Inferring and Explaining

121 words came to be in the Constitution, a funda- mentally explanatory question, is the subject of deep historical and jurisprudential debate. Te interpretive question of what they mean is even more controversial.Te second problem, though, ismore immediate.Te language of the Fifh and Fourteenth Amendments strongly suggests that personsmay be deprived of life by the statewith- out violating their constitutional rights. To address this second problem, Blackmun should appeal to a useful interpretive distinction frst introduced by Ronald Dworkin. 3 Dworkin notes that the venerable methodology of autho- rial or original intent is ambiguous. Consider the following: You have been elected as the very frst student member of the Faculty Personnel Committee. Tis is a huge tribute but also a huge responsibility. Your vote will help determine who is promoted, granted tenure, and, in some sad cases, fred. Youdome the great honor of schedul- ing ameetingwithme andaskingmy advice about how these personnel decisions should be made. I ask you to give me the weekend to collect my thoughts andwe can discuss it at the beginning of theweek. Bright andearlynextMonday, you show up at my ofce door, and it’s time for me to put up or shut up. Suppose my advice goes as follows. Personnel decisions should always be made in the best interest of the university and its students. Since we are primarily a teaching institution, being a frst-rate classroom instructor is an abso- lute precondition for tenure or promotion.We also value scholarship, so being engaged in active and productive research is also required . Here’s the problem. My little speech is a text, and I am its author. According to authorial intent models, thewordsmeanwhat I amtrying to com- municate. We both know that Professor Green is up for tenure. Being indiscrete and more than a tad unprofessional, I have let some of my stu- dents know that I think Green should not be granted tenure. I believe he enjoys a great reputa- tion as a teacher because he is showy and an easy grader. I don’t believe the students learnmuch in his classes at all. I also think his research is a joke. He’s published several articles—that’s true—but mainly in clubby journals edited by like-minded colleagues. So since you askmy advice about ten- ure, and you know my thoughts about the con- crete case of Green, if you respect my advice, you should vote against Professor Green. Right? Well, maybe not. My text didn’t talk about Green at all. It appealed to abstract notions like “best interest of the university and its stu- dents,” “being a frst-rate classroom instructor,” and “being engaged in active and productive research.” You’ve looked at Green’s record. You think the teaching evaluations are very impres- sive, and he really has more publications than I do. You think it’s defnitely in the best inter- est of the institution to tenure one of its bright- est young stars. Dworkin argues that words can have both an abstract intention and a concrete intention . 4 Youmight attempt to honormy advice by voting along the lines of my concrete inten- tion regarding Green. But Dworkin argues, and I certainly agree, that you do more honor to my advice when you focus on the abstract consid- erations such as best interest, frst-rate teacher, and active and productive research. Of course, to do that honestly, it becomes your responsibility to assess Green against these abstract standards. Te same distinction applies to the language in the Fifh, Eighth, and Fourteenth Amendments. CaPItal PunIshment and the ConstItutIon