Posted on by Marc O. DeGirolami

New Paper on the Distance Between Constitutional Theory and Constitutional Judging

Former Forum guest Kevin Walsh and I have a new paper that examines the relationship of and the separation between constitutional theory and constitutional adjudication. The article is called, Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory. There is a law and religion connection as well, as part of our discussion concerns cases decided by these judges involving perceived official favoritism of Christianity. Comments are most welcome, and I’ll try to have a bit more about the paper in the coming days and weeks. Here’s the abstract.

Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own?

This Article answers that question — a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges’ own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions — character traits that pertain to judicial excellence — that can and should be criticized on their own terms.

Posted on by Marc O. DeGirolami

Stoner on the Disposition of the Common Law

James Stoner’s work on common law constitutionalism has been deeply influential on my own thinking about the interpretation of the religion clauses, as well as on more general questions of constitutional interpretation. My own approach in fact adopts something like Professor Stoner’s common law constitutional method (though its motivation for adopting that method is different than Stoner’s), distinguishing it from other common law constitutionalist methodologies (e.g., the approach of David Strauss). Here is an interesting post that Professor Stoner has just written on the disposition of the common law (in part it is a response to CLR Forum friend, John McGinnis). A longish bit:

To the authors of the Constitution, the Bill of Rights, and the Civil War Amendments, common law meant nothing like “judge-made law,” and the use of the modern supposition to untether constitutional law from the Constitution is unwarranted. Moreover, the original understanding of common law—as the unwritten customary law of England, registered in decisions of the courts, and carried over to the American colonies as an inheritance and adjusted to their circumstances—seems to me essential to the interpretation of the Constitution itself, which includes common-law language and takes for granted that the judicial power it established would largely operate by common-law forms: following precedent, recording judicial opinions, drawing the bench from the bar, employing trial by jury, and adhering to due process in myriad other ways . . . .

Originalism and textualism, for example, derive from maxims you can find in Blackstone’s account of how to interpret statutes, and I think they make sense not as free-standing theories of interpretation but in the context of all Blackstone’s adages, including, for example, that one begin by discerning whether the text declares the common law in writing or remedies some mischief, that one interpret criminal statutes strictly and statutes against frauds liberally, and the like. True, constitutions are not exactly statutes, only similar to them: Like statutes, they are put in writing; unlike statutes, they are made by a constituent authority and cannot be easily changed. Are the powers of government granted in constitutions to be interpreted strictly or liberally? What about rights that are reserved?

These questions fell to judges to decide, reasoning according to “the nature and the reason of the thing,” to borrow Hamilton’s words in The Federalist, and this was something common-law judges were trained to do, bound on the one hand by “strict rules and precedents” (Hamilton’s words again) and accustomed on the other to settling new cases through reasoning by analogy, as Edward Levi nicely explains in his Introduction to Legal Reasoning (Chicago, 1949). Understanding the common-law meaning of “judicial power” in the Constitution resolves what would otherwise be the paradox of judicial review, an unwritten power to enforce a written Constitution. And it makes perfect sense of constitutional passages like the Due Process Clause or the reference to “other rights” in the Ninth Amendment. These are not blank checks given to judges, but indication that there is a rich texture of established though unwritten law that they are charged to remember. Hamilton, again, indicates as much when he writes approvingly of the ability of judges “to mitigat[e] the severity and confin[e] the operation” of “unjust and partial laws.” . . . .

Leaving the Constitution to be interpreted in court by judges trained in common law meant it was in the hands of men who habitually looked to find the law applicable to the case before them, not who set out to replace it. When called to interpret the Constitution, the presumption in favor of the authority of the text and its original intent might be heightened, given its sovereign source, but precisely because the Constitution was meant to endure, its meaning had to be adapted to novel circumstances. One can’t avoid asking what comprises a constitutional search in an age of electronic communications, or what is “commerce with foreign nations, and among the states” when the manufacturing process from design through production is fully globalized and you can complete the purchase of almost any item from across the ocean at any time of day without leaving your home.

