Logic and Empathy

Posted on Categories Constitutional Interpretation6 Comments on Logic and Empathy

I might have commented on Ed Fallone’s post regarding the role of logic in Supreme Court decisions, but there is nothing in the post with which I disagree. But I do think that it raises two additional issues, one of which has been the subject of much recent popular conversation.

President Obama’s stated preference for judges with “empathy” has been a jumping-off point for a variety of conservative versus liberal debates on constitutional interpretation. Folks who tend to think like I do on these matters have roundly criticized the President for suggesting that judges ought to abandon the rule of law in favor of preferred results.

But the real debate, in my view, is not about whether empathy is a desirable quality in people and judges, but what role empathy ought to play in, to borrow from Ed, seeking “the logical consequence of undisputed first principles, the overall structure of the document, and prior interpretations.” Continue reading “Logic and Empathy”

The Importance of Being Logical

Posted on Categories Constitutional Interpretation3 Comments on The Importance of Being Logical

I went to see the Star Trek movie this past weekend with my twelve-year-old son, Andrew.  He was the one dressed in full Klingon regalia (true story).  The star of the movie is undoubtedly everyone’s favorite Vulcan, Mr. Spock.  As you will recall, Spock is the character who always insists on behaving logically.  Seeing the movie made me reflect on legal education and the importance of being logical.

Teaching Constitutional Law, it is easy to get wrapped up in ideological conflicts and to overlook the key role that logical syllogisms play in the construction of Supreme Court opinions.  Certainly the students do not immediately grasp the connection between formal logic and Supreme Court decision-making.  They begin the semester with the assumption that the members of the Court merely vote their ideologies.  As the students assimilate the various interpretive theories for reading the text, such as textualism or intentionalism, they flirt with the possibility of deriving the meaning of the Constitution in an objective manner.  However, the inconsistent manner in which the members of the Court employ these interpretive methods soon frustrates a fair proportion of the class.  Some students begin to drift towards the view that the decisions of the Court are merely bald assertions of political power, while others begin to flirt with nihilism and the belief that the entire interpretive enterprise is arbitrary.

My personal view is that the United States Constitution is a political document, constructed via compromise between various interest groups and left intentionally ambiguous in several key respects.  Continue reading “The Importance of Being Logical”

Tribe on the Use of Foreign Law

Posted on Categories Constitutional Interpretation4 Comments on Tribe on the Use of Foreign Law

In an earlier post, I outlined the basic themes of Laurence Tribe’s The Invisible Constitution.  One specific section that was of particular interest to me was Tribe’s defense of the use of foreign law in constitutional interpretation.  I run into this controversial practice every spring when I teach Atkins v. Virginia, 536 U.S. 304 (2002), and Roper v. Simmons, 543 U.S. 51 (2005).  Interpreting the Cruel and Unusual Punishment Clause of the Eighth Amendment, Atkins banned execution of the mentally retarded, while Roper outlawed the death penalty for juvenile defendants.  In both cases, the majority drew intense criticism for citing foreign law in support of its holding.

Based on Atkins and Roper anyway — I am admittedly not as familiar with some of the Court’s other uses of foreign law — I think that Tribe is right about at least two things. Continue reading “Tribe on the Use of Foreign Law”

Restrained Judicial Activism

Posted on Categories Constitutional Interpretation, Judges & Judicial Process1 Comment on Restrained Judicial Activism

In contemporary legal discussion, “judicial activism” is roundly condemned.  This behavior refers generally to any instance in which a court’s opinion is the product of the court following its personal policy preferences instead of the commands of the law.

The favored behavior is “judicial restraint,” which is usually defined by the values of “originalism” (deference to the original intent of the lawgivers), “textualism” (respect for the language of laws), “self-restraint” (respect for precedent) , and “separation of powers” (deference to the prerogatives of democratically elected legislative bodies and/or the States).

The foundations of “judicial restraint” are originalism and textualism.  “Self-restraint” and “separation of powers” are secondary values. Precedent and legislative enactments are binding and commendable only when they are consistent with the original intent and text of higher law, which is not always the case. 

The words of any law (statute or a decision) are the best evidence of its meaning because it is presumed that the law’s Framers picked those words to efficiently describe what they intended the law to require or prohibit.  (For the sake of convenience I use “Framers” to refer to courts rendering a decision or legislative bodies drafting a statute.)  “Textualism” demands respect for the clear meaning of these words.  Unless there is some unavoidable flaw or ambiguity in the drafting which makes the intent of the Framers incomplete, incoherent, or ambiguous, courts should treat laws as meaning what they say they mean.

