Review of Breyer and Sunstein:
Lawprof James Ryan has posted an interesting review of recent books by Justice Breyer and Cass Sunstein: Does It Take a Theory? Originalism, Active Liberty and Minimalism, forthcoming in the Stanford Law Review. From the abstract:
  This review essay examines two recent books, Active Liberty by Justice Stephen Breyer, and Radicals In Robes by Professor Cass Sunstein, and it assesses them in relation to their main target -- Justice Scalia and his brand of originalism. Both books are self-consciously designed to influence public debate over how best to interpret the Constitution, a debate that originalists have dominated for the last fifteen years or so.
  There is much to admire in these books. Both are engaging and at times quite provocative. Justice Breyer's book is candid and smart. He offers no pat answers or simplified formula for deciding cases, which is to his credit and speaks well of his intellectual honesty. Professor Sunstein's book, in turn, is quite effective in poking holes in the form of originalism he dubs "fundamentalism" and in highlighting the numerous instances where "fundamentalists" like Justices Scalia and Thomas seem to deviate from their avowed methodology. For those who have been waiting for a public response from the left, these books are a sight for sore eyes, if for no other reason than they constitute an attempt to push back at the level of ideas.
  And yet the books fall a bit flat, at least in the eyes of this (sympathetic) reader. The basic problem is suggested by the title of this review: neither Justice Breyer nor Professor Sunstein offers and justifies a theory of constitutional interpretation. Justice Breyer comes closer than Professor Sunstein. But in my view, neither Active Liberty nor Radicals in Robes explains and justifies, in terms plain enough to influence public debate, how judges ought to decide cases. In their haste to distance themselves from originalism, moreover, both Justice Breyer and Sunstein seem to distance themselves from the text of the constitution. These seem to me fatal missteps in their effort to persuade a general audience to reject originalism and embrace an alternative.
Thanks to Legal Theory Blog for the link.

Michael B (mail):
Those two minuses would seem to be more than a little noteworthy, especially so if they do in fact "distance themselves from the text of the constitution." That they are provocative and avoid simplifications, these are necessary goods - yet hardly surprising, much less sufficient goods. Hence, from the final graph of the review:

"Breyer and Sunstein focus on one form of originalism, which entails looking to the narrowly conceived expectations of the framers. While this may indeed be the way originalism is occasionally practiced by Scalia and others, it is not the only version of originalism conceivable. Nor is it necessarily the one most faithful to the text of the Constitution, which, at the end of the day, is the point of originalism. What is ironic about both books is that each contains seeds of an alternative, originalist-oriented approach. But neither Breyer nor Sunstein explores whether that alternative might be superior both to the originalism they criticize and the approaches they advocate. Indeed, absent a compelling alternative theory, one wonders if Breyer and Sunstein should have sought to mend rather than end originalism."
1.27.2006 5:42pm
Justin (mail):
What a shocking critique from a former Rehnquist clerk ::feigns surprise::.

The more fundamental criticism of originalism can be found in the writings of the late Professor Black in his lectures series in Louisiana, fwiw. If Professor Ryan is of the mind that this is the first serious attack on originalism, I'm going to take his review with a grain of salt.

On the other hand, he's right about one thing - Liberals need to be able to better express their jurisprudence in terms of 5 second soundbites that win public opinion and combat the ADD level impatience of most law students. But unless he's (semantically) defining originalism so broadly as to render the term meaningless vis a vis structural purposovism, or unless Breyer's book is a radical departure from his general jurisprudence, Ryan's argument that Breyer is approaching a "wider originalism" strikes me as absurd and ignorant of what a radical concept "originalism" and the theory of Constitution-as-statute really is.
1.27.2006 5:58pm
Kate1999 (mail):
Justin writes: What a shocking critique from a former Rehnquist clerk ::feigns surprise::.

Here is a bit of James Ryan's bio:

James Edward Ryan joined the faculty in 1998, after completing a two-year Gibbons Fellowship in Public Interest and Constitutional Law. He teaches constitutional law, land use law, law and education, local government law, torts, and seminars on such topics as legal scholarship, the Supreme Court, and environmental justice.. . . .

