This is a reply to an interesting post by Léonid Sirota, found here.
Figuring out the contours of living tree jurisprudence can be a little tricky, and Sirota’s “whole systems” conception of living tree jurisprudence is essentially correct. However, it would be strange if the living tree thesis did not have any effects on the norms of interpretation in judicial review. I think the consequences are roughly as follows. In deliberation over cases in constitutional law with entrenched and reasonably settled rules, the text itself only imposes soft constraints on interpretation, in the sense that it can be (and often is) counterweighted by context. Deliberation of this sort acknowledges that all legal interpretation involves paying heed to two masters, the requirement of flexibility and the need for protected expectations. Sometimes the text helps in negotiating that process, but sometimes it doesn’t. When it doesn’t, you have to appeal to context to establish legal meaning.
Whether or not you think the contextualist mode of interpretation is wrongheaded will depend on what you mean by “the text”. Some scholars think that textual meaning is an objective context-invariant method — a semantics. So, textual meaning is associated with the methodical application of deductive rules for the sake of following entailments. To appeal to contextual meaning (i.e., the living tree) would be to say that deduction plays only a partial and inchoate role in inference during judicial review, and that the text is one useful interpretive tool among others, that is rarely sufficient to decide any but the clearest of cases.
It is true that Lord Sankey’s counterfactual treatment of the question — where ‘person’ was explicitly encoded in statute to mean ‘men’ — would provide no support to a living tree concept. In that counterfactual world, the issue of the ‘living tree’ would not have arisen. But that is not to say that, in that world, the living tree conception would have been false. It just means that, in Sankey’s estimation, the case (in that world) would not have triggered a need to talk about it. But in our world, once it is talked about, the genie is out of the bottle, the principle can be applied in ways that were not anticipated by its creator. That’s just how it is with the common-law, and how it is especially with this particular precedent as a matter of its content.
Of course, it is true that other living tree theorists might disagree with Sankey in placing the emphasis he does on original meaning in the counterfactual case. For some would like to explicitly recognize the right of a judiciary to overturn explicit statute and precedent that has run its course. But that doesn’t mean they’re not both captured by the metaphor. Nor does recognition of these differences feed into the myth that there can be no overlap between living tree theorists and certain varieties of originalism, including Sirota’s favored public meaning variety. (I am not saying Sirota subscribes to that myth.)
In one of the passages in Sankey’s decision, quoted above, he showed that there is a distinction between presupposition and definition. He reasons that it was presupposed that women were not people, but not defined; hence, the Court was free to exercise its discretion. He is mostly interested in the contents of judicial and legislative decisions, where uptake is essentially constrained in ways that would make the distinction plausible. Meanwhile, a public originalist faces the question of whether they have the conceptual resources to make this distinction themselves in a way that would preserve expectations. However, both presuppositions and explicit definitions are public, with potentially equal normative force. A study of a corpus of testimonies regarding the uptake of law might in some sense recover a sense of at-issue content, but (absent further theory) it will be wider in its connotations than the sort of meaning that is processed by individual brains during the course of conversational exchange. This method does not sound like it will be much good at preserving stable expectations; indeed, it may be a source of considerable surprise.
A clearer example of judicial revision would be a case of overturning legislative intent: i.e., the American courts overturning centuries of intentionally legislated bigotry in Brown v Board. The living tree theorist has the power to say that these revisions were appropriate, given the purposes of Charters which guide interpretation — protection of minority rights in a democracy against the inauthentic wishes of the majority, to borrow a suggestion from Wil Waluchow. The arborist has that power because they think legal meaning is essentially connected to the context of use and utility, and especially in relation to historical conventions related to right and duty that bear on the operations of a representative democracy. Sadly, even on this basis, it is not entirely clear that even a legal arborist of this stripe is able to save the principles and priorities of the American system of law. But at least they have a shot. Meanwhile, a living tree originalist (Sankey, perhaps) is left out to dry.
In fairness, an anti-original textualist could come to the same conclusion in Brown, albeit on different grounds. The textualist can say of Brown that the framers did not understand the meaning of equality, that they had the wrong conception of that concept. And that now we know better, we can acknowledge the blunder, replacing the old conception with a new one. But the anti-original textualist lacks the sensitivity needed to articulate the features of our deliberative circumstances which would give rise to the problem in the first place. They can explain what the law says and can explain why the framers were confused in their thinking about it. But they cannot explain what makes the new understanding better than the old one, because they think that would involve changing the subject away from questions of meaning and into questions of design as if the two questions were unrelated. Many of us find that strict separation quite peculiar.