for adhering to this instruction in interpreting the rest of the Constitution. Of course, the instruction itself would raise the costs of applying a nonoriginalist interpretive approach to other provisions. If judges (and other officials) could ignore this language, would any constitutional provision be safe? But these costs could?at least in principle?be outweighed by the substantive unattractiveness of an originalist approach relative to plausible nonoriginalist alternatives (and to the alternative of scrapping the Constitution altogether). If an originalist approach were sufficiently unattractive substantively but so was jettisoning the Constitution, the normatively best option might be for contemporary interpreters to ignore even an explicit instruction to be originalists and instead apply some other interpretive approach to the remainder of the constitutional text. It follows a fortiori that contemporary interpreters might be normatively justified in ignoring the implicit interpretive instructions Paulsen purports to find in Article VI, which unlike an explicit instruction, simply disappear under a range of plausible nonoriginalist interpretive approaches.

An important implication is that interpretive choice need not be all or nothing, pace many originalists. Both constitutional text and original meaning can be embraced in part or in whole, depending on the values that would be served thereby.