Balkinization: The Cal Tillisch High School Chemistry Lab Assignment Method of Constitutional Interpretation

The Cal Tillisch High School Chemistry Lab Assignment Method of Constitutional Interpretation

Michael Stokes Paulsen

I just returned from attending my 30th high school reunion in Wausau, Wisconsin over this past weekend. (Wausau East '77). So interesting! So many old people!

I spent some time with my old buddy, Cal Tillisch, who is now a lawyer (of course) back in my home town. Cal and I were, among other things, lab partners in Chemistry I class, with Mr. Erdman, who just retired this year. Cal and I were decent chem students. But there's a reason why we both ended up going to law school.

Cal had a distinctive, memorable methodology for doing lab experiment reports, which he inculcated in me at every turn: "First, draw the desired curve. Then, plot the data. If time permits, do the experiment."

Teaching Con Law this year (to a group that included, for the first time ever, one graduate of my old high school), I told my students the Cal Tillisch chem lab experiment story. (Old people have a tendency to tell old stories.) I used it as a parable about how not to do constitutional interpretation -- and as a description of how some interpreters (courts, law professors, certainly many first year law students) seem actually to do Constitutional Law, at least from time to time: Pick the desired result, choose an interpretive methodology to match, and then, time permitting, do some research to find supporting evidence.

The students got it. In fact, to my delight, they identified closely with Cal's chem-lab-experiment methodology. Hmm. I guess there's a reason why they're not in the hard sciences, either. Law, and especially constitutional law, seems to attract folks who prefer to start with the desired result and work backwards, eventually reaching the research stage (if time permits).

But at least the students grasped why the Cal Tillisch high school chem lab experiment method is something less than rigorous, for constitutional law as well as for chemistry. In fact, it became an occasional mantra for the class: a standard critique of a fellow student's transparently result-oriented "legal" reasoning. "You're just Cal Tillisch-ing!" Or "Isn't that argument just an example of drawing the desired curve first, then plotting the data?"

I hadn't seen Cal in a long while -- was it not since the 25th?! But I told him the story of using his story as a teaching tool, and its incredible success. He was pleased.

* * *

There are many, many possible applications of this parable, of course. One that comes immediately to mind (since I'm writing for Balkinization) is the book project Jack Balkin hosted a few years back, What Roe v. Wade Should Have Said. Roe, perhaps more than any other modern case, has launched a thousand Cal Tillisch High School Chem Lab Experiments by really smart people (like those who wrote for that book, including Jack himself) who know the curve they desire and have been busily at work for more than three decades gathering data to plot onto that desired curve. There are quite possibly more alternative theories for Roe than for any other modern case. Jack has subsequently produced (and we will shortly be publishing in Constitutional Commentary) another inventive article entitled "Abortion and Original Meaning," in which he declares himself an originalist, cleverly re-fashions originalist methodology, finds good data that fits his new theory, and then, voila, finds that originalism, properly understood, actually supports the result in Roe v. Wade!

There's a lot of terrific stuff in Jack's article -- some great Fourteenth Amendment history. And it is not (quite) fair to dismiss it with an invocation of The Cal Tillisch Story. There often really are legitimate, overlooked roads-not-taken that better explain a Supreme Court decision than does the Court's actual reasoning. Indeed, the desired curve that Cal and I started each experiment by sketching sometimes really was the right curve! It was our data, produced by massive human error, that we needed to re-cook on a regular basis.

But there is something deeply suspicious -- at least deserving of strict scrutiny -- in an interpretive theory that appears designed to work backwards, from conclusion, in search of a validating premise. Cal Tillisch knew it back then, and his valuable insight is as valid now as it was more than thirty years ago.

Posted 3:12 PM by Michael Stokes Paulsen [link]

Comments:

I like this post, Michael Stokes Paulsen -- you should post more often!

# posted by

Charles : 4:58 PM

The problem with Paulsen's position (if I understand it right) is that EVERYONE has to use the Cal Tillisch approach to constitutional interpretation, and everyone DOES do it.

The Constitution is vague. It is hard to interpret in many places. Terms like "due process of law" could have widely divergent meanings. How do you interpret it?

Well, of course, there are many ways to do it. One can stick to the text. One can consult drafting history. One can look at the original meanings of the words. One can look at the debates surrounding the provisions. One can look at what the words mean now. One can try to pick the least absurd policy outcome. One can try to figure out what the framers would do if they were around now. One can try to understand the terms in the context of current societal understanding.

