Thursday, May 08, 2008

If Partisan Entrenchment Is Correct, Why Bother Articulating A Theory of Constitutional Interpretation?

Brian Tamanaha

The Jack Balkin (our generous host) who, along with Sandy Levinson, articulates a descriptive theory of the development of constitutional law as largely a matter of "partisan entrenchment" appears to be in tension with the Jack Balkin who is building a version of originalism as a prescriptive theory of constitutional interpretation. If their account of partisan entrenchment is correct, then theories of constitutional interpretation are mere window dressing, for the underlying infusion of political views into constitutional interpretation takes place no matter what theory of interpretation Justices espouse. Richard Posner makes this point in his recent book:

So can one take originalism--or any comprehensive theory of constitutional interpretation--seriously? One way to try to answer this question would be to compare the votes of politically aligned judges who espouse different judicial philosophies, such as Breyer (active liberty), Stevens (no discernible judicial philosophy, but leaning towards pragmatism); and Souter (no discernible judicial philosophy, but not very pragmatic); Scalia (originalist) and Rehnquist (no discernable judicial philosophy); Calabresi (Bickelian) and his colleague Jon Newman (again, no discernible judicial philosophy); McConnell (oringinalist) and any of his colleagues on the Tenth Circuit; Easterbrook (strongly originalist) and Posner (pragmatic). My impression is that politically like-minded judges usually vote the same way despite their different judicial philosophies. Justice Scalia...suggested that judges tend to agree in many cases because judges are 'moderate,' and there is surely merit to that suggestion. But a more important factor is that judicial philosophies have little causal efficacy. They do not weaken the force of political preferences. They supply not 'actionable' reasons but rationalizations for actions taken on other grounds...

Theories of constitutional interpretation, in this view, operate as the legal framework within which Justices work to achieve their political preferences. Sometimes this framework will have its own internal implications, restricting a Justice from reaching a given desired outcome, but by and large this is not a major hindrance. That's how "partisan" gets "entrenched" in constitutional doctrine.

If this is correct, then why should we take any theory of constitutional interpretation seriously? (including Jack's version of originalism or Posner's pragmatism, which is a theory of interpretation as well) If this is correct, moreover, it is pointless to construct a constitutional theory for political reasons. A conservative Justice who is persuaded to adopt "living constitutionalism," usually associated with liberals, will nonetheless produce conservative results applying this theory.

Jack of "partisan entrenchment" opens the constitutional curtain to reveal that it's mostly a facade, then Jack the "originalism" theorist goes back to working on the curtain.

The tension here is that a descriptive theory that concludes that law hardly matters cannot coexist easily with a prescriptive theory that asks us to take law seriously.

There is no question that a lot of what passes for "constitutional interpretation" has involved the rewriting of the constitution over time (as partisan entrenchment says). We have engaged in a lot of fudging and fibbing over the last two centuries. Although it involves the interpretation of a document with legal status (Constitution), and this interpretation is done by legal officials (Justices), this is not "legal" interpretation in the standard sense.

The source of the problem is the idea that an established (and nigh impossible to change) constitution can or should govern our activities for any significant length of time. There is great value to having a stable framework, especially at the outset of a polity, but as time goes on the cost brought by its obsolescence increases (meanwhile, the development of a stable political and legal culture makes the written framework less necessary).

Until we resolve this problem, constitutional theorists and Supreme Court Justices will be in impossible positions. There will be a lot of politics in interpretation, constitutional provisions will be twisted in novel ways, and winking, fudging and fibbing will be hard to avoid.


Is this another realist/formalist debate?

If not, perhaps a close cousin.

Any Wittgensteinians in the house?

Not just theories of constitutional interpretation, but why bother understanding/teaching the doctrine as well?

"..why bother understanding/teaching the doctrine as well?"

Because it exists as a kind of statistical core around which a shell of decisions hover.

Just joking....

"Any Wittgensteinians in the house?"

I'd have to plead semi-guilty to whatever extent I actually understand Wittgenstein.


I can't say that I understand him very well either, except that everyone likes to bring his name in (as I did) whenever the indeterminacy of a certain "objective" project is highlighted.

I don't recall he had much (if anything) to say about legal analysis, but would suppose he might gnomically assert that constititutional interpretation is a game whose grammar is defined by the interpreters themselves and thus "hangs in the air" with the original topic, unsupported.

I think the most apposite things he could have said in relation to law, he reserved for his views on art.

Suppose the normative theorists all stopped theorizing and took up golf instead. Would our understanding of what courts actually do be affected by their absence? I think it would. Without normative standards, we would not be able to see partisan entrenchment for what it is.

Well analysis is analysis, legal or not. What courts do is decide cases, and W. had plenty to say about that. It's often crossed my mind as I've investigated the Bush administration's war crimes the last 6.5 years that lawyers leave a lot to be desired when it comes to logic and analysis.

...and that W. might very well suppose that some of the briefs I've read in that setting were more in the line of a psychiatrist than a judge. I mean I've seen briefs were I've said to myself "any lawyer who would submit that brief to a court of law is unfit to be a lawyer" -- and I've seen opinions like that too. And I don't base that on their premises and conclusions so much as their 'logic' -- when someone argues that 1 + 1 = 0 or 3 they are clearly up to something, but it isn't anything could be accurately described as "legal" or "analysis".

...lawyers leave a lot to be desired when it comes to logic and analysis."

Well, yeah. Logic and analysis are only related to sophistry, which is, after all, the true profession of laywers.

Stevens (no discernible judicial philosophy, but leaning towards pragmatism); and Souter (no discernible judicial philosophy, but not very pragmatic)

Rehnquist, whose "judicial philosophy" (however defined) was apparently known by Nixon and others, is "discernable" to me.

Ditto Stevens and Souters, the former clearly a living constitutionalist that practices more judicial restraint than some give him credit for (e.g., he supports small dockets, and in cases like Troxell -- involving a right of privacy -- dissented because he supported restraint).

The fact that various justices also vote strategically in various cases doesn't change the fact that they still have true constitutional visions. Stevens, e.g., voted to UPHOLD the criminalization of medical marijuana. Scalia, flag burning.

Their views do matter, if only to determine what direct their pragmaticism (not as Brettian as suggested by this post) goes.

It is telling how the post speaks of "rewriting of the constitution" ... this is a viewpoint of how things went, sure enough, but it is a quite debatable one. Esp. if it is deemed critical -- the Constitution is flexible, and how it is interpreted will change in major ways over time.

And, the means of interpretation (influenced greatly by the political actors who appoint/confirm them) DOES matter. We should be a bit hesistant to take "points" Posner makes in books totally on face value.

it's early ... Justice Scalia (against some assumptions) opposed a law supporting flag burning

"Well, yeah. Logic and analysis are only related to sophistry, which is, after all, the true profession of laywers."

Logic is related to everything -- as W. said: "the world is everything that is the case". Is there a distinction between sophistry and fraud?

I suppose most would say so, but have a little trouble trying to draw a sharp line. Is the difference in sincerity, sophistication, intent, or a combination?

We claim our republic is "democratic" and "representative," but what do such expressions really mean?

That all gets very complicated, and on both sides of the political spectrum we see a mix of fanaticism and opportunism, with every issue distorted through the lens of our political and social machinery.

Logic and analysis are only related to sophistry, which is, after all, the true profession of laywers.

Yeah, but as I told my political theory prof in college, my form of sophistry pays more than his.

Those interested in an application of W. to constitutional interpretation might want to take a look at an article I wrote on this very subject:


I read your paper on SSRN that you cited. Thanks for the reference!

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