Forensic constitutional interpretation.

Author:Havel, Brian F.


The gist of constitutional interpretation should be an amenability to competing and even complementary schools of hermeneutic endeavor.(1) This ideal collides with an intellectual seduction, nurtured within the legal academy, of monotheism--a belief in the possibility of one true theory of constitutional interpretation.(2) Scholarly argument notwithstanding, it is unlikely--and empirically unprecedented--that a judge would pivot the entire outcome of a constitutional dispute on, let us say, the presence or absence of a comma in the Exceptions and Regulations Clause of Article III (the Judiciary Article),(3) the repetition of the word "in" in the Vesting Clause of Article III,(4) or the sudden caesura in the litany of "alls" in the Cases and Controversies Clause of Article III.(5) It is also unquestionably hard to (re)build accurately a putative original intent of the Framers; the historical trails are manifestly incomplete,(6) dismayingly tenuous, and probably distorted by the relativism of modern exegeses.(7) Furthermore, practical American lawyers are usually edgy in the face of high formalism;(8) if the text becomes hostage to anarchic and unpredicted meanings, the holy grail of deconstructionist ideology, it may not yield any sensible explanations at all.(9)

These and other theories may prove separately inconclusive or overambitious, but each is merely a facet of an eclectic discourse that judges in the United States use to interpret the Constitution. Eclecticism, at the root of the common law, means a reasoned integration of many different sources.(10) This Article introduces a "construct" of constitutional interpretation,(11) which I dub forensic constitutional interpretation,(12) that repudiates monotheism and relies explicitly upon common law methodology. The construct has three deeply linked components. First, it seeks well-reasoned and persuasive opinions that fit beneath the eclectic methodological canopy of the common law.(13) Second, by embracing eclecticism it recognizes that interpretation should not beguile the interpreter into the fallacy of monotheism. Third, confident in its methodology, it avoids any pretense that judges are discovering, as opposed to constructing, constitutional meaning.(14) Whatever courts may do in other contexts, forensic interpretation expects that when judges interpret the Constitution they are well aware of the intended outcome of their exercise. By force of the first and second components of the construct, however, those outcomes will acquire coherence and endurance only through the rigor of the common law method and tolerance for polytheism in constitutional interpretation.

This Article has three Parts. Part I examines a select class of representative constitutional theories in order to reveal the conceptual inadequacies of interpretive monotheism. The theories comprise virtually the entire bandwidth of modern constitutional analysis, from rigidly formalistic to unabashedly outcome-driven. Then, Parts II and III explain the nature of forensic constitutional interpretation. The argument develops in three phases. Part II.A organizes forensic interpretation around interlocking acts of eclectic reasoning: the institutional methodology of the common law itself and (as a conceptual ramification of the common law method) a polytheistic integration of different interpretive theories. Part II.B makes an intimate connection between the outcome sensitivity of judges and the art of interpretation, and pairs this insight with the common law's instinct for forensic rationalization. Finally, Part III is an applied demonstration of forensic methodology. It uses two Supreme Court judgments delivered more than twenty years apart, in 1978 and 1999, both of which rebuffed federal encroachments into areas of retained state prerogative. These opinions manifest the Court's quiet but persistent allegiance, despite the tumult of theory, to the eclectic practices of forensic constitutional interpretation.


    Despite, or maybe because of, two centuries of explicating the Constitution, there is still no hegemonic school of interpretive scholarship. The Supreme Court has never endorsed a preferred theory, ranked constitutional theories, articulated a canonical interpretive system, or collapsed the fourth wall and admitted that it was using any particular theory.(15) In Thornburgh v. American College of Obstetricians & Gynecologists,(16) Justice White, in a dissent joined by Chief Justice Rehnquist, delivered a startling verdict on textualism and originalism--two voguish theories of the past decade--when he described as simplistic the view that constitutional interpretation could possibly be confined to the plain meaning of the Constitution's text or to the subjective intentions of the Framers.(17) This Part of the Article amplifies Justice White's bruising critique, for which his predicate was surely not the inherent heresy or error of these theoretical methods but rather their monotheistic vanity.