Ryan attended the Law School, during which time he served on the managing board of the Virginia Law Review, was a volunteer for the Legal Assistance Society's Migrant Farm Workers Project, and was a founding member of Students United to Promote Racial Awareness.
Ryan may have clerked for Rehnquist, but it sounds to me like he is on the left.
1.27.2006 6:07pm
gwulaw (mail):
Wow Kate... You're sure reading a lot into that Bio. Absent more compelling evidence, I'd say his clerkship for Rhenquist is likely the more reliable acid test of his views.
1.27.2006 6:33pm
Marcus1 (mail) (www):
Sounds interesting, I'll have to check out these books.

I don't buy all this crap about needing a single theory, though. When I imagine the perfect judge, I don't imagine one who ascribes to one particular theory. I imagine someone who assimilates all the theories to reach the most sensible conclusion in each case. Rigidity is not, and has never been, the purpose of the judiciary.

The whole idea that a judge needs an ideology seems to me like an invention of the right. Since conservatives tend to stick very close to rigid theories, it makes for a handy attack on others that they are all theory-less. Till things change, my political response to "your judge lacks a theory" is to call these single-theorists out for what they are: unbending, ideological radicals.
1.27.2006 9:42pm
Marcus1 (mail) (www):
ascribes, subscribes, whatever
1.27.2006 9:43pm
VC Reader:
Environmental justice, migrant farm workers and racial awareness are rarely (if ever?) causes of the right. If I am remembering Alito's confirmation hearings correctly, he had quite a few liberal law clerks. Why would it be so far fetched to think that Rehnquist did as well?
1.27.2006 10:23pm
VC Reader:
In fact, there is a moderate-to-left-leaning Rehnquist law clerk who is a professor at my law school.
1.27.2006 10:26pm
I don't think that anybody restricts their applications for or acceptances of Supreme Court clerkships based on ideology.

Professor Ryan's own writing seems pretty politically neutral (he seems mostly to focus on school choice and desegregation, but doesn't take a particularly ideological stance on either issue as far as I can tell).
Ryan himself claims to sympathize with Sunstein &Breyer in his review, and I don't think the fact that he was a clerk for Rehnquist is enough to show that he is lying.
1.27.2006 10:42pm
John Jenkins (mail):
Jake, Jake, Jake. You're just not yet cynical enough for these games. If you've ever taken a conservative (or liberal) position, then to the opposition you're forever tainted, except when they agree with your most recent position, in which case you're deemed to have "grown" or "matured" depending on your point of view. It's simply impossible to take any criticism as such, because we all know that every critic has nefarious motives and lacks intellectual honesty. Either that or there are serious projection issues involved. Take your pick.
1.28.2006 12:30am
Brett Bellmore (mail):
Originalism or what have you, if somebody's "theory" of the Constitution isn't capable of producing a result they don't like, it's not a theory of the Constitution, it's just a rationale for their own preference.
1.28.2006 12:57am
Bill Vigen (www):
Professor Ryan seems to be making a pragmatic argument that Breyer's criticism of originalism will fail to move public opinion since the public somehow demands/needs a theory of constitutional interpretation. I don't understand why this has to be the case and Ryan seems to simply assert its truth. Moreover, if it is indeed true that a "truly meaningful theory of interpretation might be impossible to articulate if one remains intellectually honest" then how should Breyer have gone about articulating one? Dishonestly?

I did appreciate Ryan's seemingly paradoxical idea that Breyer almost argues for a form of originalism in his pursuit of active liberty.

Detailed opinion at my blog
1.28.2006 2:11am
Moral Hazard (mail):

On the other hand, he's right about one thing - Liberals need to be able to better express their jurisprudence in terms of 5 second soundbites that win public opinion and combat the ADD level impatience of most law students.

