The Constitution in 2020

The title is the name of a conference to be held at Yale University in April 2005, which will include some of the most influential and respected constitutional law scholars in the nation (though the list at this point excludes some names that certainly should be there - Richard Epstein, Doug Laycock, Randy Barnett, and others - one hopes they will be added later). It also refers to a new blog put out by the organizers of that conference that also includes some prominent names. To this point there are posts up by the likes of Cass Sunstein, Paul Smith and Mark Tushnet (whose daughter, Rebecca, I remember judging when she debated for Georgetown Day School, one of the finest prep schools in the nation. She went on to debate for Harvard and twice be runner up for the national title). The entry by Paul Smith on morality and the law focuses on the views of conservatives and "progressives":

A never-ending process under our constitutional scheme is working out the boundaries of those areas in which the political branches are barred from regulating in order to impose on the dissenting minority a particular moral perspective. This gets played out under the First Amendment speech and religion clauses. And it is the heart of the substantive due process line of cases stretching from Lawrence back to Griwold and beyond. Those who argue for few constitutional limits in this area take the view that enforcing pluralism interferes, through the operation of culture if not law, with the rights of those wishing to uphold more traditional values. Progressives who believe in fencing off a realm of individual choice over matters involving family choices, sexuality, control of the body and the like, need to work to articulate better the reasons why such constitutional rules are legitimate and necessary. Just as importantly, we need to look for ways to assure conservatives that pluralism is not just a one-way ratchet, constantly pushing their children toward the values of secular elites. If we do not, the culture wars will go on, and the Constitution in 2020 may end up being much less protective of rights of personal privacy than we hope and imagine.

I would maintain that those who seek to control others through "morals legislation" will not really be deterred by how well those who oppose them explain why they're right. Nor do I think that the social conservatives care much about constitutional law except as a means to justify such legislation. I think that most of the talk that we hear from social conservatives about "judicial activism", "original intent", or "strict construction" is really little more than a set of catchphrases that mean "judges doing things we don't want them to do". They have no problem whatsoever with activist judges doing things they do like. Many months ago, Timothy Sandefur absolutely nailed conservative judicial theory:

Joe: I would like to do X, which is something that doesn't harm anyone else.

Richard: Yeah, but I don't like you doing X. It just bothers me. Therefore I'm going to force you to stop.

Judge Bill: Um, Richard, I'm sorry, you don't have the right to interfere with Joe if he wants to do X.

Richard: Aaargh! Unelected judges taking away my freedom! Help! Help! I'm being repressed!

What they propose is not really strict construction, but majoritarian tyranny. All this talk of "unelected judges" interfering with the right of the people to govern themselves is really about judges interfering with the right of the people to govern other people, something that the Constitution was specifically designed to limit. And contrary to Paul Smith, I think this has been articulated quite well. This is not a question of convincing them that their legal theories are wrong because, in the end, their legal theories are really false constructs merely to get to the end result that they like, which is the right to control others through government coercion. Pro-lifers, for example, will rail against "activist judges" when it suits their purposes and then turn around and criticize them for not declaring abortion illegal in a case where the legality of abortion was not at issue at all. In this case, they believe that the ends do justify the means, and the means will change as often as they want them to. President Bush refers constantly to judicial activism, then during the election goes to court to try to get a judge to mandate what the law he signed did not mandate, the very essence of judicial activism. This is not a serious judicial theory, it's a political catchphrase.

Of course, it's equally true that those on the other side do not have a coherent judicial theory either, and often support whatever legal reasoning will get to the desired result. But at least they aren't so adamant in denying that they do so. So called "living constitutionalists" will sometimes appeal to precedent, sometimes to textual considerations, sometimes to the writings of the founding fathers, and sometimes to other considerations. But that doesn't leave much of a solid anchor to keep the law from floating adrift. Which is why I'm disappointed that Randy Barnett is not on the list of those who will address the upcoming Yale conference.

I think that Barnett is at the forefront of a movement in constitutional scholarship that could provide a solid conceptual foundation for limited government and help resolve some of the many contradictions in the various court precedents in this area. And along with Barnett, I believe that this view is beginning to find its way into decisions, particularly in Lawrence v. Texas. Timothy Sandefur has also done great work in this area, as have several others. As their influence continues to grow, we may be seeing the beginnings of a unified judicial theory that could replace both "strict constructionism" and "living constitutionalism", a theory that finally gets us back to the original conception of a government that, as Jefferson wanted, protects one from another but leaves all men otherwise free to live their own lives free of the intervention of others.

More like this

Sounds remarkably like my childhood. Whenever I wouldn't agree with mommy dearest about what we heard at "The Kingdom Hall", she'd start whining about how I wouldn't let HER have HER beliefs. Trying to explain that it wasn't about her beliefs but mine, got me nowhere. The need for a God/Father figure to supply moral clarity is absolute to a great many. I guess not being allowed to "parent" those of us who consider ourselves adult enough to make our own decisions IS repressive to them.

