Orin Kerr makes a valid point in this post,* in distinguishing between those who look to the cases to define what the law is, and those who look primarily to the Constitution’s text as the law, and only secondarily at the cases. The former he calls the Lawyer, and the latter, the Theorist. I’d dispute this terminology, but let’s accept it for now. What I’d like to do is to defend the Theorist. Not only is his approach more obviously lawyerly—approaching law in a more logical fashion than the Lawyer purports to do—but in fact, it is far more objectively descriptive than Kerr acknowledges. It is the Lawyer, and not the Theorist, who is actually driven by subjective preferences.
In Kerr’s dialogue, the Lawyer looks at the cases as definitive of the law—that is, the cases actually constitute the meaning of the Constitution; there is no gap between what the law is and what the judges say the law is. Proposition X is unconstitutional if, only if, and to the extent that, the cases say so. That’s why the lawyer uses the phrase “you’re just saying that you think Law X should be unconstitutional,” a phrase that has no meaning in the Theorist’s vocabulary.
The Theorist, meanwhile, looks to the written language of the Constitution first, keeps in mind that the judges are (and have admitted they are) fallible, and if he believes the cases contradict the Constitution, or improperly interpret it, then he is prepared to argue that the cases are wrongly decided. He sees his role as essentially diagnostic.
This is not possible for the Lawyer. Since the Lawyer sees the cases as constituting the meaning of the law, it is not possible for a case to be wrongly decided. The cases simply are the law, and they are the law simply because they are decided by courts. A case is not correct because it accurately interprets the written language; on the contrary, the Lawyer believes that the case accurately interprets the written language because it is a case. To say that the Constitution means such-and-such and that the case accurately or inaccurately reaches a conclusion consistent with or inconsistent with such-and-such would be Theory, which the Lawyer does not engage in. And that must mean that no case can ever be wrongly decided. The Lawyer must believe that, say, Dred Scott, or Plessy, or Kelo, or Korematsu, or even (gasp!) Lochner were all rightly decided, because they were decisions of the highest court in the land, and therefore they simply are what the Constitution means.
As I’ve pointed out before, courts do not see themselves in this light; indeed, in Lawrence v. Texas, the Supreme Court explicitly rejected this view. And since the Lawyer cannot disagree with the cases, the Lawyer must himself also reject this view—which catches him in the logical contradiction known as the Cretan paradox.
Moreover, the Constitution does not take such a position. It says, for example, that
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Notice some things about this provision. First, it refers to this Constitution—not the cases interpreting it, not any other Constitution, but this Constitution, implying that this Constitution is a specific, objective, identifiable thing with an identity and a nature. Second, only those laws that are made in pursuance of this Constitution are supreme law; implying that those laws not made in pursuance of this Constitution are not supreme law, even if someone wearing a black robe claims otherwise. Third, the judges are bound by oath not only to support “this Constitution,” but to do so notwithstanding laws that are “contrary” to it—which not only implies that laws might be contrary to it, but that they might be contrary to it prior to a judge saying so. In other words, the clash, if there is one, between a law and the Constitution exists prior to adjudication. Yet these propositions are ones that Kerr ascribes to the Theorist, not to the Lawyer. The most obvious interpretation of this clause is that the Constitution itself purports to be just what the Theorist thinks it is—i.e., a thing with a meaning, which precedents might interpret rightly or wrongly.
Regular Americans, of course, also strongly take the Theorist’s view: that the Constitution means something (whatever that something is) over and above what the courts say it means. The Constitution, they believe, has a meaning with which a court opinion can either consist or conflict, and if an opinion conflicts with that meaning, the opinion is wrong. To Kerr’s Lawyer, of course, this common sense approach appears improperly normative (and since Kerr believes all normative claims are purely subjective preferences with no foundation in logic or reality, such claims are therefore basically emotional impulses).
