The Judicial Necessity of Constitutional Choice

Cass Sunstein is among the country’s foremost legal scholars, distinguished by both his prodigious output and an interdisciplinary approach that draws on the insights of behavioral psychology, economics, and social science research. In his latest book, Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes, he gives us an engaging study of jurisprudential comportment that classifies judges into the four groups of the subtitle.

Sunstein is not overly cynical in his analysis of the reasons why a judge might adopt a particular persona. And he notes that from the same governing principle, different interpreters can and do reach very different results. “The choice of approach,” he reminds us early and often, “is inescapably ours.” The question, then, is not just why we ought to be bound by the dead hand of the past, but how it ought to bind us.

Even the idea that we should prefer the original meaning (to take just one example of an interpretative approach) of the Constitution is itself to embrace a normative position or a number of such positions. After all, every interpretative modality is bound to accept the fact that the text of the Constitution, as Professor Randy Barnett writes, “simply doesn’t contain enough information to decide all the cases and controversies that arise.” We must therefore look outside of the four corners of the document for guidance in the resolution of inevitably arising ambiguities. One must agree with Sunstein that attempts “to mask the necessity of choice” in the process of interpretation are misleading. For when we decide what the Constitution means for a given set of facts, we are engaging in an inherently philosophical exercise. Whether we like it or not, the interpreter’s normative stances will always—indeed should always—inform his process of interpretation.

Sunstein’s exposition of his four personae offers an illuminating new understanding judicial attitudes and behaviors. “[C]utting across standard ideological and methodological divisions,” these categories suggest that a judge will take up a given approach as much for the appeal of the persona as for the concrete “reasons offered on its behalf.” This book reaffirms the fact that the standard liberal-conservative dichotomy and its stale talking points just don’t apply in any coherent way to debates about constitutional interpretation.

The leading personae the author gives us at the outset are “Heroes, Soldiers, Minimalists, and Mutes,” and through these we see the full panoply of combinations between political ideology and judicial approach on display. There are, for example, conservative Heroes ready to take momentous constitutional strides, and Progressive Mutes dodging pressing questions. It’s a device that enriches our understanding of the Supreme Court and its history.

Still, the explanatory utility of the categories is limited by the extent to which they bleed into one another or divide still further into smaller subsets (for instance, the “Burkean Minimalist”). The lines separating the personae seem to break down once confronted with real judges and real cases. Not only can a judge fall into several categories from case to case, but a judge may implicate several personae even in a single case.

Introduced first are the Heroes, who, “whatever their ideology,” are defined by their belief “in a large and potentially transformative role for the federal judiciary in the Constitution’s name.” Among them, we find originalists and nonoriginalists alike, the category being associated simply with judicial activism, typified by Chief Justice Earl Warren. The Hero will be most familiar to the libertarian reader. Today’s libertarian “new originalists” fall into this category, remonstrating with the judiciary to engage in genuine judicial review, striking down laws that violate individual rights. Brown v. Board of Education (1954) is cited as “the iconic heroic decision.”

We next meet the Soldier. Sunstein’s Soldier is often—though not always—the personification of judicial deference, the idea that judges should yield to the political branches, to the outcomes of the democratic process. Soldiers may, however, believe that genuine enforcement of the Constitution produces heroic judicial results as a matter of course. Thus are the new originalists simultaneously Heroes and Soldiers, willing to take bold steps to protect individual rights, all the while regarding these steps as simply and faithfully upholding the Constitution. But as Sunstein notes, theirs is a controversial position, one that even many other originalists—including fellow libertarians and conservatives—do not share. In point of fact, it has often been fellow originalists who most emphatically reject new originalism’s enthusiastic embrace of substantive due process.

Incrementalism defines the Minimalist, his discretion tempered by a rejection of abstract and all-encompassing philosophical systems and a hesitation to break with tradition and the status quo. While the Minimalist does not purport to follow “anyone’s orders or will,” he is skeptical of heroic departures from custom, preferring to respect “long-settled practices.” A cautious, narrow focus on the specific facts of the case at hand and a special attention to precedent thus distinguish the Minimalist. Sunstein compares rationalist minimalism to Burkean (or traditionalist) minimalism, arguing that while the former is preferable as a tool for deciding, for example, “whether and when discrimination is acceptable,” the latter is better suited to separation of powers questions.

Mutes place a high value on prudence and passivity. Whenever possible, the Mute will decline to participate at all, often relying on justiciability doctrines to avoid deciding a case. Faced with “hotly disputed issues,” the Mute commits herself to refraining from prematurely settling controversial questions in ways that would foreclose or interfere with public debates and exchanges. Mutes therefore consider strategy in their decisions about whether to hear a case, sharing Minimalists’ wariness of immediate, far-reaching changes. They worry that intruding into a political controversy too early could have unintended consequences, setting back the underlying value that the judge seeks to advance.

The example here is the Yale law professor Alexander Bickel, who argued that the judiciary should remain mute on the constitutional question of anti-miscegenation laws, not because he favored such laws, but for strategic reasons. Because Mutes are often “biding their time,” careful to wait for the right moment to answer a delicate question, they are, Sunstein argues, family members of the Minimalists. But where Minimalists want to say little, to decide only what they must, Mutes want to remain completely silent. For today’s originalist libertarians, this Minimalist and Mute family is the great enemy; its members have, the argument goes, abandoned their duties and left individual rights at the mercy of unscrupulous and imperious lawmakers and regulators.

After illustrating his four personae, Sunstein considers some of the most common methods of interpretation, arguing that no method should be considered a foregone conclusion. The very idea of interpretation, he contends, is predicated on choice, and that choice is, in turn, a function of criteria that are independent of the text itself. We should be wary of claims that any one approach is simply demanded by the Constitution.