Those are all possible means of interpretation. Now, you are going to pick one, or more than one. How do you arrive at it? Well, now we are back to Cal Tillisch.

Scalia, for instance, didn't pick original understanding out of nowhere. He is passionately opposed to abortion, and original understanding lets him look at the historical meaning of the 14th Amendment at a time (the 1860's) when American law prohibited most abortions, which was not true at the founding of this country and was also not the way society was trending leading up to Roe. So, he picked that one.

Now, by saying this, I am not saying that original understanding is necessarily the wrong approach, or that there aren't good arguments in its favor. But come on! He's a conservative, so he picked a theory that yields conservative results, and then he concocted a bunch of justifications as to why it is the right theory. Liberals do the same thing.

And then, sometimes when the theory yields the "wrong" results, the judge Cal Tillisches it again and ignores the theory. Scalia did it in signing on to the majority opinion in Bush v. Gore, for instance, and in Adarand v. Pena where he ignores the fact that the due process clause of the 5th Amendment was not originally understood to bar state sanctioned racial discrimination. And he has indicated that he would ignore his philosophy to decide Loving v. Virginia the right way as well.

We are all Cal Tillisches. There is no other way.

# posted by

Dilan : 5:35 PM

dilan,

You are somewhat unfair to Justice Scalia. Unlike Justice Thomas, he is not a strict originalist, because he allows for the original meaning/understanding to be ameliorated by precedent. The Supreme Court has applied the Bill of Rights to the states via the 14th Amendment for a long time now. My rule of thumb with regard to the precedents Scalia is likely to respect is: was it a precedent when he went to law school? If so (as Brown was, barely), he's likely to respect it (hence the result in Loving). If not (as Roe was not), he won't (hence the result in all the abortion decisions).

And Scalia's method of interpretation sometimes yields results he finds distasteful. See Texas v. Johnson, Hamdi.

# posted by

PG : 5:45 PM

PG:

I don't deny that Scalia will sometimes issue a result he doesn't agree with. He will.

But there are plenty of old precedents he doesn't think much of. For instance, he just voted to overturn Dr. Miles. And I can even think of one where he is on the liberal side-- did you see his comments about Ex Parte Quirin in his separate opinion in Hamdi?

He has also followed more recent precedents, such as when he held that the factual basis of aggravating and mitigating factors required in the Court's death penalty jurisprudence (whcih he disagrees with) had to be tried to a jury.

He picks and chooses, just like the rest of us. He only pretends otherwise.

# posted by

Dilan : 6:55 PM

Dr. Miles is a red herring -- it's Antitrust, which is treated much more like common law due to the breadth of the statutes, as both the case and the good online explications of the decision emphasize. Dr. Miles was the only exception remaining from an old bad rule, back from the time when the Hugo Black misunderstanding of economics was dominant -- the only instance in which a vertical restraint was judged per se illegal instead of being subject to the Rule of Reason.

If legal a standard was supposed to be judged by scientific understanding, and there was a precedent that based its logic on the premise that the sun revolved around the Earth, I'd sure hope that even an originalist would apply the correct law.

# posted by

Loweeel : 7:02 PM

dilan,
In his criticism of Quirin, Scalia attacks it mostly for being a reversal of Milligan. So yes, he'll refuse to follow a newer precedent that falsely claimed to be following an older precedent. (Brown, in contrast, did not claim to following precedent.) Moreover, Scalia distinguishes Quirin: "But where those jurisdictional facts are not conceded -- where the petitioner insists that he is not a belligerent -- Quirin left the pre-existing law in place: Absent suspension of the writ, a citizen held where the courts are open is entitled either to criminal trial or to a judicial decree requiring his release."

Lowell,

Though I agree interpretation of the Sherman Act, due to the ridiculous results that would occur from a literal reading, has to be done in a more common-law fashion, that doesn't justify the majority's peculiar spin on the Consumer Pricing Goods Act of 1975, in which Congress and the President fairly clearly indicated that they meant for mandatory resale pricing to be illegal.

the only instance in which a vertical restraint was judged per se illegal instead of being subject to the Rule of Reason

Alternatively, one could see Leegin as the only instance in which price-fixing was judged by the Rule of Reason instead of being per se illegal.

