Thursday, October 31, 2019

Academic Constitutional Theory and Judicial Constitutional Practice

Mark Tushnet

Some conversations while I've been traveling around the world provoke the following thoughts. Academic constitutional theory produces important distinctions that are difficult for those not embedded in the discourse to understand. The ones that have been apparent in my conversations involve developments in originalist theory. As things have shaken out, the distinction between interpretation and construction has taken a quite large role. Within the domain of construction, we can distinguish between construction via executive and legislative practice (which seems to me to have been the first account) and construction via judicial practice as well (which seems to me to be coming to be the prevailing account). Without commenting on those distinctions, I simply observe that communicating to outsiders their importance in making originalist theory coherent is, for all practical purposes, impossible. 

And, judges are outsiders in the relevant sense. (So are conservative op ed writers/public intellectuals.) Academic originalism (or originalisms, as I prefer to say) doesn't correspond to what judges say and do when they call themselves and their opinions originalist. Sure, judges can sometimes "decorate" their opinions with citations to academic originalists (or indeed academic theorists of any other stripe). So can op ed writers. ("Decorate" was the word Abe Fortas used when presenting his law clerks with draft opinions lacking citations. My view, for what it's worth, is that Fortas was articulating in a quite concise way a deep Legal Realist jurisprudence.) Judicial practice, though, is linked only nominally to academic originalism(s). We can see this in the very opinions that say that they rely on constitutionally relevant executive and legislative practices. This isn't a novel observation: Eric Segall has been making it for years.

So what is going on when judges and op ed writers call themselves originalists. They are virtue-signaling, telling people which party (these days, literally) they belong to. In my forthcoming book (May 2020), I call originalism(s) a shibboleth used to test one's loyalties. I know, I know: "Living Originalism" and all that. My view is that "Living Originalism" (the book itself) should be read as high irony -- akin to Swift's "Modest Proposal."

As Segall has emphasized, judges are all originalists now, just as they are all textualists now (and as they are all living constitutionalists now) -- and that tells us nothing at all about what judges actually do, or about the justifications their decisions rest upon, or, as far as I call tell, anything interesting about judicial practice. (Academic work on originalism can have academic virtues, though -- like all other forms of legal scholarship -- it doesn't always.)

For what it's worth, I think that constitutional scholars should spend less time worrying about originalisms and more time thinking about why (if at all) the "umpire" metaphor is wrong beyond the superficial observation that umpires actually have some discretion, as we saw in Game Six. The Chief Justice's metaphor gets what it needs if there are significant limits on discretion. Deep-dyed Legal Realists like me think that there aren't. For me, these days, the interesting interlocutors are the liberals/progressives who believe, with the Chief Justice, that there are, and that the Chief Justice is somehow wrong nonetheless.

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