Turning to the idea of “interpretation in general,” apart from constitutional law, Sunstein reflects on how we think about the concept “in ordinary life.” Even in casual conversation, we attempt to glean the intent of the speaker from her words and other signals that hint at what she means. Sunstein cites University of San Diego law professor Larry Alexander for the proposition that proper constitutional interpretation is a search for “authorial intention.”

The eminent literary scholar Walter Benn Michaels goes so far as to argue that appeals to, for example, original public meaning are beyond the scope of legitimate textual interpretation, which is necessarily an attempt to apprehend authorial intention. And a focus on intent is recommended by an analogy likening the Constitution to a contract.[1] Just as a court sitting in judgment of a contract dispute might consult external factors such as the parties’ prior dealings or customs within their industry, many constitutional scholars and judges have argued that we should seek to apprehend the Framers’ intent.

Many, perhaps most, contemporary originalists disagree. A diverse group that includes everyone from Barnett to Justice Antonin Scalia, these originalists contend that their project is about parsing the “original public meaning” of the Constitution’s words. Such originalists argue that it is not intent—that is, a particular mental state—that is ratified or enacted, but rather the words themselves.

For Justice Scalia in particular, adherence to original meaning necessarily constrains judges, the Constitution relegating them to a soldierly role, one that ignores philosophical abstractions like natural law. Insisting that natural law has no place in interpreting the Constitution, he has said, “I apply United States law. I don’t apply natural law. God applies natural law.” But for original meaning constitutionalists like Barnett and Timothy Sandefur (to name just two prominent examples), natural law should be central to our interpretive process because law, rightly conceived, must not contradict it. This is the notion that “law is the opposite of arbitrariness.” This view does not, in fact, describe the law, at least not necessarily; rather it describes law as it ought to be, positing a normative position in the philosophy of law.

Whether or not one shares this normative claim, it is decidedly inaccurate as a descriptive claim. Much more often than not, the positive law is arbitrary and rights-violating. Quite contrary to the claims of libertarian originalists, then, if the legitimacy and authority of the Constitution are predicated on its consistency with libertarian natural law theory, then neither it nor the government it created can be rightly regarded as legitimate or authoritative. Though Lysander Spooner is the acknowledged source of new originalism, the more mature Spooner of No Treason (1867) knew that his natural law reasoning did not save the legitimacy of the Constitution, but destroyed it. On this point, we might quote Richard Epstein: “The Constitution is not a libertarian document.”

Admittedly, attempts to pursue the mental state of the Framers are likely to prove unavailing, for such undertakings assume the Framers to be fundamentally of one mind. We must grapple seriously with the undeniable fact that the very people who ratified the document could know precious little about what its words actually meant at the time, much less what it means today, over two centuries later. Even for a committed libertarian, the insistence that the Constitution “just is” a consistently libertarian instrument strains credulity on its face. What is rather clearer, perhaps, is that it ought to be a libertarian instrument—that judges should read it as protecting the natural rights of the individual; this, of course, is a philosophical claim and is distinctly at odds with the argument of most libertarian originalists.

Indeed, they tend to actively deemphasize the role of their own convictions in reaching their constitutional conclusions. Barnett, for example, asserts that “We are not pushing a libertarian reading of the Constitution.” Yet we can hardly regard it as mere coincidence that the original meaning as conceived by the libertarian legal community aligns quite neatly, almost perfectly, with their normative commitments and political ideology. What are the chances that all libertarian policy prescriptions are so seamlessly consistent with a principled originalist method of constitutional interpretation? Or as philosopher Jacob T. Levy recently remarked, “Your views about what laws are bad shouldn’t align too closely with your theory of what laws are unconstitutional.”

So while the particular and peculiar brand of libertarian originalism is not without appeal, especially for one who is already a radical libertarian, it often appears too convenient. As Professor Mark R. Killenbeck writes, this “ ‘new originalism’ is incredibly seductive,” but its unique and delicately assembled recipe of historical and philosophical claims are ultimately a bridge too far.

Moreover, libertarian faith in the judiciary may be misplaced, with judges likely to be more statist and Progressive than most Americans. Indeed, the federal bench in particular is likely to be even more confident in the boundless benevolence of omnipotent government than either house of Congress. As Judge Richard Posner observed in a 2009 interview with Russ Roberts, “Really the Supreme Court has written a pretty blank check to the government.”

As libertarians and conservatives, we ought not needlessly bind ourselves to any particular interpretive idiosyncrasy. Our Progressive adversaries feel no such arbitrary compulsion to adhere to any fixed method of interpretation, for they accept, at least tacitly, that all such methods are themselves grounded in normative ideas. Sunstein’s book is refreshing in its acknowledgment of this fact. The Constitution has been a kind of Rorschach test, seeming to recommend whatever politico-economic philosophy or program its interpreter espouses.

As unpalatable as it may be to us as libertarians and conservatives, living constitutionalism of some variety may well be the interpretive method most amendable to libertarian ideas, affording the adaptability necessary for transitioning from the soft-authoritarian Progressivism of the present moment (which, we should note, is supported by mountains of precedent) to a free society with a limited government.

[1] There are, to be sure, obvious problems with the idea of the Constitution as a contract (see, for example, Barnett’s The Misconceived Assumption About Constitutional Assumptions). But so, too, are there many defects with the attempted reconciliation of the Constitution with a radical libertarian notion of natural law. Under any interpretation, the Constitution clearly authorizes violations of natural law and individual rights, at least as libertarianism posits them.

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