Textualism has its limitations.  Continue reading “Restrained Judicial Activism”

More Thoughts on Marriage

Posted on Categories Constitutional Interpretation, Human Rights, Political Processes & Rhetoric, Privacy Rights2 Comments on More Thoughts on Marriage

Sean Samis has posted a lengthy response to my post expressing “different” thoughts on the Iowa decision on same-sex marriage. I thank him for his response and, while I think he has got it wrong, he’d get a great grade for his efforts in my Law & Theology seminar or Wisconsin Supreme Court class and so he deserves a response. Given the length of the remarks that I am about to make, I once again thought it better to post separately.

I have come to believe that the underlying presumptions of proponents and opponents of same-sex marriage are almost ontological in their differences about the nature of the law and the way in which it shapes and is shaped by society. We are all hard-wired now days to think of constitutional law as, largely, the mediation between the “rights” of individuals and the “demands” of the state. The former are seen as radically subjective, while the latter are the sum of their legal incidents. The former are not to be judged, and the latter are often examined for their “fit” without regard for their interaction with extralegal norms and institutions.

We also are steeped in an almost eschatological view of the law in which we see the claims of some new “discrete and insular minority” as analogous to those advanced during the civil rights movement and somehow validated by an Hegelian move toward “equality” and progressivism. Continue reading “More Thoughts on Marriage”

Some Different Thoughts on the Iowa Supreme Court Marriage Decision

Posted on Categories Constitutional Interpretation, Family Law1 Comment on Some Different Thoughts on the Iowa Supreme Court Marriage Decision

I wanted to respond to Mr. Samis’s thoughtful post on the Iowa marriage case and thought it’d be easier to do so by a separate post than by a comment. It is hard to engage such a complicated and emotionally charged question within the confines of a blog. Although I have generally found both my allies and opponents on the question to be gracious and respectful, I am also aware that this is an issue that can degenerate into dueling allegations of bad faith — of, from one side, accusations of “hate” and “prejudice” and, from the other, charges of “licentiousness” and “irreligion.” I also know that to raise the conservative position in the academy is like launching an offensive deep behind enemy lines. You may soon find yourself surrounded.

But I am finishing (with Daniel Suhr ’08) a paper on interpretation of marriage amendments using Wisconsin as a case study, so the topic is much on my mind.

First, a disclosure. I was a public proponent of Wisconsin’s marriage amendment and based my case on wholly secular grounds without reference to the morality of same-sex relationships. While I appreciate that my church believes such relationships to be morally impermissible, I am not persuaded by that judgment.

Nor do I disagree with Mr. Samis that gay and lesbian relationships, just as heterosexual unions, may — hopefully, will — exhibit the loving and supportive characteristics that he observed between his friends. I have observed the same in my own circles.

But where proponents and opponents of genderless marriage part ways is on the question of whether this resolves the matter. The latter focus not on merely on what may be similar about same-sex and opposite-sex intimacy, but also on what is distinctive. Continue reading “Some Different Thoughts on the Iowa Supreme Court Marriage Decision”

Virtual Book Club: Constitutional Historians and Constitutional Theorists

Posted on Categories Constitutional Interpretation3 Comments on Virtual Book Club: Constitutional Historians and Constitutional Theorists

Michael O’Hear is to be applauded for his concise summary of Professor Tribe’s argument.  Thanks to Michael, the rest of us can dispense with the need to explain to the reader the contours of Professor Tribe’s thesis.

As I read Tribe’s book, I was reminded of a story told to me by a friend who was in William Nelson’s Constitutional History seminar at Yale in the mid-1970’s.  Nelson apparently was arguing at that time that the ratification of the Constitution of 1789 actually made very little difference, and had the Articles of Confederation remained in effect, that document would have been interpreted to mean pretty much the same as the Constitution that replaced it came to mean.

Of course, I wasn’t in the class, but I take it that Nelson believed that the constitutional norms that emerged in post-1789 America would have developed with or without any specific constitutional text, and whatever written constitution there was would have been interpreted so that it would embrace those values.  In the alternate timeline it might have been necessary to amend the constitution a bit more frequently than actually occurred, but I suspect that this point is probably correct.

