Academic Constitutional Legal Theory is Intellectually Corrupt

By On June 25, 2012 · 73 Comments · In Current Events

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.

 
  • Daniel Kuehn

    One reason could be that you are mixing up #3 and #1. It may be that people’s political philosophy is formed by their understanding of the previous ideas of great men and women, and by empirical observation that the Constitution works well and therefore offers a sound basis for a political philosophy. Then, given what they think the most appropriate way of reading the Constitution is, you’re going to see a distinct political philosophy emerge.

    If you do #3 in a way that would get a libertarian result and you think the Constitution has done a decent job, you’re likely, after many iterations of doing legal scholarship, to come out with a fairly libertarian philosophy. Same with any other position.

    Surely there are cases that work in both directions, I’m not suggesting that this is not the case. But the chicken-and-egg problems here seem much more complex than your ordering of these steps would imply.

    • http://lippard.blogspot.com/ Jim Lippard

      Indeed–how much of #3 is just the principle of charity in interpretation of meaning?

  • Adam Kamp

    As a lawyer and sometime libertarian, I agree that this tendency among–not just academics, but EVERYONE in law–is absolutely infuriating. I’ve railed about this before in other forums; I may not like the health care mandate, but I think it’s absolutely necessary and proper to the overall bill. But very very few other scholars can think like that. (I think Orin Kerr, over on the Volokh Conspiracy, is one of the few who doesn’t assume that the Constitution is built to protect his favorite political preferences.)

    I wonder how much of this is the nature of law, however. In law school we’re largely trained to be advocates: to take a given set of facts and to use them to show that the law should be in our favor. We’re taught to make creative arguments, to find alternatives, and basically never to admit defeat unless a given stance is truly “frivolous.” Is it any wonder that lawyers then assume that the Constitution is on their side?

    • adrianratnapala

      Whether the mandate is necessary or proper to the overall bill says nothing whatever about congress’ constitutional power to impose it.

      In terms of political economy, I think mandates a perfectly fine for this kind of thing, but I can’t see how the United States has the power to impose them. Though I can see how individual states, or federations who’s constitutions happen to be different can have that power.

      Then again, I am not an academic constitutional lawyer.

      • Adam Kamp

        If the overall bill is a regulation of commerce (which it is, especially under the modern criteria), then the mandate’s… er, necessity and propriety is ABSOLUTELY relevant to Congress’ power to impose it.

        For my money, it’s a violation of freedom of contract, but no one is arguing that because it’s dead-letter law and has been for seventy years.

  • http://www.facebook.com/profile.php?id=720322378 Rajiv Shah

    I think Legal Positivism provides the answer to your problem. As Hart argued every legal rule has a core and a penumbra. In the core the rule determines the outcome but in the penumbra it does not. Penumbral cases then have to be decided based on extra legal factors (including political philosophy).

    The US Constitution is written in rather vague and open ended terms. This means the penumbra is quite big and so most constitutional arguments are in fact political arguments put in legal package.

  • Aeon Skoble

    I think you’re overstating the case a little. “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.”” I see this all the time. I don’t know any libertarians who never make this move. But also, the fact that everyone reads his or her own political views into the Constitution doesn’t mean that they’re all equally correct. Some interpretations are more plausible than others. Do you really think the point of the commerce clause is to stop a guy from growing wheat for his own consumption?

  • http://www.facebook.com/fernando.teson Fernando Roberto Tesón

    Good post, Jason, exactly right. My only observation is that left-liberals do the same thing with Kant’s Doctrine of Right, as Bas van de Bossen and I will try to show in an article we’re writing.

    • http://www.facebook.com/bas.v.vossen Bas Van Der Vossen

      With apologies for the (shameless) self-promotion, two points: (a) Fernando should learn how to spell his co-author’s name correctly ;) and (b) it seems to me that the “normativity” of law, or law’s “claim to authority” will not establish what Jason is worried about: http://ojls.oxfordjournals.org/content/31/3/481.abstract

  • http://www.facebook.com/people/Roderick-Tracy-Long/1037941173 Roderick Tracy Long

    “Isn’t the most plausible explanation of this that most legal theorists are intellectually corrupt?”

