Tuesday, September 1, 2009

j hildner said about the below essay

"...Excellent article.

It won't do for liberal lawyers to abandon the common sense notion of constitutional principle -- that judges ought to, in some plausible sense, follow the law rather than simply make policy -- because, without such a notion, judicial authority lacks justification. Scalia has said that the mark of a principled jurist is that he's disappointed now and then by the outcomes that his theoretical commitment requires.

You can argue that Scalia is too infrequently disappointed, but at least you can call him out when he's inconsistent. He sets himself up for that criticism by setting forth a coherent theory -- one that is formally outcome-neutral -- of how judges should decide cases. He tells you how to evaluate him -- how to tell when he's cheating. Any legal theorist or judge should do the same, at least in her own mind, or else she is justifiably susceptible to the criticism that she is just making it up as she goes and doing whatever she wants -- prerogatives typically reserved for democratically elected and theoretically accountable politicians.

It *sounds* like the "text-and-principle" concept comes closest. The authors suggest that this is merely originalism made sufficiently general to embrace preferred liberal outcomes, and if that's *all* this person is saying, then, no, I don't suppose that that's enough. However, it sounds like it's in the ballpark and may be a good starting point for the "theoretical innovation" that the authors say is missing while at the same time offering, as the originalists do, a broadly appealing and comprehensible intellectual framework. Indeed, something like soft originalism resembles what many non-Federalist judges seem to be doing already, albeit not under the auspices of a self-consciously grand theory. When judges interpret statutes and even the Constitution, they frequently say something like, "We begin, as we must, with the text. See five cases."

Whatever theory liberal lawyers wish to advance, they would do well to echo this common-sensical and, perhaps for some, reassuring point: We begin with the text. *Of course* we begin with the text. We agree that some particular text sets forth the law, and that other texts -- say, the Ten Commandments or South Africa's constitution -- do not. We know that that particular text may not plausibly embrace everything we would like -- say, a general constitutional right to health care or a prohibition against redistributive taxation (although both of those arguments have been made). We know that it may require things we don't -- say, a prohibition against government endorsement of religion or equal suffrage in the Senate. It is what it is, and we're apt to be disappointed by it on occasion, regardless of our political views or ideological commitments.

(Some, such as Sanford Levinson, are so disappointed by it that they recommend a new constitutional convention -- a comprehensive re-write. Although I'm sympathetic with many -- maybe all -- of Levinson's arguments about our "undemocratic Constitution," I think he underestimates the risk that a fresh political process -- which would no doubt be infected by the sort of incoherence, lies, primitive understanding, and hopeless misunderstanding currently on display in our health care "debate" -- would make things much worse. I would fear, for example, a sharp narrowing and perhaps elimination of the establishment clause.)

However, there are some awfully good things in there. Those things are, most obviously, a republican form of government as well as a pretty good list of rights -- not subject to popular veto -- governing the relationship between the government and the governed. But, they're vague, and so the question is how to interpret them in a consistent way that is plausibly "faithful" to them and avoids legitimate complaints of "legislating from the bench." The answer of some "originalists" is to step into the shoes of those who drafted them and try to guess how they would decide the case before the court today. But, as the authors point out, it is hardly clear that such a process is justified by the text or the history or anything else.

The rights they set forth are inspired by particular circumstances and contemporary outrages, but they are couched in general terms. They are, on their face, statements of principle. It is beyond dispute that one can proclaim a general principle but not follow it in the particular case. (Indeed, the nation's founding was infected at the outset by just such a problem.) Thus, the drafters of the equal protection clause did not suppose that it required legal sex equality. Women weren't even allowed to vote at the time. No, the drafters had race in mind. But they didn't confine the language to race. The statement of principle is thus susceptible to an argument -- not previously considered or, if considered, thought exotic or outlandish -- that the principle logically applies to forms of legal discrimination other than race, including sex discrimination, because they are similar in character.

That, in fact, is our equal protection jurisprudence in a nutshell, and shows how constitutional understandings can "evolve" while maintaining -- indeed, increasing -- fidelity to the document. To shut down such arguments because the drafters would not have agreed with the particular application of the principle isn't faithful to the text but rather to an interpretive error -- an unreasonable blind spot -- of those who wrote it.

If anything, it's the Constitution to which judges owe deference, not the prejudices of the drafters. Mercifully, with the exception of the 3/5ths clause, since abrogated by amendment, they were wise enough not to write their prejudices into the document. Viewed this way, it seems that soft originalism is not an arbitrary choice to assess the meaning of the text at a higher level of generality but rather to be attentive to the level of generality that the text actually sets forth. It may be that this approach -- which relies on text, history, and moral reasoning in a very familiar way -- would produce the outcomes liberals want in a good many cases.

(For example, I think it clearly points the way toward a gay marriage right.) But it is theoretically agnostic regarding outcomes and also avoids the sense in which "minimalism" and "pragmatism" seem unprincipled. If the conventional legal materials point the way toward a gay marriage right, for example, a minimalist might urge caution because such a ruling might prove unpopular. But, if you agree that the principle entails such a right, then aren't you ignoring the Constitution and thus abdicating your responsibility to uphold it?

This is the sort of discussion liberal lawyers -- or any lawyers talking about theory -- should be having. Unfortunately, as the authors point out, we too often approach it from the standpoint of outcomes: How do I come up with a theory that says that Lochner was wrong and Roe was right? How do I come up with a theory of stare decisis that justifies both Casey (which upheld Roe) and Brown (which overturned Plessy)? I suppose it's inevitable that our political preferences, as well as our understanding of constitutional history, will inform our theoretical preferences, but those theoretical preferences must, to be viewed as legitimate, have an argument behind them other than that it fits together -- however tenuously -- past decisions the outcomes of which we approve.

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