This post (and the one preceeding it on judicial activism) deal with topics that are particular research interests of mine. First, what kinds of things should the state regulate? Professor Smith's weblog entry takes up this subject. Ed's post also deals with a topic that is related to, but distinct from, that first topic: how should judges go about doing the business of judging? For the record, I agree that the phrase "judicial activism" is devoid of legal meaning. It is a rhetorical construct invoked by those in political discourse. And yes, when invoked it usually means "Judges who do things I don't like." If we're talking politics, "judicial activism" has a place in the discussion. But if we're asking "How should judges go about doing the business of judging?" then the discourse needs to shift to a different level.

In answering this question (which as you might imagine is far more complex than it appears) the legal world generally divides itself into two camps: formalists and realists. This is an oversimplification (for example, Judge Richard Posner of the 7th Circuit of the United States Court of Appeals is a proponent of pragmatism) but it will do at this point. I've commented on this before, but for more on the subject of formalism have a look at Professor Larry Solum's entries on neoformalism (follow the links within that post to review the dialog between Professor Solum and his realist counterpart, Professor Jack Balkin).

As Ed points out (But that doesn't leave much of a solid anchor to keep the law from floating adrift.), the formalist knock on realism is that it is antithetical to the rule of law. Formalists like Professor Solum claim that in order to maintain fidelity to the rule of law, judging must be done by reference to one or more formalist methods: strict adherence to precedent, a faithful reading of the text of a statute, the structure of the law (e.g., the structure of the Constitution), or some form of originalist interpretation. While originalism itself comes in different flavors, the two most popular are original intent, meaning what the people who enacted the law actually intended, and original meaning (or original understanding), what the words of the text were understood to mean at the time of enactment.

While there is much to recommend formalist interpretation, I think it is inaccurate to claim that it is the only way to be true to the rule of law. One need not have a great deal of imagination to see how a result-oriented judge, under the guise of a formalist method, can reach the outcome he or she desires. One of the things that makes Professor Solum's version of neoformalism intriguing is that it does not rely solely upon formalist methods to achieve the rule-of-law results Professor Solum seeks. He couples with formalist methods an aretaic or excellence of character model for judicial selection and judicial action. Though I don't see Professor Solum's neoformalistic model as the "unified judicial theory" Ed speaks of above, I do think his ideas are a step in the right direction and deserve much more attention.

Legal realists like Professor Balkin believe that realism is also true to the rule of law; they simply take a more expansive view of fidelity and the rule of law than do the formalists. As a generalization, it is fair to say that the realists see a greater connection between politics and the law than do the formalists. Specifically, they claim that in some cases, politics (and other disciplines as well) may legitimately inform the law and judicial decisionmaking without doing harm to the rule of law. If you take the view that "the law" as an entity is distinct from politics, then this is a divide you simply cannot cross. Once judges inject into decisionmaking anything other than the law, the product is no longer the law (or if it is, it lacks the legitimacy of decisions properly arrived at by reference to formalist methods).

The debate between formalists and realists is an old and time-honored one. Both sides tend to sit in their respective camps and lob shells at one another. While occasionally interesting (at least to a legal pinhead like me) these debates tend not to do much to move the ball forward anymore. That's why I see Professor Solum's proposal as both refreshing and important, and why I'm delighted that Professor Balkin has engaged him. For my part, my leanings tend to be toward the realist side, at least on the hard issues where the law is underdeterminate. In the "easy" cases, resort to text, structure, precedent, or history may provide a satisfactory resolution. But in those hard cases (e.g., equal protection, substantive due process, and many others) I don't think that formalist methods deliver what they promise. There must be room for judges to do what they've been hired to do: use judgment. One of reasons I find Professor Solum's thesis very helpful is that it can, by reference to the aretaic values, offer some constraints on when and how judges must look beyond formalist methods to exercise that judgment. Again, it is not a perfect solution (I doubt we'll ever find that), but it is, in my view, a step in the right direction.

I've put together a draft of a paper that responds to Professor Solum's proposal. Unfortuately, I haven't had time to do much with it over the past several months. If Ed would quit putting up these interesting posts that I can't resist responding to with long, rambling comments, perhaps I might find the time to figure out what I want to do with it. See, Ed, my lack of scholarly productivity is all your fault. Suppose the folks on the promotion and tenure committee will buy that?

If Ed would quit putting up these interesting posts that I can't resist responding to with long, rambling comments, perhaps I might find the time to figure out what I want to do with it. See, Ed, my lack of scholarly productivity is all your fault. Suppose the folks on the promotion and tenure committee will buy that?
LOL. Somehow I doubt it. I'd like to hear your comments on liberal originalism as a judicial theory. I'll bring a copy of Sandefur's HJLPP paper with me when I see you this weekend so you can look at it. The rest can be found in Barnett's various books. It seems to me that liberal originalism is a formalist theory that leads to many of the same results as legal realism, which is why I said it could serve as a unified theory of sorts.