The key conflict these days is between “originalism” and deference to legislatures.
One of the questions I had when I became a professor of law was “What does it mean to profess law?” Another: “What law is it that I am to profess?” I’m still trying to figure out adequate answers to these confounding questions.
The versions I confronted when exclusively engaged in law practice were easier to answer. To practice law meant to engage with the law the way that I did as a practicing lawyer; the law that I practiced was just that law that was in the tools of my trade (such as briefs, memoranda, and emails with clients). One of my favorite instruments in law practice was the appellate reply brief. We had a chance to drop law on the opposition and judges knowing that we had the final written word before argument. We could see easy cases becoming easier, and harder cases becoming more focused on what really mattered. The law we practiced there is the law that got the job done.
But prescinding from practice and focusing only on profession can be disorienting. The game looks different floating in the blimp than playing on the field. But maybe the solution is just to have a powerful enough lens to train on the field. Then we can figure out the law we profess by collecting and organizing the right features of the law we practice into some coherent pattern. But what are those features, and how do we organize them?
Consider our constitutional law. How do we find it?
It should be easy, you might think. Just look at the Constitution itself—a fairly compact written legal instrument—and figure out what the right government officials, like Justices on the Supreme Court, have said about what it means when speaking authoritatively for our constitutional law, like in opinions for the Court.
Unfortunately it’s not that simple.
Don’t believe me? Interrogate an opinion for the Court and you might just get a SNORT.
The example from my last post was Justice Kennedy’s statement in Obergefell v. Hodges that “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment … entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” William Baude and Stephen Sachs treat this as a falsifiable claim about the original law of the Fourteenth Amendment. But critics like Eric Segall and Richard Primus understand a statement like this as window dressing for some form of living constitutionalism (see Segall “Originalism as Faith”), akin to the way that politicians casually invoke God (see Primus, “Is Theocracy Our Politics?”) (Link no longer available). Justices “often use the rhetoric of originalism to create a symbolic (and maybe important link to the past)” (Segall, p.44). But it is a mistake to confuse judicial rhetoric with the substance of judicial decisionmaking. The mistake is similar to that of treating “invocations of God by political leaders [as if they] reveal a widely held theory of political authority” (Primus, p. 44).
So go read those opinions of the Supreme Court; just don’t take some of their language about the constitutional text too seriously.
In today’s legal academy, the most widely held view about the relationship between constitutional law and the Constitution is probably some version of David Strauss’s “common law” constitutionalism. Constitutional provisions are not to be treated like the text of a legal instrument but like common-law precedents (and with a fairly casual understanding of how common law precedents are to be treated): “provisions are expanded, limited, qualified, reconceived, relegated to the background, or all-but-ignored, depending on what comes afterward.” The text makes an appearance, but the real work is done elsewhere. “Like a venerated old case, a textual provision might be invoked for rhetorical effect, and maybe even for more than that … [but] the text of the Constitution often does not determine the shape of constitutional law today.”
There is a big problem, though, with professing as our constitutional law just what this practice purports to pick out. A seemingly important part of that practice is to keep professing something else, namely that constitutional law really is the working out of the law supplied by a written legal instrument. We miss the importance of this profession internal to our practice when we treat judicial claims that purport to be foundational (such as claims about what kind of law the Fourteenth Amendment supplies) as largely ornamental instead. But we also risk overemphasizing the importance of such claims if we take them more seriously than we should. So just how seriously should we take a claim like Justice Kennedy’s in Obergefell? That’s a question for another post.