Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.

Vol. 9, No. 3; Fall 2003

Law on Shifting Sand

Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations, by Daniel A. Farber and Suzanna Sherry. University of Chicago Press, 2002. xi + 208 pgs.

This is a pernicious book. It comes to us in false pretenses. Farber and Sherry profess themselves opponents of "grand theorists" in constitutional law. These theorists endeavor to found American constitutional law on "one very simple principle," in John Stuart Mill’s phrase. Each of the six theorists our authors discuss has a different idea of the nature of that simple principle. Some, including Robert Bork, Antonin Scalia, and Richard Epstein, are conservatives or libertarians; the others, Akhil Amar, Bruce Ackerman, and Ronald Dworkin, are liberals or populists. "Viewing themselves as Luther-like reformers, they seek to remake a corrupted church from the foundations upward. Like Luther, each claims that a pure vision of the Constitution requires a far-reaching reconceptualization of existing institutions" (p. 4).

Farber and Sherry reject the whole foundationalist enterprise of these writers. Instead, constitutional interpretation should be pragmatic, taking into account a wide range of factors that cannot be fully set forward in a deductive system. In accord with their own method, they do not offer a "knockdown" deductive argument against grand theory. Instead, they offer detailed responses to each of the six writers.

On the surface, Farber and Sherry’s project sounds promising. Many readers will find in it echoes of F.A. Hayek’s powerful campaign against "constructivist rationalism" and his preference for the common law over legislation. (Our authors make no reference to Hayek.) Furthermore, their particular criticisms of the theorists, though sometimes mistaken, are often insightful.

Why, then, do I call their book pernicious? For this reason: their defense of common sense and pragmatism is not what it seems. They exalt into an unchallengeable absolute the current jurisprudence of the Supreme Court. You can disagree with particular decisions of the Court: the authors themselves deplore the Court’s interference in the 2000 presidential election. But if you substantially challenge the whole body of Supreme Court case law, you are a nasty "foundationalist" and opponent of the common law. Here precisely is the pernicious element of the book: by stipulative definition, the authors equate radical and arbitrary decisions of the Supreme Court with common law decision-making.

One claim in particular arouses our authors to fury. If a theorist maintains that the Constitution has a discernible original meaning that the Supreme Court has distorted, Farber and Sherry at once begin to fibrillate.

Robert Bork maintains exactly this thesis, and they must at all costs refute him. Bork claims that Supreme Court justices often decide cases according to their political or ethical views, instead of the plain meaning of the Constitution. Where does the Constitution say anything about abortion or, more generally, institute a "right of privacy"? The fact that the Constitution is silent on these matters has not impeded the Court in such cases as Roe v. Wade from imposing its own legislative agenda.

Farber and Sherry claim that Bork’s portrayal of his opponents is false. Defenders of originalism "fall prey to the fallacy that there is no middle ground between blind adherence to originalism and purely political decision-making. . . . But judges do find middle ground, negotiating the treacherous territory between fanatical obedience to the dead hand of the past and unconstrained discretion to implement their own political will" (p. 14).

It is not Bork but his critics who here fall into fallacy. The originalist claim is that judges ought to be bound by the meaning of the Constitution it is their mandate to interpret: they ought not to engage in "creative" jurisprudence. But it does not follow from the originalist claim that these judges lack any rationale for their decisions. Just the point of the criticism is that they should not concoct their own formulas for interpretation, in which original intent figures as but one of several grounds for judgment. Bork does not deny that there is a "middle ground": he thinks that judges should not occupy it.

But, Farber and Sherry say, the quest for original meaning is futile. Are there not frequent disputes about the original meaning of various sections of the Constitution? How then can someone claim that there is an objectively determinable meaning to the text? "After thorough and careful research, scholars disagree on the original meaning of practically every important constitutional provision. Did those who adopted the Establishment Clause of the First Amendment . . . mean to bar all government aid to religion, or only government preference for particular religions. . . . How much protection did the Second Amendment mean to give personal gun ownership. . . . The historical record is not indeterminate, but it rarely points unambiguously to a single answer to questions as complex as these" (pp. 14–15).

The problems of originalism, our authors aver, are even more far-reaching. We are supposed to follow the original meaning of the text, but "how do we define ‘the framers of the Constitution’ whose understanding we are to consult?" (p. 15). Our authors list various possibilities, including the members of the Constitutional Convention and the delegates to the state ratifying conventions.

Must we, as a result of these considerations, abandon strict construal of the Constitution? I do not think so. True enough, the meaning of various clauses is disputed; but it hardly follows that all these interpretations are equally good. The mere fact of difference of opinion poses a problem: it does not show that the problem lacks a solution. Does the fact that many legal theorists disagree with Farber and Sherry’s pragmatic style of interpretation suffice to show that this position is false? I do not think our authors will say that it does.

Further, by failing to make a basic distinction, the authors exaggerate the difficulty of discerning original meaning. Strict constructionists try to find the plain meaning of the text: they are not concerned with the private motives of the drafters or ratifiers of the Constitution.

Our authors will no doubt respond that, even taking this into account, plenty of difficult interpretative issues remain. I readily concede this, though I think the difficulties can be pared down in yet another way. Are not many differences of interpretation the product of law professors anxious to import their own agendas into the Constitution? I venture to suggest, e.g., that only someone strongly opposed to private ownership of guns could think that the Second Amendment’s "right to keep and bear arms" leaves individuals with guns totally at the mercy of the federal government.

Once more, though, let us grant our authors that not all issues of interpretation are simple. Even if we cannot always determine the correct original meaning, do we not know enough to eliminate some purported interpretations as blatantly false? Who could possibly think that from a strict construction of the Constitution, one can derive a right to abortion?

