Tuesday, June 16, 2020

AMA: Questions from Charles Barzun


As a result of a Twitter exchange last week, I have agreed to answer questions from a group of constitutional scholars about my work. Here is the first set of questions from Charles Barzun. More installments will follow.

Charles Barzun: My questions come in the form of two hypotheticals, both of which go to what I see as a central tension in your book [Living Originalism], the nature of which I think will be clear. 

Imagine that two justices, A and B, are both put on the Court within months of each other by the same President.  Assume the selection and nomination process worked in precisely the way you describe in  your book and that it followed a period of intense of broad-based social activism, channeled through party politics, in support of a fairly concrete constitutional agenda (which of course both justices denied any awareness of during the nomination hearings).   Once on the Court, both Justices practice the “method of text and principles,” but they do so in different ways and for different reasons.  In the cases relevant to the party’s constitutional agenda, Justice A carefully monitors the media (and social media)  and tries to figure out what results the President, the party, and the activists want in the cases before her.  Justice B, meanwhile, ignores the media and tries to read the briefs without being predisposed to a particular outcome.  The result is that over  the next several years, Justice A delivers results that make the party and activists happy nearly every time, whereas Justice B does so only some of the time.  Other times, she reaches results frustrate the constitutional agenda of the political movement that  resulted in her being placed on the Court.

Who is a better Justice, A or B?  Why? (Note that this is not a question about interpretive method; both justices apply the method of text and principle).

JB: According to your hypothetical, both justices "apply the method of text and principle." By this, I assume you mean that both justify their decisions to the public in terms of the original public meaning of the text and its choice of rules, standards, principles, and silences; and both use familiar modalities of argument to offer constructions that implement the text in the context of decision before them. In other words, you are equating "interpretive method" with abiding by certain techniques of public justification. You are not saying that they both actually interpret the Constitution or attempt to be guided by it in the same way.

I mention this distinction because, as you describe them, there is an important difference between A and B. (I'll call them Alice and Beth from now on). Alice produces decisions that appear to be based on reasoning from legal materials but are not actually based on reasoning from legal materials. Instead, they are based on an assessment of what particular constituencies want. For Alice, law and legal reasoning appear to be mostly epiphenomenal. They do matter in a limited sense, because I assume that in your hypothetical Alice always attempts to write opinions (or has her clerks write opinions) that look like conventional legal opinions and engage in law-talk. (In cases where Alice votes but does not write an opinion, law and legal reasoning matter even less).

Nevertheless, Alice appears to lack an attitude of fidelity to the law and to the Constitution, which, I have argued, is a necessary requirement for constitutional interpretation. That attitude is necessary to constitutional interpretation even before we begin to argue about which theory of interpretation is the best one. To interpret the constitution faithfully means to put yourself "on the side" of the Constitution, and to attempt to further it. Alice does not seem to have this attitude or purpose in deciding cases. So there is a sense in which Alice is not really trying to interpret the Constitution, even if Alice uses a particular style of public justification for the results reached.

By contrast, Beth, under your description, "reads the briefs." I am not entirely sure what you mean by this. Alice could read the briefs too, but it would make no difference to Alice's decisions. I assume that you what mean when you say that Beth "reads the briefs" is that Beth attempts in good faith to work within the existing body of legal materials and reason using them. Beth probably has beliefs about what is just and unjust, good or bad, for society; it's likely that these beliefs affect how Beth decides cases. And Beth may consider other sources-- for example, science, history, and other facts about the world -- in the course of reaching decisions. But law is not irrelevant or epiphenomenal for Beth in the same way it is for Alice. Beth reasons through law and not in spite of it. Again, you do not specify whether Beth seeks to put herself on the side of the Constitution and further it. But if Beth did so, Beth would be attempting to be faithful to the Constitution and the law.

Now you ask: who is the better Justice?  I need to ask: better at what? There are many ways to evaluate Justices.

If the question is which judge is closer to the appropriate interpretive attitude necessary for faithful interpretation of the Constitution, the answer is Beth. But it is not because of the results that Beth produces or fails to produce. Beth could be a terrible lawyer and her arguments could be positively stupid. But she would be more faithful to the Constitution than Alice in the sense of having the appropriate attitude.

