Wednesday, March 14, 2012

Is Constitutional Theory Necessary? -- Interpretation (Part I of Two)

Ken Kersch

In his post reflecting on Judge Wilkinson’s argument against “cosmic constitutional theory,” Mark Graber insists that, Wilkinson’s protestations notwithstanding, the Judge himself -- inevitably -- can’t help but advance his own brand of constitutional theory. This is because judges write opinions justifying their decisions. In those opinions, judges justify their decision to interpret a legal text in a certain way, yielding a particular result (constitutional interpretation). Along the way, moreover, they sometimes articulate a more general theory of judicial function: that is, they make arguments about why it is the prerogative of the judiciary, as an institution with particular powers, responsibilities, and competences – as opposed to other institutions (or non-institutionalized wellsprings of political power) – to make (or not make) this particular decision. Graber argues that Wilkinson’s new book reflects “the common tendency to conflate theories about constitutional interpretation and theories of judicial function in constitutional cases.” But, Graber explains, “The two are different. A theory of constitutional interpretation is a theory about what the constitution means. A theory of judicial function is a theory about judicial power.”

I think Graber’s distinction in this regard is important, and right. But I also think there it gives us a lot more leverage on the question of whether constitutional theory is necessary than Graber subsequently provides.

Can judges do without theories of interpretation? Probably not. In my law classes, I commonly ask the students whether it is necessary for judges to write opinions in the cases they decide: could they simply say “A wins, B loses”? Why or why not? I stump hard – Socratically – for the view that no opinion is necessary. But then, if we agree that the judge needs to justify him or herself somehow (To whom? To what effect?), how is he or she to do that? Are there better or worse ways of doing so? Does context matter, or is there some platonic best way of justifying a legal decision? Is this the same as the best way of making a judicial decision?

Graber is right in insisting that, in arriving at a constitutional decision, the judge, inevitably (whether self-consciously or not, whether in a cosmic key or not, or whether in a way more or less consistent with the approach he or she has employed in other decisions) interprets a legal text. As such, all judges – including Judge Wilkinson, the professed cosmic theory skeptic – do constitutional theory. ‘I interpret,” the judicial dictum would have it, “therefore I theorize.”

This seems right. But I can’t help feel that it misses Wilkinson’s point. Judge Wilkinson seems more troubled by the seeming endless quest for the holy grail of the single best theory of constitutional interpretation (leaving, for the moment, theories of judicial function aside). Wilkinson spends little time setting out his own views, as opposed to critiquing those of others. But he seems to have an obvious soft-spot for more pluralist approaches. I would think, for instance, that Wilkinson would like the approach to the question taken in Philip Bobbitt’s book Constitutional Fate: A Theory of the Constitution (Oxford, 1984), which sets out, not a single “best” method, but surveys a variety of valuable and defensible interpretative approaches, all of which are held as arrows in a judge’s quiver. It is interesting that Bobbitt’s very pluralism seems to have dealt him out of this conversation, as in effect having no “theory.” (Wilkinson ignores Bobbitt too, of course, thus implicitly sharing the assumption of those he purports to be writing against). Since Bobbitt is not stumping for any single best method of interpreting the Constitution, he is left with no one to argue with in this hot-house, point-counterpoint, field, of which Wilkinson, in spite of himself, remains a dues-paying member.

Yes, all judges interpret, and thus apply interpretative theories. But there is a difference between monist interpretative theories – which aspire to universalism and consistency – and pluralist interpretive approaches. I think what Wilkinson means to do is advocate pluralism. This is, I think, what he means by being against “cosmic constitutional theory.” But his book, unfortunately, is far from clear on this point.

I will take up the question of function in my next post.

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