Does constitutional theory matter?
According to Stanley Fish, no:
Does it matter if judges declare themselves to be adherents of the philosophical approach or the living constitution approach or the intentionalist approach or no approach. The urgency and occasional stridency of the debates in this area suggest that it matters very much because a judge’s interpretive theory will strongly influence, if not dictate, his or her decisions, won’t it? No. . . . “Most of the time,” said one judge, “you reach the result that’s fair and then build your thinking around it.”
The result is reached not by invoking some large theoretical vision and then tracing out its implications, but by situating the present case in a tradition of cases and putting to the facts questions that have become a central component of that tradition. Is this an instance of unjust enrichment? What is the proximate cause? Do we here apply rational or strict scrutiny? Have the wishes of the testator been clearly expressed? The first thing a judge does is not reach for a theory, but reach for the storehouse of precedents and formulas and three- or five- or ten-part tests and use them to decide under what legal rubric the case is to be placed and analyzed. That analysis will be systematic — it will follow a check list of mandated inquiries — but it will not be theoretical.
In fact, interpretation is not a theoretical act; it is a practical and empirical one. While theoretical formulations may, as I have acknowledged, be components of an opinion, they do not generate it. They make cameo appearances in a process whose main engine will be institutional and procedural. And that is what I meant when I said up top that the debates about constitutional interpretation have no practical consequences. . . .
In the end, the only way to tell the difference between conservative and progressive judges may be the Justice Potter Stewart way. You know them when you see them, and when you know them it will be because of the decisions they hand down, not be because of any interpretive theory they may profess, even one they loudly proclaim.
1 Comments:
This is a large topic, but in my view Professor Fish's view is decidedly wrong.> He usually never bothers to define the term "theoretical" and therefore one is forced to wonder whether he protestations against theory are simply based on his idiosyncratic conception of what "theory" means if his has a conception at all.
However, is the countermajoritarian (or counter-democratic problem), judicial activism and restraint, the role of courts in a republican democracy, the proper understanding legislative supremacy, and so forth theoretical concepts? Judges and coruts often derive their opinions from these conceptions. And as such, they have direct practical consequences. (Fish, to my knowledge, indicates, but never defines either "practical" or "consequences") effects. For example, had there been an additional Justice who consistently believed in judicial restraint, we would be currently bidding farewell to Al gore not George W. Bush. Of course, Fish might very well classify "judicial restraint" as a practical, not a theoretical concept. But that just shows, in my view, he generally "wins" his point by idiosyncratically redefining "theoretical" and "practical", and as such his position is far from illuminating.
Two qualifications: (1) I have not yet read the Times article to which Jim refers and (2) I respect and have learned from Fish. But his recharacterization of the key terms in his polemics becomes more tedious than illuminating. Does constitutional theory matter? Well, matter to whom? In what circumstances? What counts as the "theory" and what counts as "mattering." Certainly a comprehensive theory of constitutional law, conceived of as an algorithm, will not dictate constitutional interpretations. But that--a refined, pristine, white-collar theory--is not the only kind of theory or theoretical factor available.. Messy blue-collar-theories attempting to establish a connection between the Constitution and courts or show when the elected branches are better suited to decide constitutional questions than the courts have practical consequences. Such consequences derive from blue-collar theories and not only do these theories exist and have practical consequencess, but I've actually seen them at work
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