At Law & Liberty, Donald Drakeman (Notre Dame): On Constitutional BS. From the introduction:
The recent passing of Princeton Professor Harry Frankfurt has reminded us of what BS means—not caring about the truth. Sure, we realize that BS is part of life. We’re not surprised when used car dealers tell us it’s as good as new, or when politicians pander to voters, offering unfulfillable promises with their fingers crossed. We may be disappointed, but we understand that some professions can have a “convenient” relationship with the concept of true-and-false.
But we should expect better from judges. Trials are exercises in fact-finding. Witnesses are sworn to tell the truth and can suffer severe penalties if they don’t. We expect judges and juries to decide what is true and apply the law in a fair and impartial manner. Most of all, we need to have confidence that our highest court is doing the same.
Is that always the case? Whenever there is a controversial decision, we almost inevitably get an extensive majority opinion along with several concurring and dissenting opinions, each offering an argument for why the Constitution means one thing and not another. Sometimes a justice will explain what the text means or what the Framers intended, while others might disagree or cite the results of scientific or social scientific studies.
We need to ask, in memory of Professor Frankfurt, are we being BS-ed? In other words, are all of these judicial opinions true representations of the facts and the logic that led the justice to make that decision? Or are they just after-the-fact rationales for a preordained conclusion that have been ginned up in hopes that a gullible public will believe that this is really about law, when it is actually just politics? The problem is that we don’t always know.
In the Supreme Court’s famous Everson case, Justice Rutledge wrote a long opinion about Jefferson, Madison, and why the Framers built a First Amendment wall of separation between church and state. Then he sent a private note to a friend explaining that all the history was just a convenient story that he used so that he would not have to disclose his actual reasoning. His real concerns were the urgent need to keep Roman Catholicism from having influence in the schools, and if the Supreme Court didn’t act, these issues would be decided by legislatures that might take a different view.
In the same spirit, a number of prominent law professors have advanced a school of thought saying that the justices should essentially make political decisions but then write their opinions as if the Constitution’s meaning led straight to that conclusion—when it’s really the other way around. Get the policy outcome you want, but don’t tell anyone you’re just making it up. Sugarcoat the decision with legal-sounding language that will camouflage what is really happening.
And from later on:
An oft-cited law review article by Cass Sunstein is titled, “There is Nothing that Interpretation Just Is.” That’s only true if we assume that whatever judges do when they are talking about the Constitution is an act of interpretation. But since we know that a certain amount of covert consequentialism is going on, and that prominent legal scholars and teachers are encouraging it, we need to distinguish between whatever the Supreme Court says when it makes decisions and the formal act of constitutional interpretation.
Interpretation has had a well-known, stable meaning in Western legal history for over 1,000 years. It involves discerning and applying the intention of the lawmaker, as manifested in the language of the text, to the facts of the case at hand. To be sure, lawyers and judges can have good faith arguments over what the language means, what the lawmaker intended, and how to apply old laws to new circumstances.
Nevertheless, for the last millennium or so, the interpretive bottom line has always been that the policy decision is not made by judges, but by the lawmaker. If a majority of the Supreme Court thinks there should be a different outcome, they can write their elected representatives and suggest a constitutional amendment, just like any other group of concerned citizens.
So, what’s really going on is that, in some cases, the Court hasn’t really interpreted the Constitution; it has simply made federal common law. Like many courts throughout history, it has made decisions that didn’t derive from an act of interpretation as that word has been defined by the authors of the great legal commentaries, including Coke and Blackstone, Constitutional Framer and Justice James Wilson, Justice and Harvard Law Professor Joseph Story, and many others.
Agreed. It may be the case that there is nothing that interpretation just is, in the sense that there are a range of theories about how to identify original meaning. But there are some things that interpretation just isn't.
Posted at 6:07 AM