To me, Tribe’s argument that constitutional norms exist independent of the text of the Constitution seems only another variant on this argument.

In fact, the manner in which he presents the argument illustrates a fundamental difference between constitutional historians and constitutional scholars. Constitutional theorists and constitutional lawyers operate within a paradigm of constitutional argument that assumes that the precise nature of arguments matter and that judicial decisions can be influenced by the logic of constitutional analysis.

Constitutional historians, on the other hand, stand outside the paradigm and simply try to understand and to explain what is going on.  Historians have long realized that the paradigm is quite self-serving — it creates a role for the constitutional advocate and the constitutional theorist — and that its fundamental premises ultimately fail to jibe with the reality of judicial decision-making.  Historically, judges have been much more likely to reach results in constitutional cases through the felt imperatives of “constitutional” values than by being persuaded by logically constructed arguments or imaginative textual interpretations.

Every now and then it dawns on a constitutional theorist that the primary paradigm doesn’t really make any sense, and he reports it to his colleagues as a revelation.  Which it isn’t, at least for those who have studied history.  Constitutional historians make this point over and over.  Richard Beeman’s new book on the Constitutional Convention wonderfully illustrates the historical contingency of everything associated with the Constitution of 1789, whether it be the text itself or the ideas that were passing through the brains of various Founders.  The point is not that constitutional norms are meaningless or purely fungible.  Rather, constitutional meaning is an organic concept that evolves over time and which is subject to a variety of restraints.  For some reason, constitutional scholars and constitutional lawyers never seem to catch on.

The problem, of course, is that constitutional advocates are required by the system in which they operate  to argue in terms drawn from inside the paradigm.  Even if you believe that judges decide cases on the basis of culture and common norms and that history rather than logic dictates the resolution of most constitutional disputes, you cannot say that to the judge.  The lawyer has to at least go through the motions of a traditional text-based constitutional argument.  It is as though we tell ourselves one story in private but require that a different one be told in public.

As law professors, we have to train our students in the art of making acceptable constitutional arguments.  But we should be honest and tell them that the content of constitutional arguments and constitutional truths are two entirely different matters.

Virtual Book Club: Tribe on the Invisible Constitution

Posted on Categories Constitutional InterpretationLeave a comment» on Virtual Book Club: Tribe on the Invisible Constitution

As announced earlier this semester, several faculty members have been reading Laurence Tribe’s The Invisible Constitution.  I hope that we will be having a series of posts and comments on the book.  I have just finished reading it.  A few very general reactions will be offered here.

Tribe’s interest is in a set of principles that have come to be accepted as constitutional in nature, but that appear nowhere in the Constitution’s written text.  He lists as examples:

  • Courts must not automatically defer to what elected officials decide the Constitution means.
  • Government may not torture people to force information out of them.
  • In each person’s intimate private life, there are limits to what government may control.
  • Congress may not commandeer the states as though they were agencies or departments of the federal government.
  • No state may secede from the Union.  (28)

In developing his thesis that the Constitution contains such invisible “dark matter,” Tribe implicitly situates himself in opposition to the formalist school of constitutional interpretation, which emphasizes the written text of the Constitution and historical documents from the framing era that shed light on the meaning of the text.  Tribe instead understands the content of the Constitution to evolve over time, even without formal amendment of the text.  Continue reading “Virtual Book Club: Tribe on the Invisible Constitution”

Progressive Originalism

Posted on Categories Constitutional Interpretation1 Comment on Progressive Originalism

The March 14 edition of the Wall Street Journal carries an interesting story regarding efforts to use “progressive originalism” in upcoming precedent-potential cases. The Journal reports that the Center for Constitutional Accountability, a progressive public interest law firm run by Doug Kendall, and several liberal-leaning legal academics have undertaken a sustained effort to revive the Privileges or Immunities Clause of the 14th Amendment. The Journal reports:

So-called progressive originalism departs from the conservative strain by shifting focus from the 18th-century constitutional text to the three Reconstruction amendments ratified after the Civil War. . . . Viewed through the Reconstruction prism, the “Constitution turns out to be way more liberal than conservative,” says Yale law professor Akhil Reed Amar, a leading proponent of progressive originalism. . . . By applying methods blessed by conservatives to the neglected texts and forgotten framers of the Reconstruction amendments, liberals hope to deploy powerful new arguments to cement precedents under threat from the right and undergird the recognition of new rights.