# posted by

PG : 8:35 PM

"He's a conservative, so he picked a theory that yields conservative results ..."

FWIW, I second Dilan's assessment. It occurred to me some time ago that it was surprisingly convenient that J Scalia's (and Thomas's) preferred interpretative appraoch just happened (wink, wink) to coincide with the approach that would yield what were clearly their preferred results. This is a subtle distinction that perhaps escapes some of the more ideologically constrained: don't tailor your argument on an ad hoc basis to achieve your desired result, tailor your overall interpretative approach to maximize the likelihood that applying it will achieve your desired results.

Some of us not only don't believe in gods, we don't believe in saints. Originalists are flawed humans like the rest of us. They are consistent in their interpretative approach because it works for them; "living constitution" devotees likewise. Neither are divine, just mortals trying to do their best.

- Charles

# posted by

Charles T. Wolverton : 10:44 PM

PG:

1. There may be all sorts of reasons why Scalia voted to overturn Dr. Miles; the point, though, is that it didn't fit with your earlier explanation.

(I would add that I don't agree with your characterization of Dr. Miles. There are very good economic reasons to believe that consumers do not benefit from vertical price-fixing any more than they do from horizontal price-fixing, and that therefore the relevant fact about RPM is that it is a form of price-fixing, not that it is vetical. The sorts of alleged "non-price" benefits of RPM cited by the Court are probably more ephemeral than real, because firms can benefit from fixing the prices without imposing any of the quality controls, and there's nothing to stop retailers from charging a higher price and competing on quality anyway. Further, as an interpretation of the Sherman Act, Dr. Miles seems much more plausible than the case overturning it-- the Sherman Act was CLEARLY intended to bar price-fixing as an unfair trade practice.)

2. FYI, Brown claimed to be consistent with earlier precedent. It certainly did not claim it was overturning Plessy. So it's no different than Quirin in that respect.

# posted by

Dilan : 3:18 PM

dilan,
The Sherman Act, based on the historical situation at the time of its passage, clearly barred horizontal price-fixing. Vertical price-fixing is more of a 20th century phenomenon -- indeed, its enforceability may have to wait until now, the 21st century, as you'd see if you read contemporaneous accounts of how difficult manufacturers found it to enforce minimum prices during the middle of the 20th century when they could do so under state law. Nowadays, the technology of centralized databases and online sales may allow manufacturers to do what they couldn't when enforcement required going door-to-door.

Brown reversed the precedent set by the Court's previous decisions in Cumming v. Richmond County Board of Education and Gong Lum v. Rice, which had specifically validated the segregation of public schools. Plessy ain't the only separate-but-equal precedent out there.

# posted by

PG : 6:43 PM

PG:

1. The key is that the Sherman Act authors wanted to ban all price-fixing. They didn't make a distinction between horizontal and vertical. Overturning Dr. Miles may have had a policy rationale (though not a very good one), but it sure wasn't originalism.

2. With respect to Brown, actually, the Court claimed that the earlier precedents stood for the proposition that separate schools that were unequal were unconstitutional, and Warren said that in the situations presented to the Court, the separate schools were inherently unequal. They did not purport to be inconsistent with any prior cases, let alone overrule them.

In that sense, and in that sense only, I suppose Warren and Roberts have something in common.

# posted by

Dilan : 8:46 PM

First of all I am a laymen, one of "We the People" so forgive my ignorance, please.
But: A) The Constitution is a "living document" Article V provides for its growth and development.
B) How the hell can Judge Silberman in Parker v D.C rule that "the people" in the second amendment is actually us the people but rule that "shall not be infringed" means "reasonable restrictions? If not by th Call Tillich method?

# posted by

Vinnie : 5:39 AM

Cal Tillisch is my brother and I am Eric. You have to understand that Cal was in high school and he and Mike were (and still are) brilliant. Cal figured out the tricks to high school chemistry as well as tricks to the correct answer in every class. This is not a methodology but rather an end to getting the answer which leads to a good grade. Mike's peice is very well done and makes the point how not to approach con law. Do the research and follow it to its logical conclusion to get the right answer which may not be the answer in constitutional decisions. These guys were intellectual muskateers in high school and still use humor and creativity to make larger points today. Well done Mike.

# posted by

Eric : 11:53 PM