    Formalistic theories--notably textualism, structuralism, and originalism--are sometimes thought to be solely descriptive in the sense that judges who apply them will merely discover or report an immanent, preexisting meaning.(18) This supposition is understandable because formalistic theories are so preoccupied with acts of conceptual manipulation. These theories are also positivist in the sense that they purportedly offer a value-free, externally conditioned set of interpretive procedures.(19) Formalistic theories, however, are also prescriptive, or outcome sensitive, in that they direct attention to the text, or to the structure, or to original intent. They make an implicit normative judgment--a prescriptivist judgment, in fact--that text, structure, or original intent ought to predominate in constitutional analysis.(20) By embracing prescriptivism, even in this narrow sense, formalistic theories open the door to discretionary outcomes, and, as a result, cannot guarantee to inoculate judges against a predisposition toward construction, rather than discovery, of meaning.(21) As this Part shows, outcome sensitivity pervades formalistic theories as naturally as it does the overtly prescriptivist theories --the pragmatism of Richard Posner, or Ronald Dworkin's rights jurisprudence.(22) This second set of theories typically is not concerned with recommending interpretive tactics or techniques. Instead, these theories urge judges to aspire to qualitative outcomes that may have very abstract appeal.(23) Among these outcomes are economic efficiency or social utility, or social justice and the enhancement of individual rights.

    Thus, the spectrum of constitutional theories in this Part reflects two prescriptivist outlooks. Formalistic theories are methodologically prescriptive, directing attention to text, or to history, or to structure. On the other hand, substantive pre-scriptivism directs judges toward explicit outcomes. As a construct, forensic interpretation appears closest to methodological prescriptivism. Thus, it expects that outcomes, whatever their putative ideological coloring, will be the product of a reasoned eclecticism. Given this apparent close association, my critique begins by focusing on the principal constitutional theories in the category of formalism.

    1. Methodological Prescriptivist Theories

      1. Textualism: Formalism's Vanguard

        The quintessence of textualism, as Justice Antonin Scalia describes it, is the respect for democratic government that is assured by examining only what the lawgiver--here, the Framers of the Constitution--promulgated, and the avoidance of open-ended hypothesizing about what the lawgiver meant.(24) In taking this view, Justice Scalia demonstrates immediately the prescriptive potential of a formalistic theory: in purporting to confine the interpreter to the written words of the Constitution, it fulfills a broader normative strategy of reining in judicial discretion.

        Textualism as formalism might hold the promise of reliable and predictable analysis, until the conceptual instability of the textual matter itself is understood. In a textualist analysis of the reach of federal jurisdiction under Article III of the Constitution, for example, Professor Akhil Reed Amar seems close to an apology for what he calls "the sort of precise and technical parsing" that permeates his essay.(25) In a commentary on the Fourteenth Amendment, offered in the same essay, he exposes his own ambivalence about the promise of this kind of textualism. Amar argues that, in contrast to Article III, the Fourteenth Amendment has a "different rhythm and feel: it speaks in terms more lofty, general, and open-ended."(26) Faithfulness to the text of the Amendment, he reasons from this premise, apparently invites "a higher level of interpretive generality and a different mode of legal analysis."(27) Though appreciating the plausibility of Amar's exegetical distinction, it is nonetheless unsettling (even if he might be a rueful textualist) to read his confident solipsistic reflections on the "rhythm and feel" of one provision of the Constitution versus another, as though that kind of warp-and-weave subjectivity could itself become the metric that decides the choice of outcomes in constitutional analysis.

        The truth is more centered. Technical readings do have a high place in our legal system; it would be inept for an interpreter to overlook the complex interweavings of a text like Article III that was manifestly written with the quotidian operations of government in mind.(28) Amar's self-reproach should not be for an earnest textual exegesis, therefore, but rather for allowing an implicit assumption that the words themselves might complete the interpretive inquiry. As Amar acknowledges implicitly, the linguistic imprecision of the Exceptions and Regulations Clause in Article III, for example, makes it capable of inaccessibility, and this is at least...

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