The Pragmatist's View of Constitutional Implementation and Constitutional Meaning
Responding to Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning , 119 Harv. L. Rev. 1274 (2006)
Professor Fallon’s article, Judicially Manageable Standards and Constitutional Meaning, is an important and powerful defense and exploration of what I have had the presumption to call “antipragmatist” constitutional theory. As I define this family of views, antipragmatist scholars maintain that constitutional law can be usefully divided into two domains: the domain of “constitutional meaning” and the domain of “implementing doctrine.” Although the approaches of these scholars differ in important respects, the essence of their argument can be boiled down to two fundamental propositions about what judges do: first, judges devise implementing doctrines to carry out constitutional meaning, and second, they design implementing doctrines with practical and institutional considerations in mind that are not a part of the inquiry into constitutional meaning.
The first step of examining constitutional meaning is primarily a matter of “interpretation” broadly understood, relying on text, history, abstract moral theory — anything, really, just so long as constitutional meaning does not rest on the messy instrumental questions of how time-consuming, financially costly, or politically controversial the proposed constitutional principle is likely to be. If successful, the inquiry into meaning results in the judicial recognition of some relatively abstract constitutionally protected principle that might be incapable of being directly enforced against anyone. At the second stage, courts come up with implementing rules — what Professor Mitchell Berman calls “decision rules” — that guide courts in their enforcement of the relevant value or principle in a cost-effective, institutionally sensitive manner. Such implementing doctrines are designed with an eye toward instrumental considerations, such as the judicial need to provide clear guidance to future litigants, the need to resolve cases in a timely manner, and the costs of the Supreme Court’s monitoring of lower federal courts.
I suggest that this claim is, in important ways, seductively misleading. But the concept of a gap between meaning and implementation is, nevertheless, extraordinarily helpful because it highlights not only a subtle ambiguity in the nature of constitutional doctrine, but also a deeply felt desire of scholars and judges to achieve noninstrumental certainty in the law. I suggest that we would all be wise to resist the call to hunt for the Snark of “pure,” noninstrumental constitutional value because I believe that no such thing exists. But to be deaf to the call would be to ignore an important psychological need of judges and scholars.
119 Harv. L. Rev. F. 173 (2006) | DOWNLOAD PDF