    Surely there’s another obvious explanation: the Constitution contains contested terms, and the best interpretation of those terms is quite appropriately inseparable from one’s pre-existing moral views. For example, the 5th Amendment calls for “just compensation.” It doesn’t call for “what we, the framers, currently consider just compensation.” It calls for just compensation, meaning whatever compensation is actually just. So of course you can’t settle what it calls for without bringing in claims about what’s actually just.

    • adrianratnapala

      Yep, but it can be taken too far.

      The wonderful thing about the US constitution is its brevity, and it’s vagueness (I suspect the latter is the cause of the former). My favourite is the 8th Amendment which says that bail, fines and punishment should not be excessive — but as to what is excessive the the silence is deafening.

      And I mean it is really loud. This is an open invitation, shouted from the rooftops, to make it up as you go along. But when judges decide that growing food in your own garden for your own consumption was interstate commerce; that seems like they were inviting themselves.

      • http://www.facebook.com/people/Roderick-Tracy-Long/1037941173 Roderick Tracy Long

        Agreed. “Interstate commerce” is not a contested concept the way that “excessive bail,” “cruel and unusual punishment,” “just compensation,” or “due process of law” is. Or it wouldn’t be, if judges didn’t have an incentive to misinterpret it.

        This — http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm — by John Hasnas is a useful piece, though as a Spoonerite — http://praxeology.net/Spooner-OB.doc — I can’t accept all of it.

      • RickDiMare

        “But when judges decide that growing food in your own garden for your own consumption was interstate commerce; . . . ”

        The case you’re referring to is Wickard v. Filburn (1942) and is a good example of how Commerce Clause legislation is misunderstood. Most people characterize the case the way you described it, which makes the Constitution look ridiculous, but upon closer examination of the facts in the case, farmer Filburn **voluntarily** registered with the Department of Argriculture to belong to a price support scheme under the Agriculture Adjustment Act of 1938 so he could get a higher price for his crops, on the condition that he would plant crops according to the Department’s requirements. He was authorized to plant about 11 acres of wheat, but planted 23 instead, claiming that the extra 12 acres was planted for his own personal consumption on the farm, and therefore should be exempt from penalty or tax. Yeah, right.

        • Ak Mike

          Rick, the common characterization of the case is nearly correct. If the court had decided that Filburn was lying about his use of the wheat, then what you say would be relevant. But the court decided pretty clearly that any activity, that was itself not commerce, that had even an indirect effect on commerce, could be regulated as though it were interstate commerce. Since essentially all activity of any kind can be so characterized, the understanding that this decision eliminated all restrictions on the federal government’s regulation of any activity is correct.

          • RickDiMare

            As I review the final sentence of my post, it does appear that farmer Filburn’s lying was at issue, but the main thing I was trying to convey was that farmer Filburn **voluntarily** enlisted in a federal price support program (where the central bank works with farmers to optimize crop output and prices), and that was really the main issue I had in mind.

            Lawyers like to argue about what “voluntary” means, but basically my point is that we can’t be voluntary participants in federal programs that are designed to do certain things, and then once we’ve enlisted in those programs, and are benefiting from them, then turn around and claim that we sometimes have personal rights or freedoms to do this or that.

          • RickDiMare

            I’d like to add that, at least in my opinion, the real purpose of Wickard v. Filburn (1942) was to help justify or rationalize the new 1937 income tax on employee wages (not the tax on employer paid out wages), which tax on employees was enhanced a few weeks prior to the Filburn decision with the “victory tax” Revenue Act of 1942.

            In other words, just like farmer Filburn has no right to assert personal rights when voluntarily participating in a central bank supported federal program under the Commerce Clause, neither do workers have the right to complain about their wages being treated as income (instead of property) when they’re participating in a Commerce Clause based currency-regulating income tax designed to support or insure various social programs.

      • Damien S.

        Or there’s the pileup between the 9th amendment (people have unspecified additional rights) 10th (states have unspecified additional powers) and the general welfare clause (Congress has unspecified powers).

  • http://pulse.yahoo.com/_A57XFCQO6XNUHFAVZOYXVPQ56Y David

    I think this is basically correct, but I wonder if you could clarify whether you think the corrupt move is 1, 2, or 3?

