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My Advice to Judges (For What it's Worth)

By Jack M. Balkin

Eric Posner remains insistent. He wants to know what I would tell judges about how to decide cases consistent with my views of the living constitution. As described earlier, I think that living constitutionalism is a theory about the legitimacy of the constitutional system as a whole rather than a theory that secures legitimacy by instructing judges to decide cases this way rather than that way. But Eric is certainly right that this emphasis does not exclude the possibility of giving judges general forms of advice as participants in the legal system. It's just that I don't think this sort of advice does much good for judges who are already well socialized into the mainstream of legal culture, and these are about the only sort of people who tend to get positions as judges in the first place. But Eric will not be denied: he wants an answer, so I guess I have to give him something.

Nevertheless, I should warn him that my advice for judges is, I fear, rather boring and humdrum; worse yet, I doubt it will help any judge decide any difficult case, for it will prove indeterminate in a wide variety of situations. I do wonder whether it will satisfy Eric:

1. Be faithful to the original meaning of the text of the Constitution and the principles that underlie it.

2. Make legal arguments using the modalities of text, history, structure, prudence, precedent and national ethos.

3. You are required to decide consistent with the text's original meaning but you are not bound by the original expected application of the text, although that may be useful evidence of original meaning or of the principles underlying the text.

4. Apply existing precedents as long as they reasonably implement text and principle, even if they are imperfect articulations of text and principle and even if you would have done things differently if you were writing on a clean slate.

5. Employ humility and charity in assessing constitutional interpretations of the past. Even if you think that previous jurists did not correctly implement text and principle, try to understand how their interpretations, read in their best light, might be faithful to the Constitution's text and principles.

6. Use the techniques of common law decision making to extend, limit, and revise doctrines and precedents to help keep them faithful to text and principle as you apply doctrines to new fact patterns and changing circumstances. Most of your work as a judge (and especially a lower court judge) will involve doctrinal development and application. Remember that doctrine and precedent should serve constitutional text and principle, and not the other way around.

7. When in the exercise of your best judgment, doctrinal encrustations and elaborations no longer adequately serve text and principle, or now conflict with them, you should overrule them and create new doctrinal solutions to implement text and principle. Once again be guided by the notion that doctrine and precedent should serve text and principle, and not the other way around. This advice about overruling previous decisions is of particular importance to members of the Supreme Court. If you are a lower court judge, you should do your best to accommodate your judgment in terms of existing upper court precedent.

8. Don't assume that judges are the only people who know what the Constitution means.

9. Pay attention to the tradition of conflicting interpretations of the Constitution that has been handed down to you as a potential source of enlightenment.

10. Do you best to live up to your judicial oath of office "to administer justice without respect to persons, [to] do equal right to the poor and to the rich, and [to] faithfully and impartially discharge and perform all the duties incumbent upon [you]."

Any questions, Eric?

Full post as published by Balkinization on March 31, 2008 (boomark / email).