There is much of value in Fish's Times piece, but unfortunately, there's much that's problematic. Fish is right, in my view, that the Dworkinian approach to constitutional interpretation rewrites the constitutional text; it doesn't interpret it. (I make a similar, but stronger, argument against Dworkin's constitutional jurisprudence in the second chapter of my book, Constitutional Revolutions.) Fish correctly distinguishes between "seeking the meaning the framers intended" and "seeking the best interpretation of the Constitution." The former sticks to authorial meaning, while the latter seeks "to satisfy some extra-authorial standard, the standard of what someone -- but not the framers -- regards as morally and philosophical best. An interpreter who does that will no longer be engaged in the effort to determine what some agent or agents mean by these words. Instead, he or she will have traded in that humble task for the more exalted task of giving moral guidance to the world." Well, this might sometimes be so, but not if the interpreter discovers the moral guidance in the framers' text. That, of course, is the issue between Fish and Dworkin's approach to constitutional law.
Significant problems arise when Fish inveighs against the practical efficacy of "constitutional theory." Curiously, Fish never bothers to specify just what he means by "constitutional theory." Consequently, we are forced to wonder whether his protestations derive from some insight pertaining to the relationship between theory and practice or rather whether they are simply based on his own idiosyncratic--and undefined--conception of constitutional theory, if he has such a conception at all. For instance, does the notion of a judicial decision being counter-majoritarian (or counter-democratic) rely on any theoretical elements? What about "judicial activism" or "judicial restraint"? Judges and courts often fashion their opinions to embrace or avoid one of these conceptions. And as such, these theoretical constructs have direct practical consequences. (Besides leaving "constitutional theory" undefined, Fish never explains "practical consequences" or what it might be like for theoretical factors to be involved in generating judicial decisions.) But carefully consider, had there been one more justice on the Court who believed in judicial restraint, we might now be bidding farewell to Al Gore, not George W. Bush. Of course, Fish might reject the supposition that "judicial restraint" has a theoretical dimension. But that simply underscores the necessity for Fish to say what he means by "constitutional theory." It also may reveal the strategy behind his argument. Smuggle into the argument an idiosyncratic re-description of some critical term and viola, a Fishian victory ensues, or should I rather say a fishy "victory" ensues. (Ooooh!)
The peculiarity of Fish's position can be brought out in the following. Fish once used an incident involving the pitcher, Dennis Martinez, and his manager, Earl Weaver, as a model for his own, may I whisper the term, "theory." According to Fish when a reporter asked Dennis Martinez what his manager, Earl Weaver, had said to him just prior to one of Martinez' starts, Martinez replied: "He [Weaver] said, 'Throw strikes and keep 'em off the bases' . . . and I said, 'O.K.'" Martinez continued: "What else could I say? What else could he say?'" Fish's point in using this bewildering example is that when playing a game, there's nothing more to say. You can play or not. No theory or advice is needed or possible. The coup de grace is that "playing [the game] has nothing to do with following words of wisdom, whether they are Weaver's or Aristotle's, and everything thing to do with already being someone whose sense of himself and his possible actions is inseparable from the kind of knowledge that words of wisdom would presume to impart." In short, after learning to play baseball, going out to play is just doing what comes naturally. And doing what comes naturally doesn't need coaching or a theory.
But if games are rule-structured activities, and different people exhibit different abilities in following rules, why wouldn't a coach be a benefit, even perhaps a necessity? In Fish's view, if Weaver were "to enumerate the possible situations that might arise during the game and suggest strategies to deal with those situations, Martinez would be understandably incredulous and justifiably resentful." Has Fish ever played any organized team sports? What does he think coaches do in timeouts or when managers visit the mound without removing the pitcher? Suppose Weaver told Martinez to keep in mind that he's developed a hitch in his wind-up and should employ the strategy the pitching coach tried to teach Martinez in practice. Or suppose Weaver told Martinez that his splitter didn't seem to be working well when he was warming up. Maybe he should use it only sparingly. Incredulity? Resentment? Why? Though it's difficult to appreciate Fish's reason for this bizarre view, I'll bet it has something to do with theory and theory's relationship to practical consequences. Somehow whatever advice Weaver gave Martinez would be superfluous; it would have no practical effect. Martinez knew everything he needed to know and now his task was to pitch. Advice is irrelevant, even if the advice itself was also doing what came naturally.
Fish's piece is permeated with this mystifying commitment to an idiosyncratic conception of "constitutional theory" and what counts as a theory mattering. Certainly, a comprehensive theory of constitutional law, conceived of as an algorithm, might not yield judicial decisions. But that a refined, white-collar, algorithmic, theory won't generate judicial decisions, doesn't mean that other kinds also will fail. A blue-collar theory or theoretical factor, for instance, directing courts to defer to the elected branches in these and those circumstances might influence, even in some cases compel, judges to decide cases in a certain predictable manner. Fish is probably right that white-collar theories of practical reasoning might not exist, but blue-collar theories having practical consequences certainly do. I know because I've seen them work.