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
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]."
Here's a question I've had about the general text-and-principle approach. The first rule is, "Be faithful to the original meaning of the text of the Constitution and the principles that underlie it." But what if it's not possible to do both? What if it turns out that the constitutional language isn't actually the best way to pursue the principle underlying the constitutional language? What then? Rule 3 says, "You are required to decide consistent with the text's original meaning," suggesting that the theory is really devoted to the (original meaning of the) text, and not the underlying principle, when they conflict. But then I don't see why the view is "text and principle," rather than (as I would prefer) "historic textually-expressed principle." Put another way, what happened to the principle in rule 3?
Put simply, where the text states a determinate rule, you follow the rule because the text states a rule. Where the text states a standard or a principle you apply the standard or principle because the text announces a standard or a principle.
There are also some additional principles that are implicit in the form of government created by the Constitution or emerge from the interaction of various parts of the document, like the separation of powers and democracy.
I haven't tried to articulate all of the various complexities of the argument in the above short post. I recommend the two articles mentioned above if you are interested in these questions.
Maybe that should read: Don't assume lawyers are the only people who know what the constitution means.
After all, it's short, it's written in reasonably plain language and everyone has (or should have) read it. The constitution was meant to be read, understood and even interpreted by ordinary citizens. Our own individual constitutional judgments should affect how we vote. They should affect how we judge the legitimacy of our government as a whole.
To put it another way, I'm glad we have fancy lawyers like J.B. saying that the Bush administrations constitutional claims are bogus, but I knew they were bogus before I ever read a word he wrote.
i don't know if the two learned professors will ever find agreement and happiness together .. but the exchanges are instructive and educational for me and ..i'm sure others as well. i'm certainly enjoying reading this blog .. it's almost as much fun as reading "to my missionary critics" by mr. twain ...
Would it be too bold to suggest a "Ten Judicial Interpretive Commandments" monument outside or inside SCOTUS? It would not seem to violate separation of church and state although it might separate the men/women from the boys/girls.