Josh Chafetz Defends Academic Con Law

By On July 6, 2012 · 9 Comments · In Current Events

Before the ACA decision, I wrote this cynical take on academic con law.

Josh Chafetz at Cornell Law School sent me the following reply in an email, which he gave me permission to post:

I can’t help but comment…on your comment on my chosen field (“Academic Constitutional Legal Theory is Intellectually Corrupt”).  Clearly, some people do choose their interpretive theories to get the results they like, and probably no one chooses an interpretive theory that, more often than not, produces results they find abhorrent.  But I don’t think those points get you anywhere near the claim that “almost everybody” doing academic con law is “intellectually corrupt.”

First, as an empirical matter, I’m not at all sure how you reached the conclusion that almost everyone begins with a political philosophy and reverse-engineers from there.  How would you know if that was what they were doing, as opposed to something else?  Obviously, I only have access to my own cognitive processes, but I can tell you that, for me, it is very much the other way around – my thinking about political philosophy has changed significantly as a result of my thinking about the Constitution.  I’d suggest that many other academics are similar – after all, “this law is stupid but constitutional” is a fairly common refrain among constitutional law people.  And as for why you don’t see more left-liberal theorists saying, “A just society would allow X, but, alas, our Constitution forbids X and is to that extent a bad Constitution,” I’d suggest that you just haven’t been looking hard enough.  All of Sandy Levinson’s recent work falls into that vein.  Bruce Ackerman has repeatedly critiqued constitutional structure.  The entire edited volume Constitutional Stupidities, Constitutional Tragedies takes up this task.  And these are contributions by many of the leading constitutional scholars out there.

Second, as an interpretive matter, you seem to be assuming that there is a naturally correct way to interpret the Constitution and that it ought to be completely outcome-independent.  But there are interpretive theories – often labeled “pragmatic” – that argue that the consequences of a certain interpretation are highly relevant to the interpretive process.  Now, you may reject that interpretive theory, but I find it hard to see why it would be corrupt.

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  • billwald

    The government we now has is a logical outcome of the constitution as amended. If its writers did not desire this result then they screwed up.

    I don’t think there is any “fair” government for 300 million people spread over 600,000 square miles (lower 48). I propose a united 50 sovereign nations instead of 50 provinces of the USA.

    • good_in_theory

      So, the anti-federalists were right?

      • billwald

        Yes! One of their predictions which came true was that if the bill of rights was included eventually all other “rights” would be ignored by the courts.

  • Sean II

    Interesting letter, because the third paragraph is really an accidental concession to Brennan’s original point. If some scholars get to claim strict construction, some get to claim original intent, and some now get to claim a “pragmatic” method that uses the known (or even just the predicted) consequences of a given interpretation to shape that interpretation, then you have a field of study where no question can ever be tested and no theory can ever be wrong.

    How else (and in what other field) could a blindingly obvious phrase like “make no law abridging…the freedom of speech” become the window into an insoluble mystery? Even other disciplines like history and psychology, so long ruled by equivocation and non-falsifiable concepts, even they would hesitate before trying to bend the meaning of such plain words.

    The fact that some constitutional scholars still occasionally concede points against their own prejudices, or accept interpretations they don’t like, changes nothing. What matters is that they now have the intellectual tools to be dishonest whenever they want.
    A field becomes dishonest not when every last practitioner is a charlatan, but when it becomes unable to defend itself against fraud, and unwilling to expel even its most obvious charlatans. Surely constitutional law theory has reached that point and passed it.

    • good_in_theory

      If ‘no law abridging… the freedom of speech’ is so blindingly obvious, what is the blindingly obvious way of disentangling spending from speaking, for example?

      • Sean II

        That’s actually a perfect example. An honest scholar worried about spending and speech would say: “Damn those framers, they failed to foresee how expensive speech would be in the future. We really need to amend that amendment so as to permit some restrictions on commercial speech and campaign finance. Until then we’re stuck with a rule I don’t like.”

        The corrupt approach would be to say: “When they wrote ‘no law’, the framers didn’t foresee how expensive speech would get…so obviously we need to interpret the words ‘no law’ to mean ‘some laws but we promise to be super careful’.”

        That’s the definition of dishonest: using words to indicate things that are either no part of or directly contrary to their consensus definition.

        (Reminds me a cheesy old joke: “When do radical feminists believe that ‘no’ secretly means ‘yes’? When the ‘no’ is preceded by ‘Congress shall make…’.”)

        • good_in_theory

          An honest scholar might also just say that spending isn’t speaking, and freedom to speak is satisfied so long as one isn’t gagged or prosecuted for saying something. That seems pretty obvious to me.

  • http://voodothosting.com/23/ Lorraine Lee

    “Con law” seems ambiguous. Could mean “constitutional law” (which seems to be what it means here) or “contract law.” FWIW, I’m a non-contractarian (or -maybe- a thick contractarian) because I perceive (actually-existing) contracts as some kind of con game.

  • Papi

    I think Josh’s last paragraph may be the rub here; he sees ‘pragmatic’ interpretations as not ideological. Which is, itself, an ideological approach in opposition to something like a natural law approach. The preceding material then follows; a pragmaticist would be expected to change with empirical data, which is the whole reason why non-pragmaticists dislike the approach. Hence what he sees as open-mindedness (ie lack of ideological color) is exactly the ideological color you’re talking about.