Is most writing about constitutional law and theory (in the United States, but perhaps also in Canada) “intellectually corrupt”? In a post on the Bleeding Heart Libertarians blog, Jason Brennan, a philosopher and economist from Georgetown, says that it is. But, while his description of constitutional scholarship is, unfortunately, right, his explanation and evaluation of the problem seem too simplistic to me.
The problem with constitutional scholarship, says prof. Brennan, is
that almost everybody does the following:
1. Start with a political philosophy–a view of what you want the government to be able to do and what you want to the government to to be forbidden from doing.
2. Take the Constitution as a given.
3. Reverse engineer a theory of constitutional interpretation such that it turns out–happily!–that the Constitution forbids what you want it to forbid and allows what you want it to allow.
Academic arguments to the effect that something desirable is, unfortunately, unconstitutional, or that something undesirable is, alas, constitutional, are too few and too far between. Scholarship becomes indistinguishable from legal or political argument (these two being the same thing). “But,” says prof. Brennan, “academic legal theory is supposed to aim at truth. Legal theorists are not–or should not be–fighting political battles.”
If a scholar in another field – say in the interpretation of philosophical texts – acted like constitutional scholars act in the interpretation of legal text, we would think them “intellectually corrupt.” So why is it ok for constitutionalists to behave this way? Prof. Brennan claims that
[t]he only real defense of this practice I’ve seen is one that starts by arguing that the law is supposed to be normative and authoritative. However … –the case for legal positivism seems so strong that … this [does not seem] plausible.
In his own view, which he labels as “legal positivist and legal realist,” “laws [are]sociological phenomena, and whether a law is good or just is a contingent fact.” The constitution means what it means, not what whoever is reading it would like it to mean.
Prof. Brennan’s description of constitutional scholars as fighting political battles certainly rings a bell. His post was written in the context of the litigation surrounding president Obama’s healthcare reform, and academic commentary on it was, indeed, largely marked by the commentators’ ideology. But this phenomenon is very widespread. Indeed, what I have seen and heard at NYU suggests that some academics, at least, though don’t know how many, are open about regarding ideological acceptability as a criterion for assessing the value of a theory.
But is constitutional theory tainted by ideology because legal academics are intellectually corrupt, or because they are completely misguided about legal philosophy and fail to recognize the overwhelming arguments in favour of legal positivism, as prof. Brennan suggests? I think that things are much more complicated.
The problem with his explanation is that it assumes that there is a truth of the matter about constitutional interpretation, which a constitutional theory should uncover. But there is no objective truth about what a constitution means. To be sure, some constitutional provisions are clear enough, and one would be hard-pressed to find ideological interpreters disagreeing about their meaning. Many in the United States, especially on the political left, think that the equality of states’ representation in the Senate is morally indefensible, but no left-wing academic will say that the constitution doesn’t require it. But much of the constitution is not clear. Nor is it obvious how the meaning the less clear provisions is to be ascertained. It is possible, I think, to exclude some constitutional interpretations, even of less clear provisions, as quite obviously wrong. Whatever the prohibition on “cruel and unusual punishment” means, it surely makes the imposition of torture as a punishment unconstitutional. But what about death penalty? Different people can have different, reasonable, answers to that question, and they can – indeed they must – argue about which of these reasonable answers is better.
Law, in Jeremy Waldron’s words, is an “argumentative practice.” We argue about what this or that legal rule means – and that is an inextricable part of what law is, not a sad accident. This is especially true of constitutional law, for a number of reasons. One is simply that the stakes it involves are very high. What the state can and cannot do matters, sometimes at the level of policy, sometimes at the level of morality if not in the day-to-day lives of most people, and sometimes both. Another reason for the special importance of disagreement and argument to constitutional law is that constitutional texts are more vague than most legal sources. This is partly due to the need to secure agreement, often a super-majority agreement, on a text despite disagreements over specific rights, and to make that agreement last for decades and even centuries. This is also partly due to the fact that, contrary to what prof. Brennan seems to think obvious, much law – and certainly constitutional law – presents itself as morally good, and quite deliberately speaks in morally loaded terms. The third, related, reason why argument is so important in constitutional law is that it must somehow reconcile an arguably even greater number of competing values than other areas of the law. Democracy, federalism, Rule of Law, separation of powers, and protection of individual rights pull it in different directions. A constitutional text is, at most, a partial arbitrament between these (and other) competing values; it reflects them all, to some extent, and interpretations favouring one or another are bound to be plausible.
And here is where political ideology, which helps order these values, comes in. Constitutional theory, like any legal theory, is different from scientific theory, because it is in some measure argument. And argument about constitutional theory involves values, and hence ideology. It is fair, I think, to call it intellectually corrupt if it is limited to values and ideology and ignores legal sources. Any scholarship that deserves the name must be in touch with the reality it describes, explains, or critiques, so constitutional theory must, so far as possible, be grounded in constitutional text and precedent. But that will not make it free of ideology.
That said, it should still be possible for a scholar to acknowledge that his or her preferred constitutional interpretation is, if not incorrect by some (nonexistent) purely objective standard, unlikely to be adopted by courts (or other constitutional actors). One should strive to be clear-eyed about such things, and admittedly, legal academics often are not. To that extent, their scholarship suffers from a serious weakness.