    Also, it seems worth mentioning that a substantial portion of the disagreement is about the constitutionally authorized scope of federal power. In fairness to the constitutional theorists, on this issue in particular (but others too) the constitution is a deliberately vague document, in part because it had to be to get people who fundamentally disagreed about the scope of federal power to sign onto it. (There are many crazy things about the notion that we should defer to “the founders’ views” on this or that issue but an underappreciated reason this is crazy is that the founders often disagreed quite sharply).

    • http://pulse.yahoo.com/_A57XFCQO6XNUHFAVZOYXVPQ56Y David

      …upon further reflection, two minor disagreements:

      1. “Corrupt” isn’t the word I’d choose. What constitutional theorists are doing–filtering their case for a preferred political position through the constitution as plausibly as possible–is a persistent feature of american political discourse, and can be found with significantly varying degrees of sophistication, by politicians, pundits, public intellectuals, and members of the general public. It’s a quirky, somewhat ridiculous feature our political culture. I’m not sure participating in this venerable tradition is best described as ‘corrupt’, although it’s probably not a recipe for particularly interesting or creative scholarship.

      2. The alternative you present is to search for “truth”. I’m not sure truth (in a singular, capital-T kind of way) makes much sense as applied to constitutional interpretation. Constitions are intentionally vague political documents constructed in a way to satisfy multiple constituencies. So when you say “academic legal theory is supposed to at truth,” I’m puzzled by precisely what you mean here. How would you operationalize “truth” in constitutional interpretation, given the nature and purpose of constitutions?

      (I’m not making a relativist claim here, Aeon Skoble is obviously right that some interpretations are more plausible than others. But plausibility/implausibility is a very different register than truth/non-truth; there can be multiple conflicting plausible interpretations but not multiple conflicting true ones.

  • M Lister

    For what it’s worth, there’s a growing market in constitutional theory that criticizes the constitution as itself bad in various ways- the most well known is Sanford Levinson’s _Our Undemocratic Constitution_, though that is in many ways a new version of arguments that Dahl put forward in _How Democratic is the U.S. Constitution?_. Bruce Ackerman has also gotten in on the act recently, though less completely than Levinson.

  • RickDiMare

    When people think of the Constitution as corrupted or arbitrarily enforced they usually underestimate or are unaware of the power that accrued to the Commerce Clause in the 20th century, mainly due to technological improvements (which makes almost everything we do have an affect on interstate or international commerce). This trend was exacerbated by a currency regulating income tax that began during the New Deal era, and after all, what affects commerce more than money?

    So, in other words, it’s usually not the Constitution’s fault when things don’t appear to be working correctly, but rather, it’s usually a faulty, misunderstood, or excessively liberal interpretation of Commerce Clause powers under Article 1, Section 8, Clause 3 that’s at issue.

    • Adam Kamp

      I find this question really interesting… that is, I think it is a problem with the Constitution. The Founders used a term–regulation of commerce–when they didn’t have any idea how broad commerce could and would become. It simply didn’t occur to them. Thus, at least arguably the broad scope of authority the federal government has accumulated is legitimate.

      I don’t think this is a wise interpretation of the Constitution, but it’s certainly not wrong from first principles.

  • Craig

    Two quick comments – 1) The post is factually incorrect. Lots of libertarians and conservatives concede that the current commerce clause jurisprudence allows for lots of things they find morally objectionable (see for example, Tim Sandefur and Randy Barnett, or Orin Kerr at the Volokh conspiracy). Many of them (though not Kerr) just happen to think that Obamacare goes beyond even the post-New Deal jurisprudence and is thus unconstitutional. 2) if you are really a legal realist/positivist, why would you care whether constitutional arguments have any connection to norms, or indeed whether any particular jurist is or is not being consistent? By contrast, many libertarian lawyers (and many liberals too) don’t buy this argument, holding instead (much like the framers in 1787) that positive law should express or codify an underlying theory of justice or rights. Given this, they are perfectly justified in saying that the constitution was intended to protect certain rights; and to the extent that legislation violates those rights, it’s unconstitutional.

    • http://pulse.yahoo.com/_A57XFCQO6XNUHFAVZOYXVPQ56Y David

      Doesn’t Randy Barnett read a lot of libertarian political preferences into the 9th amendment?

