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Paulsen on Constitutional Interpretation:
Over at Balkinization, Michael Stokes Paulsen has an entertaining post about the Cal Tillisch approach to constitutional interpretation.
scote (mail):

Pick the desired result, choose an interpretive methodology to match, and then, time permitting, do some research to find supporting evidence.

I think someone mentioned on Volokh Conspiracy that really intelligent Supreme Court Justices are worse than average intelligence Supreme Court Justices because the really smart ones can start with their desired result and brilliantly rationalize it with scholarly flourishes whereas the regular Supreme actually has to follow the law and logic.
7.11.2007 8:11pm
Christopher M (mail):
Paulsen's analogy seems inapt and rhetorically misleading. Someone doing a chemistry experiment is trying to determine some objective, reproducible facts about the world, and clearly if they just make up the results they want ahead of time, they've missed the whole point of doing a chemistry experiment. Someone theorizing about constitutional interpretation, on the other hand, is not -- or at the very least shouldn't be -- trying to determine some objectively correct, logically required method of translating constitutional text into legal rules; rather, they're trying to decide, as a normative matter, what method is going to produce the best results (whether that's understood as "best protecting people's rights," or "improving overall welfare," or "creating and sustaining a just political/legal order," or whatever). So it seems to me that when we're trying to decide how to interpret the constitution, we should be concerned with whether or not our method produces just results in actual cases. (The fact that Paulsen disagrees with Balkin about whether the rule in Roe was just is neither here nor there.)

Or to use an analogy of my own: What would we think of Paulsen's post if it were on a different subject and went like this:
I knew this guy who was trying to figure out the proper procedure for grilling a good hamburger. And, can you believe it, he started with a premise about what a good hamburger should be like -- slightly charred but tender, juicy, with a nicely toasted bun -- and then he designed his grilling method to reach that result! Isn't that crazy? Obviously he should have been trying to figure out, as an a priori matter, what it means to correctly grill something, and then been satisfied with whatever hamburger that method produced!

Surely we'd think he was pretty far off base. But deciding how to interpret the Constitution is much more like deciding how to grill a hamburger than it is like trying to figure out what objective rules govern chemical interactions.
7.11.2007 8:11pm
OrinKerr:
Christopher M,

If your view is that the Constitution means whatever you think it should mean, I don't know why you would bother with "theory". If you're just cooking burgers the way you like'em, just cook 'em -- no need to pretend that you're actually imposing a theoretical framework on it.
7.11.2007 8:27pm
KeithK (mail):

Someone theorizing about constitutional interpretation, on the other hand, is not -- or at the very least shouldn't be -- trying to determine some objectively correct, logically required method of translating constitutional text into legal rules; rather, they're trying to decide, as a normative matter, what method is going to produce the best results (whether that's understood as "best protecting people's rights," or "improving overall welfare," or "creating and sustaining a just political/legal order," or whatever).

And this is fundamentally why there are great disagreements about Constitutional interpretation. I do believe that justices should attempt to objectively determine what the law is and says, or as objectively as possible. Whether or not the result is "just" or produces the right result should not matter in an appellate court. If the constitution and law dictate an unjust result then the legislature and/or people ought to change the offending statute.
7.11.2007 8:50pm
KeithK (mail):

Obviously he should have been trying to figure out, as an a priori matter, what it means to correctly grill something, and then been satisfied with whatever hamburger that method produced!


[off topic snark]Well this is exactly what the FDA and various health agencies try to do. They try to tell me what constitutes a correctly grilled hamburger is (internal temperature greater than 145 degrees F) and then instruct you to cook until reaching that point. The fact that this produces a burger that is inedible without vast amounts of ketchup is irrelevant to them.
7.11.2007 8:55pm
p.d.:
I wonder which SCOTUS justice is most likely to rule in a way that actually conflicts with his or her policy views on a given issue.
7.11.2007 8:57pm
rfg:
Quite a number of us have been convinced for some time now that this is actually how it works! Much of the "theory" behind legal interpretation is seems to be an attempt to introduce consistency and predictability into an essentially subjective process, where not all of us will agree (quick- define "unreasonable"- give ten examples!). This is not a situation where there is a clear, independent, objective standard.

At the Supreme Court level, a different issue comes into play, though. The cases that make it to that level are usually the really tough ones, where either no clear and universally accepted solution exists or the present solution is no longer tolerable due to chenges in society. The Justices have the unenviable task of not only devising a judgement, but explaining how they developed that particular interpretation in such a way that (hopefully) it seems that the conclusion is inevitable given the facts and the law.

