How to Choose a Theory of Constitutional Interpretation

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Cass Sunstein

How should we choose a theory of constitutional interpretation?

The answer is simple: Judges (and others) should choose the theory that would make the American constitutional order better rather than worse. That answer is meant to emphasize that when people disagree about constitutional interpretation, they sare actually disagreeing about what would make the American constitutional order better rather than worse. 

That claim is not at all innocuous. It has bite. It rejects a widespread view, which is that a theory of constitutional interpretation might be “read off” the Constitution itself, or come from some abstract idea like “legitimacy,” or from the very idea of interpretation. For example, many “originalists” believe that their preferred approach is not a product of a choice; they insist that the Constitution makes that choice. The problem is that the Constitution does not contain the instructions for its own interpretation. 

You might want to ask: Who decides what would make the American constitutional order better rather than worse? If you ask that question, you might mean to offer an objection to my argument. Please stand down. The answer is: Anyone trying to choose a theory of interpretation. Judges; legislators; presidents; you; me; us. That’s all there is. There’s no else.

It follows that any approach to constitutional interpretation needs to be defended in terms of its effects, broadly conceived – of what it does for our rights and our institutions. You might be inclined to think that judges should be “originalists,” or should respect “democracy,” or should not be “activists.” You might think that the rule of law, and stability over time, are of central importance. You might think that the Supreme Court should adopt a strong presumption in favor of the constitutionality of what Congress and the President do – which means that the Court would uphold most actions against constitutional attack. Or you might reject that idea and think that the Supreme Court should take a strong stand in favor of certain rights – say, the right to free speech or the right to religious liberty. If so, the approach to interpretation that you favor must be justified on the ground that it would make our constitutional order better rather than worse—in terms of your own judgment about what counts as better and what counts as worse—and it must be compared to alternatives. 

To be a bit more specific: To defend a theory of interpretation, judges (and others) must seek a kind of “reflective equilibrium” – a term that comes from moral and political philosophy, where the search for “reflective equilibrium” plays a central role. The basic idea is that we try to ensure that our moral and political judgments line up with one another, do not contradict each other, and support one another. We achieve reflective equilibrium when that happens. That idea might seem unfamiliar and mysterious, but it is actually common; in thinking through hard questions, and maybe even easy ones, you probably seek reflective equilibrium. 

Suppose, for example, that you are trying to figure out what morality requires. How will you do that? If you are seeking reflective equilibrium, you will focus both on individual practices that seem to you to be self-evidently unjust, and on theories that might explain why they are unjust. You want to bring your judgments in order; you test them against each other. 

For instance, you might be strongly inclined to believe that slavery is unjust; that belief might be a “fixed point” for you, in the sense that you will be deeply committed to it, and exceptionally reluctant to give it up. In fact you might have a host of “fixed points,” understood as judgments to which you are deeply committed. You might think that murder and rape are wrong, that lying is wrong, that assault is wrong, that theft is wrong. Some of these thoughts might be more fixed and firm, in your mind, than others.  The most fixed convictions will play the largest role in your thinking. If a proposed theory would suggest that slavery is permissible, you are unlikely to be willing to be that theory to be acceptable. 

The search for reflective equilibrium does, and must, play a central role in constitutional law. In fact it is the only game in town. 

In deciding how to interpret the Constitution, we cannot pull a theory out of the sky, or insist that it must be right, and declare victory. It is hopeless to try to justify a theory of interpretation by pointing to some large-sounding word, such as “legitimacy” or “democracy” or even “interpretation.” Instead people must work to align their provisional judgments, described at multiple levels of generality. People might think that any theory of interpretation should not allow unelected judges to do whatever they want; that is a provisional fixed point (and a pretty good one). People might think that any theory of constitutional interpretation had better give a lot of protection to freedom of speech; for them, that is a provisional fixed point (another good one). They might think that any theory of constitutional interpretation had better forbid torture; that is also a provisional fixed point (good once more). They might think that any theory of constitutional interpretation had better promote the rule of law, understood to include stable rules that are understandable and clear, and that apply to all, not just some; that is also a provisional fixed point (very good). 

It follows that people must explore how their firm judgments about particular cases (racial segregation, compulsory sterilization, sex discrimination, gun control) fare under potential theories of interpretation. If a theory would override those judgments, that theory should be questioned. We need to go back and forth between possible theories and the outcomes that they produce. Theories might have a great deal of appeal in the abstract, but if they license the Supreme Court to strike down the Social Security Act, they might not be so appealing. 

It is important to reiterate that our fixed points operate at multiple levels of generality. They are not only about specific cases. We might have a commitment to federalism (however we understand it), which is abstract. We might have a commitment to self-government, which is also abstract, and a commitment to freedom of religion, which is a bit less abstract, and a commitment to the idea that the government can impose taxes on everyone, which is less abstract. We might have a commitment to the idea that the Constitution does not allow governments to mandate school prayer, which is pretty particular. 

Of course it is also true that our fixed points might turn out, on reflection, not to be so fixed. Some of our fixed points might be moral fixed points, not constitutional fixed points, and the two are not the same. You might think, for example, that in a just society, no one will starve, without also thinking that there is a constitutional right not to starve. And whether we are speaking of morality or constitutional law, what is fixed today might not be fixed in a month, a year, or a decade. Constitutional law itself reflects that point. It fixes and unfixes things. In 1930, it would have been pretty radical, and maybe even preposterous, to say that the Constitution forbids racially segregated schools. As of this writing, it would be radical, and quite preposterous, to say that the Constitution does not forbid racially segregated schools. In 1980, it would have been pretty radical, and maybe even preposterous, to say that the Constitution requires states to recognize same-sex marriage. Just four decades later, it would have been a bit radical, if not preposterous, to say that the Constitution does not require states to recognize same-sex marriage. In 1990, it would have been pretty radical, if not preposterous, to say that the Constitution creates an individual right to possess guns. As of this writing, that right is entrenched in constitutional understandings. 

All this is true and important. Still: To know what theory to adopt, judges and others must see if they can be satisfied that a proposed theory fits well, or well enough, with their most deeply held views about particular cases -- and also that the theory also fits well, or well enough, with broad values involving the rule of law, self-government, liberty, and equality. One more time: High-sounding abstractions about (say) interpretation, the social contract, or the founding generation cannot justify a theory of interpretation; the search for reflective equilibrium is the only game in town.

Cass R. Sunstein is Robert Walmsley University Professor at Harvard University. You can reach him by e-mail at csunstei@law.harvard.edu.