      • Adam Kamp

        Sure, but isn’t that what it’s there for? The Ninth is intended to protect unenumerated fundamental rights that the first Congress didn’t think to pass. Since Barnett thinks that a whole bunch of economic rights are fundamental, he believes that they should be read into the Ninth Amendment. That’s what it’s there for, so I don’t find that inconsistent or problematic.

      • Aeon Skoble

        But that’s not intellectually corrupt. The 9th makes it plain that there are rights which exist concpetually prior to the Constitution, and so we should think of rights as fundamental, only evaporating when the Const. gives a power to the govt. E.g., because the Const. give the government the power to raise a Navy, I lose the right to raise my own Navy. But the Constitution doesn’t say anything about my losing the right to marry a woman of another race, or a man, or a aardvark, so I retain that right. If that’s libertarian, great, but it’s not an intellectually corrupt “reading into it” – it’s the plain implication of the language of the 9th.

        • Damien S.

          But the 10th makes it plain that the states have unspecified powers, such as barring you from marrying a woman of another race.

          And strictly speaking, the Constitution doesn’t give the federal government the power to create an air force, or to regulate nuclear weapons or their components.

          • Adam Kamp

            The Tenth wasn’t really understood like that. Indeed, Madison thought it was a truism; of COURSE nothing not delegated to the federal government was the province of the states. What else would it be?

        • http://pulse.yahoo.com/_A57XFCQO6XNUHFAVZOYXVPQ56Y David

          But what you and Adam (and Barnett) are doing is *exactly* what this post is calling corrupt:

          1. The Libertarian construction of “rights” is the best/most correct one.
          2. 9th amendment refers to unspecified “other” rights.
          3. Because (1) and (2), constitution supports libertarian policy conclusions.

  • billwald

    Seems to me the government we now have is a logical progression from the Constitution as written and amended. It is full of loop holes and the Anti-Federalists were right.

  • JoeJGrimm

    If legal scholarship can change the law as practiced by changing how the law is interpreted, aren’t legal scholars morally obliged to only advocate interpretations of law that they believe will result in a more just society?

  • David Gordon

    This is an excellent post, but I hope you’ll allow me to to quibble about one point in it.
    You say “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.)”

    If part of the law is unconstitutional, then the part of the law that is the logical contradictory of the unconstitutional part is constitutional. But contradictory parts of a law might both be constitutional, so there isn’t a general argument that an inconsistent law is both constitutional and unconstitutional.

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  • MARK_D_FRIEDMAN

    All constitutional law professors, advocates, and theorists may be equally intellectually corrupt, but this does not imply that all theories of constitutional interpretation are created equal. A theory that requires us to interpret the constitution in terms of the meanings of the words used, as commonly understood by people of that era, endows of our charter with an objective, publicly accessible meaning. It at least establishes a standard against which to measure how corrupt a particular argument is.

    On the other hand, a method of constituional analysis that says, in effect, the words of the constitution are to be understood in light of what contemporary morality requires, is entirely subjective. Obviously, there are profound disagreements about ethics, and this interpretation will in practice mean the constitution says whatever the personal norms of a majority of the Court require it to say. This standard is not predictable and publicly accessible, and thus is inconsistent with the rule of law.

    • good_in_theory

      This assumes that “the meanings of the words used” and “public opinion” at a given cross-section of language and thought “are commonly understood … with an objective, publicly accessible meaning.” (e.g. that variation occurs only longitudinally).

      Not a very believable assumption.

      At best one could perhaps say the realm of debate is limited by the scope of the “profound disagreements about ethics” of, say, the late 18th century. But the interpretation of those debates is not predictable or publicly accessible either, and is also “inconsistent with the rule of law.”

      • MARK_D_FRIEDMAN

        Apart from simply calling my suggestion “not a very believable assumption,” I fail to see that you have actually provided a reason or evidence for rejecting the idea that the words and phrases of the constitution have an objective meaning based on how they were understood at the time the constitution was adopted. For example, the Court’s important 2008 Heller decision, holding that the 2nd amendment

        • good_in_theory

          There’s nothing implausible about the process of finding *a* common understanding of a term at a given time.