This is while they are called judges and their decisions are opinions. Justice X's opinion and mine differ only in one important quality- it's his job to settle these issues, not mine.
7.11.2007 9:09pm
Libertarian1 (mail):
Deductive vs. Inductive reasoning.

As a physician I never start with what I want the diagnosis to be rather I make a tentative diagnosis based on signs and symptoms and then do tests which confirm or negate my initial theory. If the tests don't confirm than I change my diagnosis and re-test. Eventually the tests will lead to a conclusion. The TV program "House" is the ultimate example of this type of logic.

Sherlock Holmes was the master of deductive reasoning. All he wanted were the facts.

Much of law is inductive. You start from the conclusion and work backwards.

(a) My job is to prove that my client is not guilty or company B violated my patent. How can I obtain testimony to back my case? Which case law supports what I want to achieve? If the data does not support my conclusion discard the data, never discard the conclusion.

(b) Certain judges believe the goal of the court system is "justice". If the law specifically says 180 days or 14 days but that doesn't seem fair to me then how can I come up with a rationale to negate that inconvenient fact?

Both types of logic have their place but I find it ironic that within law there are proponents of both. I know of no examples of a similar disagreement within medicine.
7.11.2007 9:45pm
scote (mail):

Both types of logic have their place but I find it ironic that within law there are proponents of both. I know of no examples of a similar disagreement within medicine.

Medicine is based stubbornly in reality and what you do medically will be impartially judged by biology.

Being a lawyer, on the other-hand, is all about getting one's way from a system that can be gamed through many mechanisms, including argument, tactics, money, politics. There really is no irony that lawyers will use whatever tools they have available to get their way.
7.11.2007 10:57pm
AF:
Jack Balkin has posted a very thoughtful rebuttal of Paulsen called Is Legal Reasoning Experimental Science or Reflective Equilibrium? He argues that constitutional theory is more like moral philosophy than experimental science, in that the goal is to clarify and extend the principles that underly our shared normative judgments, not to determine objectives facts about the world. Thus, "making fun of constitutional argument because it fails to conform to the principles of experimental science is like making fun of baseball because it fails to conform to the rules of golf." It's an excellent post.

I must say respectfully Orin, that for someone who has deservedly earned a reputation unparalleled in the legal blogosphere for brilliance, fair-mindedness, and courtesy, your above comment is surprising in its dismissiveness. Would you be open to the possibility that a constitutional theory justifying Jim Crow is correct? If not then, you, sir, are a results-oriented jurisprude.
7.12.2007 10:24am
markm (mail):
Lawyers advocating for a client can follow the Tillisch method. Their job isn't to find the True Interpretation of the Law, but to find a plausible interpretation that fits their client's needs and try to persuade the court of it. OTOH, when there isn't a case before the court yet, should a lawyer advise a client as to the likelihood of winning a case or getting away with what the client proposes to do by the Tillisch method, there's a high risk of the lawyer fooling himself about what a court will believe and getting his client in trouble.

Judges should not use the Tillisch method. If they start with a desired result, they are prejudiced. (Yes, it often happens, with famous Supreme Court justices as often as in traffic court, but it's still wrong.) The judge's primary job is to pick out the theory among those presented by opposing counsel that best fits the law and the evidence - in the chem lab analogy, that's grading lab reports rather than writing them. Perhaps he has to give them both F's and construct a theory of his own, but if he's unprejudiced he will be working forward from the law and the facts rather than backwards from the desired conclusion.

AF: "Would you be open to the possibility that a constitutional theory justifying Jim Crow is correct?" That's one place respect for precedent comes in. Starting with the assumption that Jim Crow laws are unconstitional would be prejudice on the part of a judge. OTOH, it would be quite proper for a judge to start with the line of precedents that have ruled Jim Crow laws unconstitutional and regard that as solidly established law, and reject most attacks on those precedents as just wasting the court's time, inquiring instead whether counsel has any way of distinguishing this alleged Jim Crow law from the precedents.

OTOH, if someone came up with a new and well-reasoned argument that Jim Crow was constitutional, it would be the court's duty to listen and fairly evaluate it; rejecting it because that isn't the conclusion the judge wants is judicial prejudice as well as legislating from the bench. Not that I expect to see any such argument ever presented; the only arguments for Jim Crow I've ever heard boiled down to, "Negroes are inferior" (poorly supported factually and logically irrelevant), "We can't have them mixing with whites" (circular argument arising from pure prejudice), and "The courts were OK with Jim Crow in 1890" (they were prejudiced and wrong).
7.12.2007 3:24pm