Monday, June 04, 2012

The "No Pain, No Gain" Theory of Constitutional Theorizing

Mark Tushnet

The Essay to which I referred in my last post also provoked some thoughts about theorizing about constitutional theory. The Essay shares a common characteristic with many works in constitutional theory: It offers an account of a general issue that produces outcomes with respect to specific questions that one is quite confident are the author's antecedent -- that is, pre-theorizing -- preferred outcomes. This characteristic is often criticized as indicating that the theorizing is doing no work, and that any true theory has to offer pain with the gain. The usual response to the "no pain, no gain" critique is for the author to serve up some preferred result and say, Well, that one won't be produced by the theory I'm articulating here.

I think there's more to be said about the "no pain, no gain" critique. Basically, I'm not sure that it's right. Here's how it could work in, I think, a defensible way: You start out with some fixed points, that any general theory worth its salt (from your point of view) has to generate. You develop a theory that does indeed generate those results. Then you see what that theory has to say about issues that you didn't take into account when developing the theory. Suppose the theory generates a result that seems troubling. So, you tinker with the theory so that, as revised, it generates all and only the results you think appropriate. This is a "no pain" theory, but it's not clear to me what's wrong with theorizing in that mode. (If you wanted to be fancy, you could call the resulting theory a reflective equilibrium.) And, of course, you might end up saying that, as applied to some previously unconsidered issue, the theory generates a result you don't like, but you can't figure out a way to adjust the theory to generate the correct result on that issue, and so, all things considered, you stick with the unmodified theory.

There's one theoretical approach that, one might think, is not readiy susceptible to this back-and-forth, formulation-and-revision approach: Originalism. The reason is that not only do you start with fixed results, but the materials you use to construct the theory are themselves fixed -- untinkerable-with, so to speak. But, it turns out, not so. Consider Michael McConnell on Brown v. Board of Education (subscription required) or Steve Calabresi on gender discrimination. They take certain results as fixed, and then work with the historical materials to show that those results are compatible with originalism as they describe it. The key move here is to chose or devise a version of originalism with which the fixed points are compatible. Of course, when you do that you're likely to run into intra-originalist controversies, as Ed Whelan's responses to Calabresi indicate. But, structurally, these are works in the "no pain, no gain" mold, and none the worse for being that (as such -- you might not like the general theory they offer, but you shouldn't object to the work on "no pain, no gain" grounds).

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