Clueless in Silver Spring

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.