Legal Commentary

So can one take originalism--or any comprehensive theory of constitutional interpretation--seriously? One way to try to answer this question would be to compare the votes of politically aligned judges who espouse different judicial philosophies, such as Breyer (active liberty), Stevens (no discernible judicial philosophy, but leaning towards pragmatism); and Souter (no discernible judicial philosophy, but not very pragmatic); Scalia (originalist) and Rehnquist (no discernable judicial philosophy); Calabresi (Bickelian) and his colleague Jon Newman (again, no discernible judicial philosophy); McConnell (oringinalist) and any of his colleagues on the Tenth Circuit; Easterbrook (strongly originalist) and Posner (pragmatic). My impression is that politically like-minded judges usually vote the same way despite their different judicial philosophies. Justice Scalia...suggested that judges tend to agree in many cases because judges are 'moderate,' and there is surely merit to that suggestion. But a more important factor is that judicial philosophies have little causal efficacy. They do not weaken the force of political preferences. They supply not 'actionable' reasons but rationalizations for actions taken on other grounds...

If this is correct, then why should we take any theory of constitutional interpretation seriously? (including Jack's version of originalism or Posner's pragmatism, which is a theory of interpretation as well) If this is correct, moreover, it is pointless to construct a constitutional theory for political reasons. A conservative Justice who is persuaded to adopt "living constitutionalism," usually associated with liberals, will nonetheless produce conservative results applying this theory.

Jack of "partisan entrenchment" opens the constitutional curtain to reveal that it's mostly a facade, then Jack the "originalism" theorist goes back to working on the curtain.

The tension here is that a descriptive theory that concludes that law hardly matters cannot coexist easily with a prescriptive theory that asks us to take law seriously.

There is no question that a lot of what passes for "constitutional interpretation" has involved the rewriting of the constitution over time (as partisan entrenchment says). We have engaged in a lot of fudging and fibbing over the last two centuries. Although it involves the interpretation of a document with legal status (Constitution), and this interpretation is done by legal officials (Justices), this is not "legal" interpretation in the standard sense.

The source of the problem is the idea that an established (and nigh impossible to change) constitution can or should govern our activities for any significant length of time. There is great value to having a stable framework, especially at the outset of a polity, but as time goes on the cost brought by its obsolescence increases (meanwhile, the development of a stable political and legal culture makes the written framework less necessary).

Until we resolve this problem, constitutional theorists and Supreme Court Justices will be in impossible positions. There will be a lot of politics in interpretation, constitutional provisions will be twisted in novel ways, and winking, fudging and fibbing will be hard to avoid.

Full post as published by Balkinization on May 08, 2008 (boomark / email).