Here’s another irony. The Lawyer sees himself as dispassionately objective—all he’s doing is being scientific and descriptive, while he accuses the Theorist of improperly “making a normative claim and presenting it as a descriptive claim.” In fact, the exact reverse is true: it is the Lawyer, and not the Theorist who does this. Here’s why. The Theorist believes that there is an objective meaning to the Constitutional text, and that a law or precedent inconsistent with that meaning is unconstitutional—whether he wants it that way or not. (For example, the Theorist would have to say that the Income Tax is constitutional, even if he personally detests the income tax.) His approach is descriptive, not prescriptive. He is not making a claim about how the Constitutional text ought to be; he’s making a claim about what the Constitution actually says, and pointing out that cases inconsistent with the objective fact of the constitutional language are objectively wrong. He’s saying, in essence, the Constitution means X, and cases that say not-X are simply not correct interpretations of the Constitution. One need not agree with X to see that this claim is not a normative, but a descriptive, analysis. The Theorist would never use the phrase “you think X should be unconstitutional,” because in his view, unconstitutionality is entirely descriptive, not normative—a thing is either constitutional or unconstitutional based on the text.
The Lawyer, on the other hand, cannot, as the Theorist does, draw a clear line between subjective preferences and constitutional meaning.** In his view, the cases simply are the Constitution, and to disagree with the cases is really basically senseless. If you think the cases are wrong, you’re making an “ought” claim. This is another way of saying that the Constitution has no objective meaning—there are only the cases. He uses the phrase “should be unconstitutional” because he believes that any claim of unconstitutionality outside existing precedent is inherently normative. He says “you’re just saying that you think Law X should be unconstitutional based on your personal theory of how the Constitution should be read.” This is not an accurate description of what the Theorist is doing—he’s engaged in diagnosis. But the Lawyer makes this accusation because he sees the precedents as definitive; he has abandoned the possibility that Constitutional text can mean something outside of what the cases say. And because he breaks down the wall between what the Constitution means and what the cases mean, he cannot actually point an accusatory finger at anyone for wrongly applying subjective preferences to constitutional interpretation. He would be essentially saying, “the Constitution has no meaning in itself which can be the benchmark for criticizing the cases; constitutional interpretations are basically subjective value preferences—but you shouldn’t apply subjective value preferences when interpreting the Constitution!”—an inherently contradictory position. Only by acknowledging that the Constitution has a meaning over and above what the cases say about it can the Lawyer have any footing or Archimedian point for criticizing another person’s constitutional interpretation.
Of course, the cases themselves do not solely look to precedent, since no case is entirely dictated by existing precedent. Instead, court opinions purport to analyze constitutional text and to interpret that text correctly—meaning, accurately reflecting or applying the actual meaning of that text. Since this is just what the Theorist claims to be doing, and what the Lawyer thinks is foolhardy, the Lawyer must also see the opinions as merely the personal views of individual judges, deriving their truth value solely from the fact that judges wrote them. Since the Lawyer believes that accusations of unconstitutionality are at bottom subjective interpretations of what the Constitution “ought” to mean, he must, if he’s consistent, say that the judges are doing the same thing. And he cannot see anything wrong with this—he has no basis for saying a court opinion is wrong. So when he accepts those decisions as being definitive law, it is he, and not the Theorist, who is actually attaching legal effect to what on his own premises are merely subjective personal interpretations of the Constitution. In short, it is he, not the Theorist, who is putting legal force into the hands of personal value preferences!
In short, the Lawyer hides normative premises from himself that the Theorist does not hide. The Lawyer points to a legal opinion and says “this is what the Constitution is, because a court says so.” The Theorist points at the legal opinion and says “this is what this court thinks the Constitution is.” The difference between these two positions is the Lawyer’s smuggled premise that the place we ought to look for Constitutional meaning is the legal opinions. Why? As I asked earlier, why not look at a fortune cookie, or a crystal ball, or the pronouncements of a would-be dictator, for the Constitution’s meaning? The Lawyer cannot explain why he looks to a court for his constitutional meaning (or why he looks to the majority opinion instead of the dissent) except by admitting to a hitherto unacknowledged normative premise: that we ought to do just that. The Theorist does not make this mistake. He says that the Constitution means such-and-such and that an opinion is at best an accurate description or application of or inference from such-and-such. He does make normative claims, of course, but he believes that normative claims are appropriate for law, so this is not an inconsistency on his part the way it is for the Lawyer. And it is the Lawyer, not the Theorist, who consciously puts legal effect into the hands of what he believes are totally subjective, unaccountable, preferences.
