an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
My name is Mark A. Graber and, apologies to Brian Tamanaha, I do not have a clue as to what it might mean to be a legal formalist as opposed to being a legal realist.
Ronald Dworkin and many others claim that certain constitutional provisions and precedents are best interpreted as requiring constitutional decision makers to apply their best understanding of free speech, cruel and unusual punishment, due process and the like. If Dworkin is right about the original meaning of the First Amendment (or BROWN v. BOARD OF EDUCATION), then legal formalists are in the same boat as legal realists. Of course, Dworkin may be wrong, but that is not an issue of legal formalism versus legal realism, but of the best application of formalist principles. Whether the constitution requires recourse to moral principles and what those principles are is a question of interpretation, not a question whether to interpret.
The sacred Dred Scott book (now available for 14.50 at Amazon!--hey, I've got another kid applying to an expensive college) claims that when constitutional controversies have excited a society for any period of time, constitutional sociology almost guarantees that both sides will be making plausible originalist, aspirational, and institutionalist arguments. If this is correct, then the difference between legal formalists and legal realists is again likely to be quite small in practice. I think, for example, when we combine LOVING V. VIRGINIA (persons have a constitutional right to marry persons of any race) with UNITED STATES V. VIRGINIA (gender classifications should be judged almost as strictly as race classifications), the obvious conclusion is that persons have a constitutional right to marry persons of any gender. This is as close to a logical deduction as you get in precedential reasoning, but lots of people disagree. The broader point is that if formalism cannot determine the constitutional status of gay marriage, it is unlikely to resolve other problems clearly as well.
At the bottom, everyone agrees that original meanings, text, and precedent matter. Disputes exist over the proper mix, but more important, disputes exist over the extent to which recourse to original meanings, text, precedent, structure, and aspirations resolve contemporary problems. Legitimate questions exist as to how much indeterminacy exists in law, but this is not a question between legal formalists and legal realists. A legal formalist might conclude, for example, that 200 years of inconsistent precedents, vague constitutional texts, and unanticipated regime changes have resulted in a great deal of indeterminacy. Another might conclude that, in fact, far more constitutional questions are resolved by simple application of precedent than the law reviews suggest. The important point is that this is as much an argument between formalists as between formalists and some other school of thought. Posted
by Mark Graber [link]
You are correct to say that (almost) everyone urges a mix of precedent, text, and original meaning. But it cannot be said, as you appear to suggest, that we are all legal formalists, and thus the question is over what version of formalism is best. Posner, for example, explicitly and repeatedly rejects legal formalism; the pragmatic jurisprudence espoused by Justice Breyer in his book on interpretation likewise cannot be characterized as formalistic.
These are complex issues, hard to work out in blog posts, but one way to pin down the difference at issue is to consider your own reaction to Alito's testimony (quoted in my post). Did you laugh at it? Or did you agree with it and hope he lives up to it? I agree with Alito's sentiments, though I am skeptical about whether he will live up to it (owing to his past pattern of consistently conservative decisions).
A legal formalist, to put it concisely, believes that judges can and should rule in accordance with the law, not according to their political views. Many political scientists, as you know, ridicule this idea (as attitudinal studies constantly remind us). In an earlier post about ideology in judging (three weeks ago), I articulated the sense in which this is a realistic goal for judges that can be achieved, which I will not repeat here.
I endorse Solum's article because it expresses the same sentiment.
One should note that what attitudinal research demonstrates is not that justices decide cases on the basis of their values, but that the differences between justices reflect different values. Segal and Spaeth, alas, are notoriously sloppy about this and so their findings are consistently misinterpreted. Moreover, without making any jurisprudential arguments, they classify some matters as law and others as politics, even though other commentators disagree as to what counts as law. If one thinks, for example, that precedent, text, and original meanings, best interpreted, call on justices to apply the best philosophical theory of free speech, then one could have the same data as Segal and Spaeth do, but conclude everyone is doing law.
In one sense, I am more a formalist than Brian is. I not only think Alito was relatively sincere when he claimed he would decide cases only on law, but I think he sincerely thinks that is what he is doing. Where Alito and I would disagree is on Tamanaha. Alito would claim that Tamanaha is letting his more liberal views cloud his judgment on matters where they disagree. I think that Tamanaha and Alito are both engaged in sincere legal interpretation, only that how they read legal texts is invitaby influenced by their values. Thus, I think it a nonstarter to simply say to anyone, Posner, Breyer, Alito, Tamanaha, or whoever, that they are not doing law. Rather the argument has to be that their claims about the best interpretation of text, original meaning, precedent and the like are wrong.
"This is as close to a logical deduction as you get in precedential reasoning,"
I don't think being a logician is the same thing as being a "formalist." Formalists do not try to make logical "deductions" but instead pay heightened attition to legal procedure (e.g. favoring enacted text over unenacted commitee reports, or interpreting cases according to what they say rather than according to what the judge "really" was thinking). Formalists are concerned with what is legal, not with what is logical.