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Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Do theories of interpretation really matter?
Thursday, May 08, 2008
Do theories of interpretation really matter?
I appreciate Brian Tamahana's recent post questioning whether those of us (including my dear friend and frequent co-author Jack Balkin) who emphasize "partisan entrenchment" as the best way to understand American constitutional development reject out of hand the importance of theoretical approaches to "constitutional interpretation." I'll certainly let Jack speak for himself, though it should be clear that our recent work is indeed going in somewhat different directions. He is indeed trying to construct a normative notion of originalism that would legitimate (and not merely explain) a bunch of unanticipated results. I, on the other hand, find myself less and less interested in the conundrums of "constitutional interpretation," and have turned instead to emphasing the overwhelming importance of the 90% of the Constitutution, its "hard-wired" aspects, that legal academics simply ignore precisely because they aren't thought to raise any interesting questions about "interpretation." But that may be too simplistic a notion. One other point, which I've made elsewhere: Most practicing lawyers are completely uninvolved in the "interpretation wars," for two quite different reasons. The first is that their duty is to make whatever arguments serve the interests of their clients, whether the lawyers "believe" in these arguments or not. And, incidentally, the duty of law professors is to teach our students the various "modalities" of argument, quite independent of what we think about them personally. I have no difficulty teaching how to make "originalist" argument, and I would think that even Steve Calabresi must impart certain skills to his students as to making "fundamental rights" arguments. We can offer pragmatic advice about the likely audience for such arguments at different moments (and in different courts), but it would be malpractice to teach only the modalities that one personally endorsed. Secondly, the overwhelming majority (around 99%) of all ventures in constitutional argument take place in "inferior courts," which proclaim their duty to follow the precedents as set down by the Supreme Court. So it really doesn't matter so much what Michael McConnell's first-order theory of the Constitution is regarding abortion, because he is pledged to adhere to precedents that continue to recognize the protected status of reproductive rights. And liberal judges have refused to declare new "fundamental interests" or "suspect classifications" even though they would obviously do so if they were appointed to the Supreme Court.
One other point, which I've made elsewhere: Most practicing lawyers are completely uninvolved in the "interpretation wars," for two quite different reasons. The first is that their duty is to make whatever arguments serve the interests of their clients, whether the lawyers "believe" in these arguments or not. And, incidentally, the duty of law professors is to teach our students the various "modalities" of argument, quite independent of what we think about them personally. I have no difficulty teaching how to make "originalist" argument, and I would think that even Steve Calabresi must impart certain skills to his students as to making "fundamental rights" arguments. We can offer pragmatic advice about the likely audience for such arguments at different moments (and in different courts), but it would be malpractice to teach only the modalities that one personally endorsed. Secondly, the overwhelming majority (around 99%) of all ventures in constitutional argument take place in "inferior courts," which proclaim their duty to follow the precedents as set down by the Supreme Court. So it really doesn't matter so much what Michael McConnell's first-order theory of the Constitution is regarding abortion, because he is pledged to adhere to precedents that continue to recognize the protected status of reproductive rights. And liberal judges have refused to declare new "fundamental interests" or "suspect classifications" even though they would obviously do so if they were appointed to the Supreme Court.
Posted 7:02 PM by Sandy Levinson [link]
Thanks for responding to my question, Sandy. You are correct to point out that much of the constitution consists of hard wired provisions about which there is much less room for interpretation. For these provisions theories of constitutional interpretation are probably unnecessary, as their meaning is not controverted except at the margins or in rare circumstances. Standard forms of legal analysis are adequate.
But many of the core disputes that divide us today are in the less hard-wired areas. That's where the problems arise, and that's where theories of interpretation are called upon. And that's where, if Posner and "partisan entrenchment" are correct, we must wonder what function is served by the theory.
"..we must wonder what function is served by theory?" -BrianPost a Comment
Ignoring the hard-wired part of the machine...
We can visualize a machine that cranks out products on a factory floor.
We have purchased the factory and are inventorying the contents.
We see the machine is cranking out a variety of products: toothbrushes, slinkies, book-ends...
We bought the factory intending to manufacture book-ends and toothbrushes.
We see the slinkies on the conveyer belt and surmise the machine is not functioning the way we would have it.
We call a repairman/machinist and tell him to modify the machine to change the output.
He does. No more slinkies.
What is the theory of the machine's "proper" function?
We know it was built to do x y & z. And if we have the complete specs of various changes. We can see that r, s, and t functions were added in various decades.
Were modifications to the original setup, "wrong"? The originalist might say, "restore this machine back to the x, y, and z output!"
Books by Balkinization Bloggers
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
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