Farber and Sherry appear to have forgotten their own strictures about indeterminacy, when they berate Bork on another issue. They make a strong argument that on originalist grounds, the Fourteenth Amendment does not bar segregated state schools. Thus, originalists should hold that the Supreme Court erred in Brown v. Board of Education (1954). "First, the historical evidence strongly suggests that the nineteenth-century framers intended to protect only civil or legal equality, not social equality. In other words, while they wanted blacks to be able to enter into contracts or to own property, they never expected blacks to become social equals with whites . . . education was part of social equality, and was thus excluded by the rights guaranteed by the Fourteenth Amendment" (p. 23).

Evidently original meaning is not always mysterious. Why have our authors here deserted to the other side? In their efforts to score a point against Bork, they have dropped their guard. To them, it is inconceivable that anyone would today oppose Brown. If, then, they can show that originalists should reject Chief Justice Warren’s ukase, they think that they have decisively overthrown that theory of interpretation. Surely the effort to find original meaning can at most be only a part of a judge’s task: has not the wisdom of Earl Warren and his successors taught us this?

They have here a good ad hominem point against Bork, who wants inconsistently to uphold both originalism and Brown. But, against their intentions, they have conceded too much to the originalist enemy; and their main argument against strict construction fails.

As they assail the various constitutional theorists, Farber and Sherry continue to use variants of the same odd argument they have employed against Bork. Originalism leads to rejection of Brown; this result is unacceptable; therefore originalism is false. Not content with their "triumph" over the inconsistent Bork, they generalize their argument in this way: Attempt X to take the Constitution seriously has the consequence that many of the social policies of the federal government are unconstitutional; this result is unacceptable: therefore X is false.

Justice Scalia takes seriously the provision of the Constitution that vests the power to enforce law in the executive branch. He accordingly held unconstitutional part of the Brady Act, a gun control measure: "Article II of the Constitution, according to Justice Scalia, provides that only the president (and his underlings) shall ‘take care that the laws be faithfully executed.’1 The Brady Act transferred this authority to thousands of local law enforcement officials. . . . Justice Scalia concluded that this ‘unity [of the executive] would be shattered, and the power of the President subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring state officials to execute its laws’" (pp. 32–33, footnote number mine).

Our authors gasp in horror. If Scalia is right, then as "one commentator observed, this ‘unprecedented argument’ potentially ‘threatens the legitimacy of many administrative agencies’" (p. 33; the commentator was Evan Caminker). We cannot have that, can we?

The authors’ faith in government is at times touching. Richard Epstein has elaborated a well-known theory of "takings;" he takes a severely limited view of the conditions under which governmental seizure of property for its own use is constitutionally permissible. Readers will not be surprised to learn that Farber and Sherry respond that the government has always regulated property in a way inconsistent with Epstein’s theory. But one of their remarks shows just how far they go in their uncritical adulation of government: "Even before the American Revolution, governments regulated land use, licensed peddlers and taverns, controlled prices for bread, and engaged in other economic regulations" (p. 65).

To our statist authors, then, a constitutional theory fails if it is inconsistent with governmental action in the colonial era! One wonders whether Farber and Sherry would hold that state laws repudiating debt do not violate the prohibition of "impairing the obligation of contract," on the grounds that states before the adoption of the Constitution sometimes passed such laws.

Sometimes, when their statist views do not preoccupy them, Farber and Sherry make useful points. I found their criticism of Akhil Amar’s "intratextualist" analysis of free speech cogent. Amar maintains that interpretation of a word in the Constitution must take account of all uses of that same word in the document. The First Amendment prohibits Congress from abridging "the freedom of speech." Because "speech" also appears in the Speech and Debate Clause about congressional discussion, the First Amendment is limited to protection of political speech; commercial speech is excluded from the scope of the Amendment.

Our authors aptly remark: "it seems at least questionable to equate the protections given legislators with the protections given the general citizenry, since they serve different roles in the constitutional scheme" (p. 78).

The authors cloak their statism in common-law language; and here to my mind lies the pernicious aspect of their book. To grand theory, they oppose common-law jurisprudence: "American legal pragmatists have defended true common law reasoning, as practiced by the great judges in our legal tradition. . . . The fact is that English courts have been using this method since the Middle Ages, and the Supreme Court has been deciding cases without the benefit of a grand theory since it issued its first opinion" (p. 154).

Contrary to Farber and Sherry’s misleading suggestion, the controversial decisions of the modern Supreme Court do not follow English common law practice. The court often enacts its own views into law, by "discovering" broad meanings of various provisions of the Constitution. By contrast, judges who follow traditional common law endeavor to deal with particular cases, following precedent to the greatest extent possible.

When the Supreme Court, in its decision in Lucas (1964), applied its concept of democracy to require states to apportion both houses of the legislature according to population, it did not use common law reasoning. Quite the contrary, it rejected traditional practices and imposed its own theory of government on the states. In Brown, Chief Justice Warren used the work of Gunnar Myrdal and other social scientists to overturn school segregation. Does this count as common law reasoning?

Farber and Sherry indict the "grand theorists" for distortion: they are alleged to subordinate the Constitution to their own "foundational" principles. The authors’ case against these theorists seems to me often unfounded. But even if it were correct, at least these writers are trying to discover the meaning of the Constitution. And if, at times, their theories distort the Constitution, at least they are trying to produce a consistent theory.

The Supreme Court, by contrast, often enacts, in slapdash fashion, its own social views into law, with little pretence of attention to the words of the Constitution. This our authors deem common law reasoning, for reasons I cannot fathom.

1Is it only according to Scalia that Article II says this?


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