          There is something implausible about the claim to have found *the* common understanding of a term at a given time.

          • MARK_D_FRIEDMAN

            Well, the term “fat cat” has both a figurative and literal meaning, but the context will usually reveal which is intended. I am pretty sure that the phrases like “well regulated militia” had a definite, ascertainable meaning to those using and hearing it in late 18th century America. And, this meaning constrains those who wish to impose their own ethical biases on the question of whether citizens “should” have an individual right to bear arms. If you want to pretend otherwise, then knock yourself out.

  • Stamford

    http://www.washingtonpost.com/opinions/george-f-will-the-supreme-court-and-imprisoning-juveniles/2012/06/26/gJQAtFCW4V_story.html

    Although he does not conclude that “the constitution is bad”, George Will argues that “The dissenters were right that a practice can be both constitutional and reprehensible.”

    That’s pretty close to the type of argument you would like to see more of, yes?

  • martinbrock

    Statesmen, interpreting laws according to Supreme Court precedent influenced by Constitutional theorists, have guns. Academic philosophers interpreting Kant may also have guns, but their guns seem to threaten me less. Taking this difference into account, if Constitutional interpretation seems more malleable than academic interpretation of ethical theories, I guess I can understand that.

  • Keith Spillett

    This is outstanding. Thank you.

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  • 9_9

    Because I’ve been on some weird kick of Star Trek lately, I thought I’d throw this out there: Maybe the problem is that the Constitution is seen more as some sort of religious text than as an actual legal document, malleable and replaceable? It’s weird that, of all nations that have a primarily democratic history in history, the United States has stuck with the same supreme legal document for almost its entire history. I think, because of this lack of change, it becomes this sort of nationalistic relic, an enshrined institution that is not to be replaced.

    (I refer to Star Trek because of the TOS episode, “The Omega Glory.” In it, the Enterprise encounters a planet that comes off as a weird cross between a primitive planet and what happens if the Chinese and Americans fought World War III. In it, the Yangs treat the Constitution as a sacred text, the Pledge of Allegiance as “holy words.”)

    • sigaba

      The pledge and the Preamble of the Constitution. Not only were they holy words, but the words had become phonetic incantations, they didn’t even know what the actual words meant. It had become a pure revealed theology.

      • good_in_theory

        That was certainly my relationship to “the pledge of allegiance” when we recited it in elementary school – phonetic incantations, that is.

  • Peter

    1) Isn’t it rather fallacious to assume that political philosophy is prior to the givenness of the Constitution? I first encountered the Constitution in my 9th grade American government class, and I would assume that most people who go on to become scholars of constitutional law study it a fair bit both in high school and undergraduate, before going on to spend years reading it and pertinent cases in law school. While childhood experiences are important, most fourteen year old kids do not have coherent political philosophies. Is it really so hard to imagine that the political philosophies of constitutional lawyers develop in dialog with the Constitution? How is this corruption?

    2) I find the comparison to Kant a little incredible. Admittedly, my PhD is in literature, but in my experience people are capable of disagreeing about the meaning of all sorts of things, and philosophers seem especially prone to disagreement. I’ve seen philosophers argue strenuously about how to interpret Plato, Thomas Aquinas, and Edmund Husserl, and I have no reason to expect that the field of Kant studies speaks with a single voice about all key textual matters. To take the comparison further, I would imagine that there are many ethicists who apply Kant to modern situations which would have been outside the scope of his efforts, and that there are disagreements about how to apply Kant, similar to arguments about how to apply the Constitution. Since I don’t study Kant (I’ve only read the Critique of Judgment) or ethics I can’t provide examples of scholars in disagreement, but I strongly suspect they exist. I’m sure a facile read of the situation could argue that this scholarly disagreement emerges from intellectual corruption of the same sort alleged against constitutional scholars.

    3) I think it is worth making a distinction between actual legal scholars and talking heads. I generally find that people who teach at law schools and write about these issues make cogent arguments, even when they disagree, that reflect a considerable amount of thought and a deep knowledge of case law. Talking heads generally seem to be the ones more likely to approach the Constitution by fitting it to approach their own political philosophy, latching on to whatever actual scholars say to provide a veneer of support. It would seem problematic, though, to conflate scholars and pundits and condemn the former for the sins of the latter.