Similarly, Alice is less good than Beth by this criterion, but that is not because Alice is good at guessing what constituents want. Even if Alice was not very good at this, and regularly frustrated the constituencies that supported her appointment, Alice would still not have the right attitude of interpretive fidelity.

If a Justice is considered better because he or she produces more just results over the course of his or her career, there is not enough information in the question to make a decision.

You might be asking which Justice has a greater chance of being regarded as a great Justice. For example, John Marshall and Earl Warren are generally thought of as great Justices, but not John Catron or Rufus Peckham. I have written elsewhere that the reason why history views Justices as great or not great has little to do with their technique, their theories about interpretation, or their devotion to interpretive fidelity. Rather, it concerns how useful they are to later generations, and whether they guess right about what the future expects from them. But this criterion is orthogonal to the question of fidelity to law or the Constitution; and under this criterion (but not the one I mentioned above), the jury is still out on who will turn out to be the better Justice.

Charles Barzun: Now I realize that you are offering a system-level analysis, not one about what individuals should do.  So here’s another hypothetical:

You point out that our constitutional culture is the product of people’s arguments about good judging and proper interpretive method, etc.  So let’s imagine that your colleague Bruce Ackerman’s constitutional  theory eventually becomes conventional wisdom among law professors, lawyers, and judges.  The result is that in 20 years or so, it is no longer “off the wall” to treat, e.g., the New Deal decisions and the Civil Rights Act of 1964 as sources of law of comparable  constitutional stature as actual constitutional amendments.  To the contrary, it is taken for granted.  In other words, the Constitutional canon has been considerably expanded and becomes the constitutional backdrop through which social movements and party  politics channel their constitutional agendas.  So the debates continue, but there are no more originalists, skyscraper, framework, or otherwise.

Has anything gone wrong with this constitutional culture?  On what basis, if any, would you criticize it?

JB: It is not clear that there would be no more originalists in this culture. Bruce Ackerman's theory is an originalist theory, as he himself has said on more than one occasion. It just recognizes a different way of adding new content to the Constitution. Ackerman holds that interpretation requires interpretive synthesis of successive additions to the Constitution. One must endeavor to be faithful to the principles of each successive constitutional moment or constitutional solution. His theory argues, in short, for fidelity to original legal principles. This is a form of originalism, just not my version.

I think you are asking what makes a constitutional culture better or worse in the United States. Under what conditions would we say that the constitutional culture had become unhealthy or had changed for the worse? This is the focus of much of the work I've done after writing Living Originalism. Today I would argue that American constitutional culture is better when it better preserves government that is both liberal and republican and makes it easier for citizens to achieve the redemption of the Constitution's promises of liberty and equality over time. Conversely, a constitutional culture is worse when it allows liberal republican government to decay and rot and prevents or undermines the possibility of redemption of the Constitution's promises of liberty and equality.

These criteria are criteria of political theory. They assume that the U.S. Constitution is the constitution of a certain kind of state-- that is, of a liberal democratic republic. These criteria are orthogonal to many contemporary debates about constitutional interpretation and interpretive theory.

It is possible that the culture you describe in your hypothetical might be a healthier constitutional culture than the one we currently have. But it also might be worse. We don't have enough information about what really matters to know the answer. A particular account of the constitutional canon might win out and become widely accepted by law professors, lawyers, and judges. But there also might be a racist demagogue in the White House, economic inequality might skyrocket, rule of law norms might have substantially eroded, government might be for sale to the highest bidder, and public trust in institutions might be very low. People might despair about whether their system of government can ever be redeemed. This would be a constitutional culture suffering from constitutional rot. From this perspective, the question of what legal elites think is in the constitutional canon seems less important. It is for this reason that in recent years I have increasingly focused on questions of constitutional dysfunction, crisis, and rot.

There is a way, however, in which Ackerman's theory of constitutional moments does intersect with the questions I am interested in. Forget his theory of constitutional moments for a second and focus instead on the republican political theory that motivates it. Ackerman argues that a sign of a healthy well-working republic is the ability of Americans to rethink the premises of their Constitution through sustained political mobilization and deliberation. From this perspective, what is important is not the content of the constitutional canon but whether people are able, at certain key moments, to take accountability for their Constitution instead of simply passively accepting it. In the words of the Federalist, the question is whether Americans "are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force." Whether or not you buy his account of constitutional moments, his focus on what makes American constitutional culture healthy and vibrant is independently important.

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