Beard & Holmes on constitutional adjudication.

• Author: Vermeule, Adrian
• Position: Oliver Wendell Holmes Jr. - Centennial of Charles Beard's 'Economic Interpretation of the Constitution'

My title is somewhat misleading, because Beard said little about constitutional adjudication, (1) while Holmes thought little of Beard's most famous book. But I hope it will prove illuminating to wire a connection between these two thinkers. A century ago, Beard set us a puzzle to which Holmes gave us an answer. Not necessarily the only answer, and perhaps not even the right answer. But at least it is coherent, and that is not to be sneered at in constitutional theory. Let me explain.

Charles Beard's 1913 book, An Economic Interpretation of the Constitution, structured a whole field of historical inquiry into the founding, for a generation at least. Does Beardian scholarship have any utility for public law adjudication, and if so, what sort of utility does it have? By "Beardian scholarship" I do not mean just Beard's own book of 1913, which has less and less to offer judges today, as the founding era recedes. (The same point applies to more recent public choice scholarship on the Framing era, such as Robert McGuire's book on the political determinants of the framers' behavior. (2)) Rather, I mean scholarship in a broader tradition or style that Beard initiated--scholarship from an external perspective that attempts to understand and describe the actual motives of constitutional rulemakers, as opposed to their idealized motives, or the public-regarding rhetoric that may accompany their actions and choices. That definition encompasses any work in political economy or positive political theory that attempts to explain the genesis of constitutional rules, unwritten constitutional conventions, and major quasiconstitutional statutes. Examples in the last category include studies on the political origins of the Administrative Procedure Act (3) and the Civil Rights Act of 1964. (4)

This is really just an example of a larger methodological problem: what is the connection, if any, between the external perspective of the historian or political scientist and the internal perspective of lawyers and judges? (5) That is Beard's puzzle; Beard challenges us either to reconcile our external and internal perspectives on constitutionalism, or else conceivably to declare them irreconcilable.

I will begin by showing that standard approaches to constitutional adjudication--originalism (6) and Dworkinian moralism (7)--are resolutely internal and thus have little use for the external standpoint of Beardian scholarship. I will then describe a strategy of reconciliation offered by Justice Holmes, one that connects external and internal perspectives by means of a nonideal theory of constitutional judging. There is some irony here, for Holmes himself was critical of Beard in correspondence. Yet Holmes was more Beardian than he knew; once we understand Holmes's implicit theory of judging, it naturally creates a role for Beardian scholarship.

In my view, Holmes offers a nonideal theory of judging under political constraints; the theory holds that the rational judge chooses the course of action that, at lowest possible cost, adjusts constitutional law and policy to match "the actual equilibrium of force in the community--that is, conformity to the wishes of the dominant power[]." (8) In this framework, Beardian scholarship offers external analysis of the shape and force of the political constraints that the Holmesian judge should take into account when making constitutional law. External Beardian scholarship, in other words, helps to delineate the feasible political options or possibilities for constitutional law (9), a critical datum from the internal but nonideal perspective of the Holmesian judge. (Beardian scholarship is not the only source of insight into constitutional possibilities, of course; the Holmesian judge faces the question whether to consult materials like public opinion polls, a question I touch upon later.)

It is a separate question, of course, whether Holmes's theory is a good one. I do not at all mean to address that question, or to defend Holmes's theory on its merits. I aim to show only that there exists a prominent strand of American theory about judging--and by definition any theory held by Holmes is prominent--that is coherent and that allows us to internalize Beardian scholarship within the legal enterprise, should we want to do so.

1. STANDARD THEORIES

   Let me begin by examining standard theories of constitutional adjudication, originalism and Dworkinism, to see whether they can make any use of Beardian scholarship. (10) do not see how they can. Both originalist and Dworkinian judges show little interest in Beard, (11) and given their theories that lack of interest makes perfect sense. Although the reasons differ somewhat in the two cases, the common theme is that neither the originalist nor the Dworkinian approach has any use for external debunking of the framers' motivations.

   It is striking that originalists, who focus obsessively on the founding era, show so little interest in Beard. I believe there are several factors at work here. For one thing, originalism is a family of theories, and some members of the family are engaged in an enterprise to which Beard simply does not speak. To the extent that originalists emphasize the original public and semantic meaning of terms, Beard's work will be of little value to them. Originalists of that sort naturally look to the ratification debates, not to the confidential proceedings of the Philadelphia convention. Beard focuses precisely on those proceedings, and on the motivations of the framers who participated in them. By contrast, Beard's interest in the ratification debates is secondary, and not focused on original public meaning anyway. So Beard's potential relevance is largely restricted to older versions of originalism (12) that look to the intentions of the framers at Philadelphia. But those versions have few adherents nowadays.

   There is a deeper issue, however. Originalists of any stripe do not want to invoke an account of the founding era that casts an unflattering light on the motives of the political actors whose decisions are supposed, by the originalist theory, to be authoritative for later generations. This is a problem in the political theory of constitutionalism as much as a problem within constitutional theory in a narrower sense. The less normatively attractive the purposes and commitments of the framers, the harder it is to argue that their decisions should be seen as authoritative. The point is not a logical or jurisprudential one; I think we can imagine, although barely, a polity in which a constitution written by utterly self-interested actors is treated as binding law and interpreted along originalist lines. But from the standpoint of political psychology, a regime like that simply will not fly. It is not psychologically possible to generate large-scale working commitment--constitutional faith (13)--in the service of a regime whose genesis is normatively disreputable, and known by all to be so.

   Dworkinians also want an account of the Constitution that puts it in the best possible light, emphasizing justification in terms of political morality as well as fit with the legal materials; hence, Beard's debunking emphasis on the self-interested motives of the framers and their constituents is difficult to incorporate into a Dworkinian framework. Fit and justification work at cross-purposes when the judge has to fit doctrine to a constitutional framework written to protect the class interests of property-holding merchant elites of the eastern seaboard, striking a corrupt bargain with southern slaveowners. Dworkinians, of course, are not limited to originalist sources or datapoints; when engaged in justification, the Dworkinian judge may draw "principles" from the entirety of political history, and this is both the main strength and main weakness of Dworkinism. But the constraint of fit means that the Dworkinian judge is supposed to connect current principles with the founding era in some sort of coherent chain-novel account. (14) If the first chapter is hopelessly disreputable from a normative point of view, the chain-novel lacks integrity and never gets underway.

   True, Dworkinian judges tend to emphasize the Reconstruction Amendments, with their guarantees of equality in various forms, and downplay the Constitution of 1787 to some degree. The Reconstruction Amendments are plausibly a more idealistic set of texts--although a standard debunking account explains their genesis in terms of the partisan interests of congressional Republicans. But in any event, the Reconstruction Amendments do not a Constitution make, not by themselves. They presuppose the basic structure of government set out in the document of 1787, and if the genesis of that structure is hopelessly disreputable, the Reconstruction Amendments fall too.

   There are several ways to massage the problem, but none is fully satisfactory. One may observe that--according both to Beard and to the follow-on scholarship, like McGuire--many of the framers, much of the time, weren't so much self-interested as faithful representatives of self-interested constituents, whose economic interests the framer-representatives understood particularly clearly. (15) While that might or might not absolve the framers of personal opprobrium, depending upon what theory of representation one holds, it doesn't make the genesis of the Constitution any more normatively appealing. The framers' faithful agency on behalf of self-interested constituents would just add one more step in the chain of transmission between the normatively disreputable motives and the constitutional outcome.

   For the same reasons, there is little comfort in the...