How about this:

Liberal justice: We rewrite the Constitution so you don't have to.
1.28.2006 3:23am
Moral Hazard (mail):
or how about:

Liberal justice: Discovering emanations and penumbras since 1965!
1.28.2006 3:33am
magoo (mail):
Or --
Liberal Justice: We believe everyone who clerked for the late Chief is a political conservative, even those former clerks who spend large portions of their time advancing politically liberal causes.
(yes, you'd need a big bumper)

PS -- Could someone please prepare a list of the 1001 counterexamples to this canard so we can dispose of it once and for all?
1.28.2006 9:49am
I don't think there are many, if any, constitutional theorists who completely reject "originalist" ideas, values, techniques, and so on. Rather, when theorists criticize "originalism", it is always a particular kind of "originalism", and often a particular "originalist", that they are criticizing.

Incidentally, I am also skeptical about the public's need for a comprehensive constitutional theory that can be compressed into a soundbite. Roberts, for example, specifically disclaimed having such a theory, and my impression is that the public generally liked what they heard from Roberts.
1.28.2006 12:08pm
Michael B (mail):
"The whole idea that a judge needs an ideology seems to me like an invention of the right. Since conservatives tend to stick very close to rigid theories, it makes for a handy attack on others that they are all theory-less. Till things change, my political response to "your judge lacks a theory" is to call these single-theorists out for what they are: unbending, ideological radicals. Marcus1

Ironically or not, that's an inventive, unbendingly rigid and all too handy, single theory of one's perceived detractors; a caricature and a strawman position.

"Roberts, for example, specifically disclaimed having such a theory, and my impression is that the public generally liked what they heard from Roberts." Medis

Yes, but Roberts positively advanced more than the idea (or theory?) of theory-lessness. For example and perhaps most repeatedly, an emphasis upon stare decisis and supportive rationales or framings for that emphasis.

Criticizing a fixture, a painting hung on a wall or even an entire wall is one thing, but if someone is criticizing the foundation or primary support beams of a structure then one is compelled to suggest alternatives to what may be eliminated as a result of the critique. The concern is with substance, not syntax. When Ryan uses the phrase "compelling alternative theory," it's doubtful he's narrowly construing the term since the very title of his review is "Does it take a Theory? ..."

Too, every word is an abstraction, a nominal representation - thus a kind of theory - of what is being represented. Construing the term "theory" narrowly, in order to advance the notion one's detractors are narrow and unbending "theorists" while further suggesting, eo ipso, one's own position is illuminating and perspicacious, is a rhetorical tactic based on syntax, not upon substance - unless of course a more positive and substantial argument is forwarded to support that position, including (e.g., when one is addressing the Constitution) a "compelling alternative".
1.28.2006 3:41pm
Marcus1 (mail) (www):
Michael B,

As Medis just said, we don't attack the "foundations." I personally attack the idea that consulting anything at all other than the original meaning turns judges into kings and renders our entire system of laws entirely meaningless and irrelevant.

You may call this a straw man, but the fact is that Conservatives say this all the time. They say liberals just completely make the law up. They say anything other than originalism is based in NOTHING other than the personal whims of liberal judges. It's not me that capitalizes "NOTHING." It is they. In fact, they are the straw man. That's why we attack it.
1.28.2006 5:09pm
Michael B (mail):
The reference, certainly my reference, is to Ryan's review, not what "they" say "all the time". Too, though not to quibble, I used the term "critique," not "attack".
1.28.2006 5:32pm
Michael B,

Right, Roberts was not a blank slate. He just didn't have a single, soundbite-friendly, comprehensive theory. So, my point was just that I think people can talk about adjudication and constitutional interpretation in that way, and the public might still approve.

I'm also a little puzzled about your foundation metaphor. In my experience, almost all judges and constitutional theorists agree with some originalist ideas and use some originalist methods. In that sense, originalism is one of the elements in their theoretical "structure".

However, many judges and theorists will also criticize particular versions of originalism, or particular originalists. They might also include non-originalist elements in their theoretical structures.

I don't think that necessarily results in a "foundation" problem. Indeed, that metaphor seems to beg an important question--whether or not judges need a single theoretical "foundation".