The Journal’s report struck me as particularly interesting when juxtaposed alongside an article authored by Marquette alumnus Keith Alexander (BA ’98, MA ’00) and published recently in the Texas Review of Law and Politics. In developing an argument regarding the federal partial birth abortion ban, Alexander focuses on the original meaning of the 14th Amendment’s Equal Protection Clause: Continue reading “Progressive Originalism”


Posted on Categories Constitutional Interpretation, Judges & Judicial Process, Legal Scholarship, Religion & LawLeave a comment» on RIP, RJN

When Fr. Richard John Neuhaus, a priest of the Archdiocese of New York and editor-in-chief of the journal FIRST THINGS, passed away in January, numerous glowing tributes to his life and work poured forth.  Appreciation for his contributions emerged from all sectors — leaders from America’s religious, political, and academic communities praised his intellectual work and his pastoral nature. Yesterday, Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit delivered a lecture at the University of Minnesota School of Law entitled “The Influence of Richard John Neuhaus on Religion in the Public Square.” Her thoughts, and hopefully those of others as well, will analyze and honor the tremendous impact Fr. Neuhaus had specifically on America’s law and jurisprudence. His 1984 book The Naked Public Square: Religion and Democracy in America coined the phrase that defined the effort by some to drive religious dialogue and values out of America’s public discourse. The book is the starting point for efforts by people of faith to defend moral and religious arguments in public policy discussions (Westlaw finds over 250 uses of the phrase in its journals database).

In 1996, his journal, FIRST THINGS, published a symposium entitled “The End of Democracy? Judicial Usurpation of Politics”. Contributors included Robert Bork, Chuck Colson, Robert George, and Hadley Arkes. The symposium began with a very straightforward and intentionally shocking question question: “The question here explored, in full awareness of its far-reaching consequences, is whether we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime.” The editorial introducing the symposium gave a tentative answer as well: “What is happening now is the displacement of a constitutional order by a regime that does not have, will not obtain, and cannot command the consent of the people.” The symposium launched a heated debate about the role of judges in a constitutional republic, and remains a standard reference point in the modern intellectual discussion of “judicial activism.” Continue reading “RIP, RJN”

Misinformation Comes in All Forums

Posted on Categories Constitutional Interpretation, Political Processes & RhetoricLeave a comment» on Misinformation Comes in All Forums

I am close to being a first amendment absolutist. While some of the stuff that we see in the course of judicial elections tries my commitment, I am opposed to almost all regulation of campaign speech. As we face another Supreme Court election in Wisconsin, I fear my commitment may be tried again (although it is, at this point, unclear whether there will be much of a race).

I am a judicial election agnostic. I have often said that campaign speech in judicial election will often make me, as someone who studies and loves the law, cringe. But just when I am ready to dismiss the idea of elected judges, I think of the last confirmation battle over a Supreme Court or controversial lower court nominee and I am back on the fence.

Let me try to illustrate this in what may be seen as a provocative way. Continue reading “Misinformation Comes in All Forums”

Virtual Book Club

Posted on Categories Constitutional InterpretationLeave a comment» on Virtual Book Club

We add a new feature to the Marquette Law School Faculty Blog this semester: a virtual book club.  Over the course of the semester, participants will read and post about a particular book.  The book this semester will be The Invisible Constitution by Laurence Tribe (left).  From the publisher’s description:

As everyone knows, the United States Constitution is a tangible, visible document. Many see it in fact as a sacred text, holding no meaning other than that which is clearly visible on the page. Yet as renowned legal scholar Laurence Tribe shows, what is not written in the Constitution plays a key role in its interpretation. Indeed some of the most contentious Constitutional debates of our time hinge on the extent to which it can admit of divergent readings.

In The Invisible Constitution, Tribe argues that there is an unseen constitution — impalpable but powerful — that accompanies the parchment version. It is the visible document’s shadow, its dark matter: always there and possessing some of its key meanings and values despite its absence on the page. As Tribe illustrates, some of our most cherished and widely held beliefs about constitutional rights are not part of the written document, but can only be deduced by piecing together hints and clues from it.

Joining me in commenting on the book will be: Rebecca Blemberg, Bruce Boyden, Rick Esenberg, Melissa Greipp, Gordon Hylton, Julian Kossow, Mike McChrystal, Chad Oldfather, and Phoebe Williams.  I look forward to reading what my colleagues will have to say over the course of the semester.