Prof. Kerr, in response to one of my VC posts, asked to what degree my understanding of the Constitution is influenced by my policy preferences. The answer, obviously, is that it they do have an effect, but I am not in a position to judge what effect. Of course, this question is usually asked in an accusatory way, to imply that a person’s constitutional views are simply a function of his views of proper policy. I think this is superficial and silly.
The policy views and the constitutional views of a person (who thinks about such matters) have a much more complicated relationship: they interact with each other. What one thinks is a good policy will be influenced by his view of whether it’s constitutional or not, just as much, if not moreso, than the reverse. That does not, of course, mean either (1) that there is no fact of the matter when we ask what the Constitution’s language actually means, or (2) that the relationship is 1:1, so that one’s constitutional views simply parrot one’s policy views.
For example, I think the line-item veto is an excellent idea. Nevertheless, I entirely agree with the Supreme Court’s decision in Clinton v. New York, that it is unconstitutional. Inversely, I believe that copyrights and patents are very questionable policy, but I cannot deny that they are constitutional. I think the income tax is a very bad idea, but I certainly don’t deny it’s constitutional. I favor gay marriage, but was unpersuaded by the California Supreme Court’s decision in the Marriage Cases that the civil union system was unconstitutional. I think it’s a bad idea that senators are directly elected by the people instead of state legislatures, but I don’t deny that the Constitution requires this. [A better example: I despise the idea of the military draft, but I cannot say that it is unconstitutional.] There may be people whose views of the Constitution’s meaning merely parallel their policy views, but I am not such a person.
I do believe, however, that the Constitution has a normative direction—that, in Frederick Douglass’ words, when interpreted properly, it is a glorious liberty document. The Constitution was written specifically to preserve the blessings of liberty, by people whose commitment to the classical liberal principles of natural rights is about as well established as anything could be, and I believe that the Constitution is consistent with those principles. This is why I love and study the Constitution. Were it not such a document, I would (hope I would have the courage to) denounce it as an evil document, just as I denounce, say, the Constitution of the Confederacy as an evil document. My normative evaluation will, of course, influence my interpretation of the language in either document to some non-zero degree, but I am capable of using the legal analytical tools at my disposal to arrive at as good an objective understanding as possible; to say that, for example, the line item veto was constitutional under the Confederate Constitution—regardless of my normative views.
I would not have chosen to spend decades studying the Constitution if I did not admire and appreciate it and believe it to be a good thing. So, in that sense, I guess just about my entire knowledge of the Constitution is influenced by my views of what is good and right.
It is, of course, a silly game to ask to what degree one’s opinions are influenced by one’s interests. The question is whether those opinions are tenable or not, since (1) everyone can play the tu quoque game—and (2) the existence of a relationship between one’s policy views and one’s constitutional views is not necessarily a bad thing. In science, one often finds that research on the effects of some product is primarily funded by the companies that make that product; that doesn’t necessarily undermine the research—indeed, who else is going to spend so much money for research on that? For the same reason, the fact that one has a vested interest of some sort in a particular interpretation of the Constitution is very far from being a dispositive argument against that interpretation.
So to the question of whether my policy views influence my constitutional views, my response is to shrug and say, “Yeah, I suppose. So what?”
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