Following the example of Roberts and others, one might think that judges are in fact better off without trying to find and articulate some single, unifying, reductive, and comprehensive theory of adjudication or constitutional interpretation. Indeed, one might suggest that in practice, few if any judges actually adjudicate in such a fashion, even if they claim to adhere to such a theory of adjudication or constitutional interpretation.

If one really wants to get philosophical and metaphorical about this, one can note that there are many alternatives to a "foundational" structure when it comes to the practical arts or sciences. For example, one can have a coherentist approach, where the metaphorical structure is more like a web (rather than a building resting on a foundation). Given such a web-like structure, no single theoretical element counts as the "foundation" of the structure, although certain theoretical elements may have a more central and crucial position in the structure than others (eg, something like textualism, or stare decisis, or even originalism, may be such an element for many judges).

But even trying to articulate a single metaphor--or in general doing what one might call meta-theoritizing about adjudication--may be unwise for judges. Indeed, process-oriented folks may prefer a mix of judges, with a mix of theoretical approaches on both the direct and meta- levels, precisely as a hedge against overtheorizing adjudication.

And so on. The basic point is just that to say some particular version of originalism cannot be criticized without the proposing a "replacement" theory is to beg several important questions about what we think judges and other theorists should be pursuing.
1.28.2006 5:46pm
Michael B (mail):

While I think you are hung-up on the idea of "single" or "soundbite" reductions, I nonetheless largely agree with what you're indicating, at least within the broad references or some of the meta-references and framings provided. Then again, in doing what you're now doing, you're beginning to articulate something of your own "single theory" in a more positive, a more committed sense, which is the primary thing I was suggesting is needed.

There are several other issues which might be addressed, for example within what circumstances is a "narrow" interpretation viable vs. less viable? A father may expect a son or daughter to narrowly construe the rule of wearing seatbelts while driving, but allow them to more broadly construe other rules. (I.e., I simply don't believe Ryan is indicating anything narrow, at least not in any pejorative sense of the term, when addressing the need for a "compelling alternative".)

Good evening though.
1.28.2006 6:16pm
Michael B (mail):
"As Medis just said, we don't attack the 'foundations.'" Marcus1

A closing note here. Whether the "foundations" are simply being incorporated into a review or "attacked" (reflecting something of a spectrum) is a combination of normative and more subjective evaluations. A textualist/originalist, a critical race theorist, someone applying primarily sociological or economic based jurisprudence, etc. will all apply different assessments. So, without at all inferring anything about your own individual position, simply stating one is not "attacking" some aspect of the foundation is virtually a non sequitur. That's for others to assess with their own normative and more subjective standards since it defines or frames the very scope of what is being debated.
1.29.2006 1:33pm
Michael B,

In other words, to say another is attacking the "foundations" of adjudication or constitutional interpretation is necessarily question-begging, because it assumes the validity of the views which are being attacked.

Of course, a cynic might assume that such discussions are hopeless, if the parties are resolutely committed to their "own normative and more subjective standards." But I think that is too cynical--indeed, insofar as the audience for these public debates includes people who are more open-minded, there is value to these discussions regardless of whether the parties to the debate themselves are subject to persuasion.
1.29.2006 2:08pm
Michael B (mail):
Well yes, I understand what you're saying; essentially, whether or not there are valid foundations is itself also an aspect of the debate; well and good.

As regards the second comment, I'm not sure whether you're directly imputing any cynicism to my view, but that was not at my intention. Though some, and not only cynics, do forward the view that there is a hopeless aspect to the debate (meaning it's solely about power), but that is not my view. Bare minimum, transparency and some reasonable level of sincerity can help forward mutual comprehensions even when no sympathy for the differing views is obtainable. I don't intend that in any naive sense, about other, less transparent motives being involved, only that I don't hold the cynical or hopeless view, at least not in its more extreme form - though pure, unalloyed power plays need to be assessed for what they are as well, without any naivete, but that is a function of a realism, not cynicism.
1.29.2006 3:21pm