In his article for this symposium issue of the Virginia Law Review and in other places, Professor Lawrence Solum has set forth an elaborate taxonomy for judges and commentators who want to privilege originalist methods of interpretation and construction in constitutional cases. Solum’s taxonomy addresses several important issues in the philosophy of language that I will not take up in this Commentary. My concern is with the question with which Solum begins his article: What role, if any, should intellectual history play in constitutional theory? My approach to that question bypasses many of the issues to which Solum directs his attention and focuses instead on ones that I believe go to the heart of the question.
Volume 101
Unintended Implications: A Commentary on Mikhail’s “The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers”
In an elegantly written article, John Mikhail claims that the Necessary and Proper Clause of the Constitution grants to Congress an implied power to promote the general welfare. He is not talking here about the power needed to carry out the enumerated powers of Article I, Section 8. Rather he argues that the clause grants to Congress the power to enact laws that are necessary for the government of the United States to fulfill its purposes—one of which is to promote the general welfare of its people.
Mikhail builds his argument for this provocative and interesting claim using the contributions of philosopher of language Paul Grice. For Grice, language is a cooperative enterprise and is thus governed by the principle that contributions to conversation should help facilitate the purpose of the particular exchange. Mikhail is particularly focused on Grice’s distinction between entailment and implicature. Roughly, an entailment derives from the semantic meaning of the statement alone while an implicature derives from the semantic and pragmatic meaning—the words in the particular context.
To elucidate the Gricean idea of “implicature,” Mikhail focuses on a modified version of Grice’s example of the recommendation letter that damns with faint praise. In Mikhail’s example, a fictional Professor Larry Lessig recommends a prospective law clerk to Judge Richard Posner by noting that the student is “unfailingly polite and punctual” and dresses extremely well. The implicature of this letter is, according to Grice and Mikhail, that the student (Jones) is weak. We know this is what the letter means “by virtue of the premise that the speaker is cooperative and . . . we infer that Jones is a poor student because we know or assume that a recommendation letter should highlight the most favorable things that can be said about a candidate.” In other words, the “context and background assumptions” give the positive comments about Jones’s punctuality and sartorial flair a different meaning.
Mikhail uses these insights about language and communication to say something about constitutional interpretation. But that is where the trouble begins. While Mikhail offers a masterful textual analysis of the Necessary and Proper Clause of the Constitution, I am not convinced that his analysis demonstrates its meaning, and if it does, I fear that Mikhail’s efforts yield the perverse consequence of delegitimizing the very document he is at great pains to enlarge. In what follows, I raise three worries about Mikhail’s analysis. First, a constitution is not a conversation between its drafters and some other people and, as a result, it is unclear whether the Gricean paradigm has anything useful to say about constitutional interpretation. Second, it is far from clear what a constitution is for and consequently there are unlikely to be accepted conventions about how to interpret the meaning of statements within them. Third, Mikhail’s article presents evidence that the Constitution’s drafters were strategic and crafty. But if the drafters are violating the cooperative principle Grice identified, this fact calls into doubt the significance of the ratification of the Constitution from which that document, purportedly, derives its legitimacy.
A Commentary on Ristroph’s “Sovereignty and Subversion”
Alice Ristroph’s article offers both a first-order characterization of Hobbes’s accounts of law and punishment, and a second-order characterization of what Hobbes was providing us in those accounts and what, correspondingly, counts as appropriate or inappropriate criticism of those accounts. I am almost entirely in agreement with her first-order characterization of Hobbes’s political and legal theory: She is correct in rejecting the assimilation of Hobbes’s legal theory to Austin’s, and in noting the strands of Hobbes’s view that disqualify him from counting as any sort of legal positivist. And I agree, on the whole, with her characterization of Hobbes’s account of justified punishment, and that this account has its attractions yet produces some puzzles which Hobbes does not fully resolve.
My disagreements are with her second-order characterization of Hobbes’s legal theory. I want to discuss two related areas of disagreement. The first disagreement concerns whether we should assess Hobbes’s account of law in terms of the standards of general descriptive jurisprudence: Ristroph denies that it should be; I disagree. The second concerns whether we should take Hobbes’s treatment of the political as explanatorily prior to the legal to show that Hobbes was in some way apart from the natural law tradition in jurisprudence: Ristroph affirms this; I disagree.