    • sigaba

      “I first encountered the Constitution in my 9th grade American government class, and I would assume that most people who go on to become scholars of constitutional law study it a fair bit both in high school and undergraduate, before going on to spend years reading it and pertinent cases in law school.”

      Quite right. I think the issue is people are taught that right and wrong, they learn it from their environment, their experience, etc. Then, at some subsequent point, they are taught the Constitution, and they are taught, if they live in the US, that the Constitution is right. The syllogism thus formed, people interpret the Constitution to accord with their sense of what is Right.

      Americans aren’t don’t interpret the Constitution in a critical, comparative way, it’s constructed as a moral and final thing. America isn’t France, it hasn’t had three constitutions over the last century, and it isn’t Britain, having a hacked-together constitutional order ground out over the last 900 years. Americans always proceed from the assumption that the US Constitution is last Constitution we’ll ever need, and if someone wants to defend what they think is orderly, good, just, whatever, it must be found in the text that’s provided.

      People are also, IMHO, poisoned by the idea that the written work is the only artifact of the American small-c constitution, and that everything else that makes the government work, like common law, the party system, the class system, cultural hegemony, power elites, etc. are delineated by the document, as opposed to the document simply ordering the prior and natural power relations of the polity. Constitutional law doesn’t give individuals or institutions power, it’s the institutions and people that have power and legitimacy, and they bring these to the constitution for orderly, regularized and profitable disposition.

      I don’t know where this leaves the Health Care Law, aside from the observation that finding things unconstitutional is important but any such determinations are utterly bound up in politics and the power relations around the Constitution, and that simply “following the Constitution” cannot solve actual problems — the Constitution does not generate any more righteousness or legitimacy than what you bring to it in the first place.

  • Litigator

    The problem is the whole concept of a “legal philisophy.” Lawyers aren’t philosophers, and shouldn’t pretend to be. I will argue whatever is in my client’s best interest. If that involves arguing the constitution means one thing in one case, and then arguing a diametrically opposed position in another case (within the bounds of ethical rules of course) I will do that, without any qualms. Because its all bullshit anyway.

    • Jeff

      The post isn’t talking about litigators, Litigator. It’s talking about “academic constitutional legal theorists,” i.e. people who do claim to care about philosophy, not just advocacy.

    • RickDiMare

      It may be true that most lawyers are hired guns who will fight any side of an issue for the right price, but this can’t be true of all of them.

      Why don’t we start trying to identify a bunch who actually do practice from a libertarian philosophy (and who will fully subject their practices to public scrutiny)?

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  • Rococo

    Interesting that conservatives want us to interpret the Constitution in the cold objective light of the white, landed, rich men who wrote it and not the non-rich, women, African slaves whose views on the Constitution oddly did not survive. Which leads me to conclude that people making originalist arguments are choosing their desired path of comforting the comforted, and then choosing the well-suited originalist argument to get there.

  • http://www.facebook.com/michael.zigismund Michael Zigismund

    This post says all the right things.

  • Jeff

    I think this phenomenon is easily explained: “The Constitution is sacred scripture,” as one congressman aptly put it some years ago. In the title phrase of one of David Gelernter’s books, it is part of the scripture of “The American Religion.” The three steps described in this post are standard features of scriptural interpretation. They are possible in the case of the Constitution, as they are with the Bible, because both are the textual results of compromises among different factions, which means that different ideas lie behind them, and because both documents are vague and “oracular” on many key points.

    Academic legal theorists should not premise their work on a view of the Constitution as scripture, but since they’re surrounded by a culture in which that view is widely held, it’s not surprising that they do. There have been groups in the past that dissented and pointed out the Constitution’s flaws, and the whole issue was a more active point of discussion during the Progressive movement of 100 years ago. But, long story short, the challenges of the 20th century — assimilating masses of new immigrants, putting and keeping the U.S. on a war footing, justifying various U.S. efforts to remake significant parts of the world in an American image — led to a rallying ’round the Constitution and the cult of the Founders.

    That said, there are still dissidents here and there. I recommend Daniel Lazere’s book “The Frozen Republic,” which includes an account of how he thinks the whole thing is going to end up crashing.

