Thursday, May 08, 2008

Do theories of interpretation really matter?

Sandy Levinson

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.

If anything, I've turned into a fairly primitive "textualist," inasmuch as there really is no serious debate about the meaning of the Constitution with regard to the features that I want to concentrate on, often extremely critically. I think it is awful that Wyoming and California have the same represenation in the Senate, but there's really nothing to argue about as to the constitutional fact of the matter. Although one could construct, as a thought experiment, a constitutional attack on the Senate, it would be regarded by everyone within the relevant interpretive community that defines arguments as either "on the wall" or "off the wall" as the latter. Ditto the dreadful fact that George W. Bush will retain his presidency until Jan. 20, 2009 or that, should anything happen to him, he will be succeeded by the frightening spectre of Dick Cheney. I could go on through my standard list of example, but the point is obvious: I'm no longer particularly interested in what Justice Jackson once called the "majestic generalities" of the Constitution, which are really the only things that the contemporary legal academy is interested in. But, with regard to those generalities, I basically agree with Posner that the texts can (and will) be beaten into whatever form will serve the high political agendas of of the judges and that it is chimerical to believe that will ever not be the case.

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.


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.

It's puzzling.


"..we must wonder what function is served by theory?" -Brian

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!"


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