Reply to commentators.

• Author: Rubenfeld, Jed
• Position: Response to article by Michael Stokes Paulsen in this issue, p. 2037

I do not know Michael Stokes Paulsen or his writings, but I will do my best to reply to his gracious and elegantly impartial review. His absolute refusal to engage in sycophancy should be a model to us all. I cannot imagine why he likens himself to "a skunk." (1)

It is difficult, however, to respond to objections to your work when the objector repeatedly objects to the exact opposite of what you are saying. Consider, for example, what Paulsen says about Home Building & Loan Ass'n v. Blaisdell. (2)

Blaisdell is important because it is one of the very few cases of modern constitutional law--perhaps the only one--in which the Supreme Court seems to explicitly repudiate a foundational Application Understanding. Blaisdell therefore stands as a counterexample to the pattern I describe as otherwise ubiquitous in constitutional law. Despite this, and even though the central thesis of my book is that courts must inviolably adhere to foundational Application Understandings, Paulsen says I "accept[]" the decision. (3)

According to Paulsen, I say that Blaisdell, even though it violated a foundational Application Understanding, is a "'widely admired decision' and should be understood as creating a new interpretive paradigm--a new constitutional commitment, as it were." (4) My endorsement of Blaisdell is supposed to look bad when contrasted, as Paulsen contrasts it, (5) with my arguing in other contexts against judges violating foundational Application Understandings. And I guess my endorsing Blaisdell would be pretty embarrassing--if I had endorsed it.

It is true that, on page sixty-seven of my book, I say that Blaisdell "is a widely admired decision." (6) It is also true that on page sixty-eight, at the conclusion of the very same paragraph, I say that Blaisdell--if in fact it does repudiate a foundational Application Understanding--"is wrong and should be overturned." (7)

Very few readers would view "is wrong and should be overturned" as "acceptance." For the record, nowhere in my book do I say that Blaisdell "creat[ed] ... a new constitutional commitment." (8) The whole point of my entire argument, as any minimally competent reader--without some peculiar axe to grind--would know, is that a decision abandoning a foundational Application Understanding violates a constitutional commitment.

Or consider the opening of Paulsen's "review," which takes issue with the opening of my book. I begin Revolution by Judiciary by contrasting constitutional law with statutory and administrative law, where the Supreme Court has at least in principle established legally authoritative interpretive rules and protocols that lower court judges are supposed to follow when construing statutes or regulations. (9) By contrast, I point out, there are "no official interpretive rules" of constitutional interpretation. (10) While there is a law of statutory and regulatory interpretation, "[t]here is no law of constitutional interpretation." (11) I write, "Incredibly, American constitutional case law has almost nothing to say about what judges are supposed to be doing when they go about the business of interpreting the Constitution." (12)

Paulsen, calling this "nonsense," says: If there is a problem with constitutional law today, it surely is not that it has "almost nothing to say" about how to "go about the business of interpreting the Constitution." It is that it has far too much to say! Our cases, our practice, and our theorists point in wildly different directions, offer and illustrate competing interpretive theories, and reveal a cacophony of voices virtually screaming for attention.... Surely Rubenfeld jests. We suffer not from a deficit but a surfeit of constitutional theory. (13) There are so many foolish errors in this paragraph it's hard to know where to begin. I will focus on the two most important.

First, the subject of my...