Abstract Clauses and the Descriptive Limits of Originalism: Embracing Legal Realism

There seems to be an intuitive distinction between the concrete and abstract clauses of the U.S. Constitution: If concrete clauses–such as Article II’s requirement that the U.S. President be at least thirty-five years of age–appear fairly uncontroversial as to their meaning and reference, abstract clauses–such as the Eighth Amendment’s prohibition of “cruel and unusual punishments”–show a more vague and debatable content. In the Article, I argue that the peculiar modality of legal change abstract clauses undergo thwarts a complete understanding of the U.S. Constitution in originalist terms. I take up Dworkin’s “moral reading” originalism and Bork’s “orthodox” one as two archetypal reconstructions of the framers’ intent in regard to abstract clauses. Despite substantial differences, both a Borkean and Dworkinian originalism share a commitment to a formal understanding of abstract clauses. For different reasons, however, they both fail in providing a sound account of abstract clauses’ change over time: If Dworkin’s account seems at variance with the rationale of a rigid constitution, a Borkean conception of abstract clauses, although interpretatively sound, appears at odds with reality. From the failure of the two reconstructions, I deduce several conclusions. First, that the best way to make sense of the abstract clauses’ change is to give up any formalist account thereof: Abstract clauses give rise to a plain instance of informal legal change, the reason for that possibly being that formalism is in competition with other human values–namely, the desirability of the outcomes. In that abstract clauses do not comport with formalism, an originalist account thereof is not descriptively accurate. But if abstract clauses do not abide by formal legal reasoning, the lawyer might wonder how to deal with them–especially, when faced in court. I contend that philosophy of language could hardly be of any help, despite the fact that abstract clauses recall the vagaries in reference “indexicals” bring about in analytic philosophy. Conversely, the employment of disciplines that study human behavior in different normative domains might prove decisive. If these reflections wound up agreeable, the validity of the insights of American legal realism would be reaffirmed. On the one hand, constitutional law is, to some extent, “legally indeterminate”; on the other, empirical social sciences–not armchair philosophy–are our best ally in addressing the indeterminacy.