Scalia's poker: puzzles and mysteries in constitutional interpretation.

• Author: O'Neill, Timothy P.
• Position: U.S. Supreme Court justice Antonin Scalia

Howard Hawks had some trouble directing The Big Sleep, the 1946 Humphrey Bogart/Lauren Bacall film noir based on Raymond Chandler's classic novel. He once convened a story conference with the film's three screenwriters, a group headed by Nobel Prize-winner William Faulkner. The four were having a terrible time trying to make sense of Chandler's labyrinthine tale. Flummoxed by one plot twist, Hawks fired off a telegram to Chandler reading "Who killed chauffeur?" The next day he received Chandler's response: "Damned if I know." (1)

Such an answer would have been inconceivable from a writer such as Agatha Christie. Her books are elaborately plotted, with every detail accounted for. There are no loose ends.

Christie and Chandler were both fine writers. But they worked in very different genres: Christie created puzzles, while Chandler created mysteries.

This point was brought home in a completely different context by Gregory Treverton, a Senior Consultant at RAND, in his book Reshaping National Intelligence for an Age of Information. (2) He traces the shift in the roles of the United States intelligence community from the Cold War to the present. During the Cold War, Treverton notes, the most pressing questions facing the intelligence community were "puzzles," i.e., questions "that could, in principle, have been answered definitively if only the information had been available." (3) He offers examples of Cold War puzzles: How big was the Soviet economy? How many missiles did the Soviet Union have? How much steel did the Soviet Union produce during the previous year? (4) These were all questions that could be definitively answered if one only had the right information.

Treverton differentiates these Cold War puzzles from what he calls "mysteries." A mystery is "a question that cannot be answered with certainty even in principle." (5) And he contends that today "most of the critical questions facing American foreign policy are mysteries." (6) He offers these examples: Will China continue to grow rapidly or will it fragment? Will reform and democracy take hold in the former Soviet Union? Where is South Africa headed? (7) These are mysteries because no one knows for certain what the answers will be. Unlike puzzles, which cannot be solved because of a lack of information, many mysteries these days ironically suffer from a surfeit of information. The problem is determining which parts of the mountain of available information are truly relevant.

This leads to another distinction: "Mysteries also differ from puzzles in that, by definition, puzzles have already happened," i.e., the Soviet steel has already been made and the missiles have already been built. (8) Mysteries are more subtle. Not only are they unknowable at this time, but their eventual answer is intertwined with events which have not yet occurred, such as what U.S. government policy will be next year.

Not everyone is equally adept at solving puzzles and mysteries. Malcolm Gladwell addressed this issue in a recent New Yorker article in which he characterized the Enron scandal as a mystery rather than a puzzle. (9) Gladwell notes that "Mysteries ... are a lot murkier [than puzzles].... [S]ometimes the question itself cannot be answered. Puzzles come to satisfying conclusions. Mysteries often don't." (10) He quotes Yale law professor Jonathan Macey that puzzles are "transmitter-dependent;" that is, their solutions turn on what information we are provided. Mysteries, on the other hand, are "receiver-dependent;" their solutions turn on the skills of the listener. (11)

What does all of this have to do with law? I would suggest that the distinction between puzzles and mysteries may describe a significant dichotomy in constitutional interpretation. Some justices view interpreting the Constitution as a puzzle--they seek a definite answer from the past by looking at information that will yield an objective answer. They see constitutional interpretation as "transmitter-dependent." Others see it as a mystery--they are less certain that history will provide a clear answer, and assume that they must use their own skills to process information from many sources to reach an answer. They see constitutional interpretation as "receiver-dependent." They believe that their answers will often be provisional rather than final.

This Essay contends that whether a justice views constitutional interpretation as a puzzle or a mystery has important ramifications not only with respect to the justice's own views in an individual case, but also in the way he interacts with other justices on a collegial court.

The Essay is divided into three parts. Part I offers an example of a particular constitutional provision--the Due Process Clause of the Fourteenth Amendment. While some justices view this clause as a puzzle, others see it as a mystery. It examines opinions by Justices John M. Harlan and Felix Frankfurter that champion the view that the content of the clause is not susceptible to definitive, mechanical answers. According to Harlan and Frankfurter, its meaning requires a large amount of information and experienced judgment. In the terminology of this Essay, they viewed the Due Process Clause as an ongoing mystery. The Essay then contrasts this perspective with Justice Hugo Black's famous dissent in Adamson v California (12) offering the definitive account of the "total incorporation" theory. Justices who followed this theory saw the Due Process Clause as having a fixed meaning as defined by the Bill of Rights. They saw the meaning of the Due Process Clause as the solution to a puzzle.

Part II turns from examining a specific constitutional provision as either a puzzle or a mystery to considering two current Supreme Court justices who disagree over whether constitutional interpretation as a whole should be considered mystery-solving or puzzle-solving. It looks at two books written by Justices Stephen Breyer and Antonin Scalia. Justice Breyer has set out his philosophy of interpretation in his book Active Liberty (13). In it, he presents a theory similar to what this Essay describes as a "mystery" approach to constitutional interpretation. On the other hand, Justice Antonin Scalia in his book A Matter of Interpretation (14) views constitutional interpretation more as an exercise in historical puzzle-solving.

Part III temporarily leaves both the United States and the Supreme Court to describe a famous confrontation between two philosophers that occurred over sixty years ago at Cambridge University. The two men were Karl Popper and Ludwig Wittgenstein. Wittgenstein saw philosophy as a discipline that should confine itself to finding solutions to what he explicitly referred to as linguistic puzzles." (15) Popper, on the other hand, advocated a much broader role for philosophy. He wanted philosophy to discuss what he termed "problems"--in many ways similar to what this Essay describes as "mysteries." The Essay then uses the Popper-Wittgenstein confrontation as a template for comparing and contrasting the puzzle-solving Scalia and the mystery-solving Breyer. It then examines the work of psychologist Philip Tetlock who has discovered personality differences between these two general types of thinkers. It finally suggests how the "puzzle/mystery" dichotomy might affect relations between justices on a collegial court.

1. THE CONSTITUTIONAL CLAUSE AS PUZZLE, THE CONSTITUTIONAL CLAUSE AS MYSTERY: THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT

   The Due Process Clause of the Fourteenth Amendment mandates that no State shall "deprive any person of life, liberty, or property, without due process of law." (16) After its ratification in 1868, the meaning of the clause became the focus of intense judicial scrutiny.

   The theory the U.S. Supreme Court used to interpret this clause for almost a century after ratification has been referred to as the "fundamental fairness" theory. One of the classic expositions of this theory of due process was written in 1961 by Justice John M. Harlan in his dissent in Poe v. Ullman. (17) Responding to Justice Hugo Black's argument that Fourteenth Amendment due process was exactly equivalent to all the specific guarantees of the Bill of Rights, Harlan argued for a more flexible interpretation:

   Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that.... it has represented the balance which our Nation.... has struck between.... liberty and the demands of organized society.... The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. (18) And just how does a justice impute meaning to the Due Process Clause? Harlan states that the meaning of any constitutional provision "must be discerned from [its] larger context." (19)

   And inasmuch as this context is not one of words, but of history and purposes, the full scope of the liberty guaranteed by [the Clause] cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out.... [Rather,] [i]t is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints. (20) Harlan concludes his discussion by noting that

   Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed. Though we exercise limited ... judgment, yet there is no "mechanical yardstick," no "mechanical answer." The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take "its place in relation to what went before and...