by Matt Barr

Pluto struck down as unconstitutional

Eddie Izzard has a bit in his Dressed To Kill show where he lampoons the Episcopal Church. The subject of a sermon in this (as Izzard sees it) unserious church is an article in a fashion magazine. "The lipstick for this season will be in the frosted pink area, with nails to match," the pastor begins. Remembering he's sermonizing, he quickly adds, "which reminds me rather of our Lord Jesus!"

Not dissimilarly, the "demotion" of Pluto to dwarf planet status reminds Mark Graber rather of how a theory of constitutional interpretation he disagrees with is bogus. At least, it raises "some questions about any variation of original meaning, whether we focus on specific expectations or general principles."

Imagine that astronomers had discovered that, contrary to previous knowledge, Pluto did not actually revolve around the sun. In which case, Pluto could have been reclassified consistent with the original meaning of "planet." That the persons responsible for the original meaning of planet (or the most recent authoritative definition) thought Pluto met the conditions for being a planet is of no relevance to whether Pluto is a planet, if new evidence reveals that Pluto does not meet the general conditions for being a planet. Similarly, whether the persons responsible for the Fourteenth Amendment thought the equal protection clause protects abortion rights is of no relevance to whether the Fourteenth Amendment protects abortion rights if, on reflection, we come to believe that abortion rights are consistent with the general conditions for being an equal protection rights or, more accurately, the general principles underlying equal protection.

I'm no originalist, but the difficulties with this analogy are obvious, probably more so the less eager you are to conform it to your desired conclusion ("My argument is not that the proponents of abortion cannot rely on the original meaning of the Fourteenth Amendment," Graber hastily adds, to head off hate mail).

The principles of astronomy in effect when Pluto was classified a planet did not provide for a way the principles of astronomy could be amended, say, by a vote of three fourths of all stargazers. That's not how science works. It is, or was, till 40 years ago or so, how the Constitution works. If we strain our metaphors real hard and decide something we thought was a planet, and was considered a planet for decades, isn't really, we can amend our astronomic principles. It's difficult, but it's actually supposed to be, so that's not a bug, it's a feature.

Graber wants to head this off:

Constitutional developments do not simply create conditions under which practices originally classified as constitutional must be reclassified as unconstitutional (and vice versa), new conditions also challenge the capacity of existing constitutional principles to provide adequate criteria for classifying practices as constitutional or unconstitutional.

This, he says, is like discovering the existing principles of astronomy do not adequately describe astronomic phenomena. In such a case, like astronomers, "we will have to adjust general principles as well as specific applications." We're really just shadowboxing here until we peel back and try to understand who Garber means by "we."

That capacity needs to be expanded does not mean that smart people need to get together and form a consensus on the matter when it comes to the Constitution, though it might in astronomy. You have to willfully ignore the Constitution itself to decide that you and yours are the only adequate agents of change. Article V of the Constitution does not say "shall propose Amendments to this Constitution, except as to important, capacity-expanding general principles."

The relative importance of the important general principles is instructive, too. Graber is appropriately (for the subject matter) insouciant about Pluto's fate. "That the persons responsible for the original meaning of planet (or the most recent authoritative definition) thought Pluto met the conditions for being a planet is of no relevance to whether Pluto is a planet, if new evidence reveals that Pluto does not meet the general conditions for being a planet." But does not meet what general conditions? How discovered? Does not meet to whose satisfaction? Does any of this matter to him, you or me, really?

The right answer to the "to whose satisfaction" question is people who do astronomy for a living; the problem, of course, is that we're all citizens of the United States, and in quaint, bygone theory anyway, should have a bit more invested in what our Constitution says than whether a hunk of rock hundreds of millions of miles away is a planet or a dwarf planet. I engaged in a little misdirection above when I referenced "three fourths of all stargazers." Stargazers don't have any legal, moral or other claim to the right to determine whether something is a planet or not. (Whether according to dispersed wisdom theory relying on all stargazers might be a good idea is a different matter.) The proper analogy would be to a vote of three fourths of all, say, astrophysics departments at accredited colleges and universities. They're the stakeholders, and the only ones whose lives or livelihoods are affected by Pluto's classification.

The stakeholders, the ones with a legal and moral claim to the right to amend or not amend the Constitution, are not so limited -- or so the Constitution would have you believe, if you read it. Graber's problem is that the idea that people who do constitutional theory for a living should be deciding what the Constitution says in much the same way people who do astronomy for a living should be deciding what Pluto is is not incredibly offensive to him.

Also from this week's Blawg Review at Ernie the Attorney: Does Pluto have a cause of action?

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