By focusing on the individual case, allowing the appeal to reason, settling the meaning of law to make property secure and the application of government coercion predictable, and including rules and maxims that leave individuals free to take initiative while holding them responsible for the consequences of their deeds, the common law was held by its advocates to be a great friend and promoter of human liberty. It had its critics, too, who complained that unwritten law was obscure, too much the preserve of the lawyers’ guild, and its favor for private property and individual liberty were inappropriate in a collectivist age. The abandonment of common-law rules and perhaps above all of the common-law spirit by many in the guild of lawyers over the course of the twentieth century no doubt contributed to the eclipse of common law—Professor McGinnis has valuable insights on this score—but probably more fundamental was the culture’s growing historicism: its skepticism toward any permanent standards of right and wrong, its consequent indifference toward tradition as a repository of wisdom, its expectation, not to say, encouragement of intractable partisan division given the supposition that questions of value cannot be rationally settled. Actually, common law really claimed to be common, to articulate a social consensus, more than it claimed to be unchanging; jury verdicts at common law have to be unanimous, and judges on the losing side of cases decisively settled typically feel constrained thereafter to accept the precedent and direct their argument to new issues, where they hope to limit a bad precedent’s future reach.

Posted on by Marc O. DeGirolami

McGinnis & Rappaport, “Originalism and the Good Constitution”

The importance and influence of originalism as a theory of constitutional interpretation cannot be overstated. Originalism demands a response, and it has been uniquely successful in generating responses (whether sanguine or skeptical) from constitutional scholars as well as the broader public. In recent years, originalism has enjoyed renewed prominence in both the courts and the scholarly community. So-called “new originalism” has come on the scene, garnering a few unexpected adherents. And originalism’s influence has certainly increased on the Supreme Court in the last decade. Indeed, it is difficult to imagine an opinion on, for example, the Recess Appointments Clause in the upcoming Noel Canning case that does not discuss originalist methods and reach conclusions consistent with originalist interpretive theory. That prediction could not have been made in previous eras.

The influence of originalist thinking on the interpretation of the Constitution’s religion clauses has been perhaps less powerful than in other areas (Michael McConnell’s work is a notable exception, and there are a few others). In part this is due to complex and difficult disagreements among scholars about the meaning and scope of the Free Exercise Clause (see, for example, the old debate between McConnell and Philip Hamburger, reflected in the dueling opinions by Justices O’Connor and Scalia in City of Boerne v. Flores). In part it is due to the radical expansion of the coverage of the Establishment Clause in Supreme Court caselaw beginning in the 1940s (see Donald Drakeman’s book, among other treatments) well beyond its original meaning. Nevertheless, there is a distinct possibility that originalist analysis will play a prominent role in the interpretation of the Establishment Clause in the upcoming Supreme Court legislative prayer case–at least in some of the opinions.

All of this is just a little background for what looks to be an extremely Originalism and the Good Constitutionimportant new book on originalism by two of the most acute proponents of originalism (specifically, original methods originalism, which the authors usefully compare against the constitutional construction of another new originalist, Larry Solum) writing today: Originalism and the Good Constitution (HUP 2013) by John McGinnis (Northwestern) and Michael Rappaport (University of San Diego). The book is a must-read for anyone interested in constitutional interpretation (even for–especially for–those of us who are not originalists). For some of my own thoughts about originalism in constitutional interpretation, see the second half of this paper. The publisher’s description follows.

Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities—both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number.

The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can following the original meaning be justified, given that African Americans and women were excluded from the enactment of the Constitution in 1787 and many of its subsequent Amendments? What is originalism’s place in interpretation of the Constitution, when after two hundred years there is so much non-originalist precedent?

A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. Their book will be an important contribution to the literature on originalism, which is now the most prominent theory of constitutional interpretation.

Posted on by Marc O. DeGirolami

Brooks on the Rising Orthodox Jewish Community

An excellent column by David Brooks this morning (noted by Ms. Wright below) on the rising strength of New York’s Orthodox Jewish Community.  One highly relevant feature of his piece is the importance of law as a structure that limits choice, and of the beneficent constraining power of law.  You should read the whole piece.  But by far the sharpest line in it is not Brooks’s, but belongs to Chief Rabbi of the British Commonwealth Jonathan Sacks: “The Torah is an anthology of argument with a shared vocabulary of common restraint.”

An analogy is made here (by Brooks and Rabbi Sacks both, it seems) to constitutional law — that is, a conceptual connection between shared cultural norms and norms of constitutional interpretation and adjudication.  Amen.