  • Yagur

    I would recommend the work of Akhil Reed Amar of Yale for a very clear eyed, historically based interpretation of the Constitution. Whatever his conclusions, you can’t argue he’s arriving at them out of simple bias… the man knows his texts and sources too well.

  • Matunos

    There is a danger in anthropomorphizing the Constitution. The Constitutution doesn’t reject or allow anything, because it is an inanimate object. It is people who do things, and the Constitution represents agreements on how we should do things (like pass laws). It is not even as iron clad as a contract, because nobody alive today signed the Constitution. Different people and different generations interpret things from the document differently, in a different context from previous times. Without such flexibility, we wouldn’t be debating about what the Constitution allows or doesn’t allow, because it would have been obsolete long ago. (Do English courts still rely on the Magna Carta as their primary source of governance?)

    It’s exceedingly easy to assert that the Constitution allows or disallows certain things and that’s that, and constitutional law should just be focused on discovering what those things are (rather than the presumed ideological agenda with which the author takes issue). But who do you entrust with those determinations? Where do you locate someone who has the “correct” interpretation? And is not your answer to that question itself plagued by your own biases and preconceived notions? The very framers and legislators who drafted and ratified the Constitution did not have a unified interpretation of what they were agreeing to.

    As someone writing for a libertarian blog, you should appreciate that the most, because your particular interpretation of constitutional law is not presently very persuasive on a range of matters, so the likelihood of your interpretation being the ‘one true word’ is slim.

  • Leviathan0999

    I can’t say I find this argument particularly compelling without cites. Surely you can provide exemplars of the kinds of spurious, reverse-engineered constitutional arguments, with sources, from both sides of the political spectrum. Without cites, this is just an interesting thought experiment.

  • http://aaronmclin.blogspot.com/ Aaron

    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.”

    Um… because you’d be stoned to death in the street for daring to denigrate the sainted Framers of the Constitution?

  • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

    The constitution itself is corrupt so a non-corrupt analysis leads directly to it’s dismissal: http://praxeology.net/LS-NT-6.htm

    • RickDiMare

      The gaping hole in Spooner’s anti-Constitutional thought is that he neglected to account for the binding contract created by the use of money. Since money is purely a legal construct or convention, and cannot exist except by force of law and legal decree, we are bound by and to the Constitution personally, whether we use coin-based Treasury-Direct currencies, or, income tax regulated money substitutes. (The only exception may be people who have somehow learned to live without using money or money substitutes.)

      • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

        Gold and silver have been natural money throughout history. The fact that the government prevents you from using them as money now implies no contract.

        • RickDiMare

          Yes, but there is no metal restriction contained in Article 1, Section 8, Clause 5, and banksters know it, so they’re not preventing us from using Treasury-Direct coined money. That’s their defense, i.e., that (cupro-nickel) coined metallic money is available and nobody wants it; nobody is demanding it. Therefore, we all must be *voluntarily* using their privately-issued currency (or maybe, no matter how much we complain, we really unconsciously like and accept their currency more than Treasury-Direct coin-based currencies).

  • Bryan Mills

    Doesn’t essentially the same criticism apply to Rawlsian-style political philosophy?

    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 social contract from a state of nature as a given.
    3. Reverse engineer a decision strategy and state of nature such that it turns out–happily!–that the individuals in the state of nature forbid what you want them to forbid and allow what you want them to allow.

    I don’t see how the choices of mini-max and Rawls’ “veil of ignorance” are any more “intellectually honest” than constitutional theorists’ choice of theories of interpretation.

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  • Justin Alexander

    “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.”

    I’m not sure how to break this to you, but that happens all the time. All the time.

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  • Counsellor

    To be “Positive:”

    1.
    Simply
    put, without qualifiers, why do we have -a- constitution?

    Why do we have – this- constitution?

    Plausible answers:

    We have *a* constitution to provide a mechanism for government.

    We have *this* constitution to expressly determine the uses that
    may, or may not, be made of that mechanism; how and by whom..

    We have this form of constitution to provide, through
    amendments, for the electorate to make other determinations.

    R. Richard Schweitzer
    s24rrs@aol.com

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  • jackflack

    There is only one cause
    The Franklin scandal