The Supreme Court will soon release its decision on ObamaCare. I have no dog in this fight–I have no opinion as to whether it is constitutional or not. (Actually, I think the law is inconsistent, and so I think there is a compelling legal case for both sides.)
From my perspective as an outsider, most of the field of constitutional law seems intellectually corrupt. It seems that almost everybody does the following:
1. Start with a political philosophy–a view of what you want the government to be able to do and what you want to the government to to be forbidden from doing.
2. Take the Constitution as a given.
3. Reverse engineer a theory of constitutional interpretation such that it turns out–happily!–that the Constitution forbids what you want it to forbid and allows what you want it to allow.
When I read academic writing by constitutional legal theorists, it seems like basically everyone (conservatives, liberals, libertarians) does this. Isn’t that bizarre? For example, why don’t more libertarian legal theorists just say, “Yes, the Constitution allows X, even though X ought to be forbidden, and so to that extent, the Constitution is bad.” Why don’t we see more left-liberals saying, “A just society would allow X, but, alas, our Constitution forbids X and is to that extent a bad Constitution.” We do sometimes see this, but for the most part, people of every ideology tend to argue that the Constitution allows or forbids exactly what they would want it to allow or forbid. Isn’t the most plausible explanation of this that most legal theorists are intellectually corrupt? (They may be sincere, but they are suffering from terrible confirmation bias.)
When it comes to arguing in front the Supreme Court, we can make some sense of this practice. In that case, the stuff about constitutional interpretation is just a facade, and what’s really going on is that different groups are fighting to impose their political philosophy upon others. But academic legal theory is supposed to aim at truth. Legal theorists are not–or should not be–fighting political battles.
Since I am a legal positivist and a legal realist, I do not assume that the Constitution is good or just. I do not assume that something has to be good for it to be the law. I regard laws as sociological phenomena, and whether a law is good or just is a contingent fact. Thus, I am perfectly happy, in some sense, for it to turn out that the Constitution allows things I would forbid and forbids things I would allow. I feel no impulse to try to interpret the Constitution so that it requires–how happily!–neoclassical liberalism.
Imagine if people interpreted Kant’s Metaphysics of Morals the way they interpret the American Constitution. People would start with their favored view of ethics. They would then reverse engineer a theory of textual interpretation such that Kant ends up, according to that theory, endorsing their pre-existing favored view of ethics. If a scholar did that, we’d think that scholar was to that extent intellectually corrupt, even if she were sincere. Yet this is pretty much what most academic constitutional legal theorists do.
The only real defense of this practice I’ve seen is one that starts by arguing that the law is supposed to be normative and authoritative. However–and I won’t argue for this here–the case for legal positivism seems so strong that I don’t see this as plausible.