Posted on by Marc O. DeGirolami · 2 Comments

Drakeman on Original Intent, Original Meaning, and Religious Liberty

I’ve enormously enjoyed Don Drakeman’s posts, and had questions for the readership here (and for Don!) about this post involving original meaning and original intent.  Don raises a number of points that I’ve been having a hard time wrapping my mind around with respect to the contemporary discussion of new (or new new) originalism.  First, are there still advocates (besides Don) of the utility of original intent originalism floating about?  I think there are (Larry Alexander comes to mind, and I have a memory of something on this by Steve Smith, too) but they seem to be grossly (and increasingly?) outnumbered by original meaning originalists.  I should also note that Don, from my reading of his work, is not exclusivist about original intent.  He simply thinks it might be useful evidence to consider.  Second, is what Don says about the equivalence between the substantial underdeterminacy of original meaning originalism and original intent originalism accepted by original meaning originalists (see Don’s example about the varying interpretations of establishment in Massachusetts and New Hampshire, and for more examples, see his book)?  There may, of course, be reasons to opt for original meaning over original intent (though the hypothetical time-traveling law professor analogy presents its own problems), but isn’t Don right that mitigating the problems of underdeterminacy surely is unlikely to be one of them?

Posted on by Marc O. DeGirolami

Review of Judge Wilkinson’s Book

Perhaps not centrally related to law and religion (though not disconnected from it either), but here is my review of Judge J. Harvie Wilkinson III’s book, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance, over at The New Republic.  I have the rough sense that my take is generally more positive than what I’ve seen from other legal academics and commentators, but perhaps you will let me know.

Posted on by Marc O. DeGirolami

Constitutional Appoggiaturas

The cadenza in music is a solo flourish by a performer which is sometimes simply notated as such on the page by the composer — as a moment for loose impromptu brilliance.  And in his exceptional piece, “Constitutional Cadenzas,” Dan Farber argued that there are sections of the Constitution which contain cadenzas — “instructions for the interpreter to improvise on the Constitution’s grand themes.”  Professor Farber focused on the Ninth Amendment and the Fourteenth Amendment’s Privileges or Immunities Clause as such sections.  “[B]oth of these constitutional provisions,” he wrote, “call for the protection of unenumerated fundamental rights, leaving the specification and evolution of those rights to further elaboration.”  Though Farber accepted that certain sources might be useful for the constitutional virtuoso to draw upon in his act of improvisation — specifically, “transnational legal sources” and “contemporary social consensus” — the constitutional cadenza is ultimately not dependent on these sources but on the high Romantic idea of the artist as interpretive genius.  The performer of the cadenza may know something about previous performers — he may perhaps take notice of past interpretations — but his performance ultimately is judged by the elegance and beauty of his own interpretation alone; indeed, often any accompaniment or orchestra will stop and the cadenza will be played solo.

I have a different musical metaphor in mind — the appoggiatura.  The appoggiatura is an ornament on a core theme; it is a quick grace note usually extremely close in distance to (generally just a half note above or below) the essential melody.  In Italian, ‘un appoggio’ is a support or something to lean on in a moment of weakness or indecision.  Like the cadenza, the appoggiatura is an embellishment — it allows the performer some leeway in interpretation, some discretion about how long to hold the appoggiatura, for example.  But unlike the cadenza, the appoggiatura is not a license for the performer to improvise at will.  The appoggiatura cannot stray very far at all from the melody — it is greatly limited in both distance and time, and it depends heavily on what came before and what comes immediately after.  It leans on the theme, and relies on it for support, but what comes from that dependence is something (modestly, constrainedly, but with time increasingly) new.

What might be a constitutional appoggiatura?  There are many possibilities, but the one I want to explore is an application to the idea of “departmentalism” in constitutional interpretation.  Departmentalism is the idea that none of the three branches is either the exclusive or the supreme interpreter of the Constitution.  Each has an interpretive role to play.  Madison put it this way in Federalist 49:

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Posted on by Marc O. DeGirolami

A Thought on Evolutionary Textualism

One of the more interesting things about the directions in which Employment Division v. Smith has been interpreted by subsequent judges is the possible implication for textualism as a theory of constitutional interpretation.  The primary virtue of textualism is sometimes said to be its fixity: words mean something — and that something can be fixed and understood by later interpreters to mean exactly what it meant at the time of the words’ authorship.  And yet it seems to me that the interpretation of the Smith decision — and particularly the expansion of the exceptions which Smith itself mentions (including by the Court itself in Hosanna-Tabor) — may suggest something like the opposite view.  Textualism is in some ways a theory of interpretive change, in a way that intentionalism could never be.

Here’s why. 

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