Deferentialism: A Post–originalist Theory of Legal Interpretation

In this paper, I present “Deferentialism,” a new conception of legal interpretation that has close affinities with originalism, while shedding much of its accumulated baggage. The new conception includes two dimensions of deference to original sources: one to a species of original meaning, and the other to a species of original intent. The dimensions are ordered. The first task is to identify the relevant original meaning; intent becomes constitutive, as opposed to merely evidential, only after that meaning has been identified.1 The first question in interpretation is: what does the law say, assert, or stipulate? Saying, asserting, and stipulating are speech acts—or, in more technical philosophical terminology, illocutionary acts—as are confirming, denying, ordering, and promising. Each of these involves taking a certain stance toward the content of the act. To say or assert something is to commit oneself to it being true, as is to confirm something in the special case in which it has been the subject of previous interest or inquiry. To deny something is to commit oneself to its being false. To order someone to do something is to direct that person to make it true that he or she does such-and-such, while to promise to do something is to commit oneself, often by asserting that one promises, to making it true that one does suchand-such. Stipulation is similar. For a proper authority to stipulate that, say, the speed limit on certain roads in New Jersey is sixty miles per hour is for the authority to assert that the speed limit is sixty miles per hour and for that very assertive act to be a, or the, crucial component in making what is asserted true.