Brother Steve S. says he has a few "clarifying questions" for me.  First, he asks whether I regard precedent as a constitutional source of meaning.  My views on the authority of precedent in constitutional interpretation are embarrasingly orthodox:  I hold the view widely shared by liberals and conservatives, originalists and "living constitution" theorists, that precedent is considerably less wieghty in Supreme Court constitutional interpretation than it is in statutory interpretation.  Moreover, it is a source of constitutional meaning only secundum quid.  This is necessarily so in view of the fact that the Constitution can be misinterpreted even by its authoritative interpreters.  Of course, that does not mean that precedent cannot legitimately be cited and relied on in constitutional interpretation.  But its bindingness on the Supreme Court, as the court of last resort in federal constitutional interpretation, depends on a number of factors.  Like most constitutional theorists, I believe that a Justice should never vote to reaffirm a constitutional holding he believes to be incorrect merely because the Court held as it did.  He needs to have compelling reasons for favoring an erroneous precedent over the Constitution itself.  Of course, on the question of what count as compelling reasons there is disagreement, not only among academic constitutional lawyers, but also among Justices.  Clarence Thomas's standards are a more demanding than Antonin Scalia's and Stephen Breyer's.  So Thomas is more willing than Scalia and Breyer to overturn incorrect decisions (or, perhaps more accurately, he is willing to overturn more incorrect decisions).  For what it's worth, I incline in Thomas's direction.

Steve's second question concerns which Justices serving since the Warren Court meet the standards by which I would judge a jurist to be a faithful constitutionalist.  In particular he inquires whether there are any Justices who were appointed by Democratic presidents who would qualify.  He suggests Hugo Black as a possibility.  I think that's right.  I certainly have some criticisms of Black's juridprudence (I think he badly misinterpreted the Establishment Clause, for example), but his basic approach was constitutionalist, and he recognized that judicial usurpations of legislative authority (even in causes he himself favored:  see his dissent in Griswold v. Connecticut) are betrayals of the Constitution in whose name the usurping Justices purport to act.  Another Warren era jurist whose basic approach was constitutionalist (increasingly so as he gained seniority on the Court) was Byron White.  White, like Black, sometimes cast votes to uphold legislation that he would have voted against as a legislator or in a referendum.  Contrast that with the juridprudence of William O. Douglas or William J. Brennan.

Steve makes the following very interesting observation: "If I were to faithfully apply Robby’s standard (given my current understanding of it), I would conclude that the overwhelming majority of these justices are not constitutionalists in Robby’s sense. This would mean that Robby’s understanding of proper constitutional interpretation differs from that of the overwhelming majority of the justices over an extended period."  The most influential liberal constitutional theorist of our time, Ronald Dworkin, in a famous article entitled "The Moral Reading of the Constitution" claimed that Supreme Court Justices and most other jurists purport to adhere to the approach I support, while in practice going beyond the text, logic, structure and original understanding, as he thinks they in fact should do.  He exhorted the liberal Justices to stop claiming to be sticking to the traditional sources of constitutional meaning and start proclaiming the rightness of doing what they actually do.  Of course, they haven't taken his advice, and they won't.  That is hardly inexplicable.  After all, their legitimacy in the public mind depends on their claim that they are simply applying the law as written---not acting on the basis of moral or political judgments or convictions that they import into the enterprise of constitutional interpretation. So, with Dworkin, I would say to Steve that my approach to constitutional interpretation is fairly closely in line with what most Justices claim to believe.  My advice to the Justices would differ from Dworkin's, however.  He says to them, in effect, "start preaching what you practice"; I say to them, "start practicing what you preach."

There is no need for more than a brief comment on Steve's references to my "subjective understanding" of constitutional interpretation, and my "personal theory" of constitutional interpretation.  The terms "subjective" and "personal" in this context are merely rhetorical devices and do no analytical or argumentative work.  My opinions are my opinions.  Their being mine (which is all that "subjective" or "personal" can mean in this context) is neither here nor there.  I do not defend them by appeal to my own authority.  The question is whether they are sound or unsound, right or wrong.  If Steve thinks they are unsound, he should state the reasons for his opinion (which, qua his, will be "subjective" and "personal" in the same analytically unimportant sense).

In 2004, I gave one of the responses to Justice Stephen Breyer's Tanner Lectures at Harvard---lectures later published as a book entitled "Active Liberty."  To give Steve S. and anyone else who might be interested a fuller sense of why I believe what I do about constitutional interpretation, here are my comments:

Continue reading