A couple other points.
First, the dispute between the Lawyer and the Theorist appears to be a restatement of the classic Euthyphro dilemma. Is proposition P the law because the courts say so? Or do courts say so because proposition P is law? If the former, then the courts’ say so could just as easily make not-P law, which means that the law is basically arbitrary. (This, I contend, is Kerr’s position.) But if courts say proposition P is law as a consequence, and not a cause, of its being law, then it is not their say-so that gives P its quality as law; its legal effect derives from some other foundations. If so, you and I are just as capable of becoming judges of lawfulness as anyone else. This is my position, the position of the Theorist, and is, at bottom, why my position is called a “natural” law or “natural” rights position; it is basically the same argument as ethical naturalism.
Second, a word about the so-called normative fallacy. I believe (with Philippa Foot, W.D. Falk, and others) that this alleged fallacy is not actually a fallacy. As Foot observed, if you know what a thing with a function is, then you know what a good thing of that sort is—if you know what a hammer is, then you know what a good hammer is. Since court opinions have, or purport to have, a function, then we know what a good court opinion is once we know what a court opinion is. Thus the is-ought gap is bridged. And that means that when we say a court opinion is “wrong” it is not possible to distinguish the normative from the descriptive in the word “wrong.” It is wrong descriptively because it is incorrect—and it is wrong normatively because it ought to be correct in order to be a court opinion worthy of that description.
Finally, I submit that the Theorist’s model of the law is on the whole more useful in general than the Lawyer’s. The Lawyer’s model (1) unduly privileges judicial precedents, and especially present interpretations over past interpretations; (2) cannot account for the existence of dissenting opinions (since a court opinion must be right, on what basis can a justice possibly dissent from the majority?); (3) cannot account for cases in which the Court itself has admitted to erroneous interpretations of the Constitution (as in Lawrence’s acknowledgment that Bowers was wrong when it was decided); (4) cannot account for constitutional language that strongly implies that the Constitution is an entity with a single, accessible meaning, which other laws might contradict; (5) is way outside the historical and philosophical context of the Constitution’s authorship; the Constitution was the product of the Enlightenment, and its authors clearly believed the Constitution meant something about which the cases might be wrong.
The Theorist’s approach to law, by contrast, keeps things in a more sensible proportion. In his view, the Constitution is a written text embodying an agreement of the people of the United States. That text is at times ambiguous or silent or vague, which requires courts to make intelligent efforts at interpreting that text. Such efforts will rely on language, history, political philosophy, and all sorts of extraneous materials. Those cases might at times be wrong (meaning, inaccurate understandings or extrapolations from the meaning) and when they are wrong, it is proper for courts later to overrule them. This model is consistent with constitutional language and context, and with such phenomena as dissenting or overruling. It is simply a better approach overall than the distorted view that the Lawyer gets in his efforts to appear morally neutral.
*-Kerr also throws in some straw men. Positivists enjoy accusing natural rights or objectivist lawyers of “imagin[ing] there were no cases,” and whatnot. Of course, “the Theorist” does no such thing. He simply believes that cases have a proper place in the hierarchy of interpretive tools, and that they are not definitive of legal meaning. Cases are tools, not reality.
**-A good example just occurred to me. In United States v. Butler, Justice Sutherland (a Theorist) said that a court “has only one duty; to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.” He was resoundingly ridiculed by “realist” Lawyers who insisted that courts always apply their own preferences and “make” law in doing so. If they are right and Sutherland wrong, they cannot claim that their approach is less normative, or more dispassionately objective; on the contrary, the Lawyer has always admitted that he is reading his preferences into the law, just as he claims others are doing—he just thinks he does a better job of it. The Theorist, meanwhile, at least attempts what he believes is a purely diagnostic task of laying the article of the Constitution (not the precedents) beside the challenged statute and comparing the two.
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