Opposing Conceptions of Law in Constitutional Interpretation
And their Relation to Classical American Philosophy
In this paper I will examine two opposing conceptions of law. One has given rise to the popular slogan of strict construction or textualism. This may be associated with the tradition of legal positivism. Another conception gives consideration to the context of a judicial decision, and is associated with the tradition of the common law. In the common law conception developed by Oliver Wendell Holmes Jr. in the 1870s, we find an emphasis upon inquiry in the context of doubt, by a representative transgenerational “community of inquiry,” parallel to the model of scientific inquiry found in the works of classical American philosophers. This conception is applicable to the judicial role in statutory and constitutional cases, and it compels a restrained approach to interpretation where a doubtful text implicates competing social interests or ideologies.
Opposing Conceptions of Law in Constitutional Interpretation
And their Relation to Classical American Philosophy
In this paper I will examine two opposing conceptions of law: one which privileges the authoritative legal text (associated with “strict construction” or textualism), and another, rooted in the common law, which gives greater consideration to context and which bears an important relationship to the emphasis upon inquiry, and the “community of inquiry,” parallel to the model of scientific inquiry in the works of classical American philosophers.
John Dewey, the American philosopher admired by Holmes, held that law is “through and through a social phenomenon” and that all legal theories should be judged as programs for action. Hence Dewey warned against use of the word “law” as a “single general term.” Law, he explained, must be viewed as intervening in the complex of other activities, and as itself a social process. Hence (in Dewey’s words) “‘law’ cannot be set up as a separate entity, but can be discussed only in terms of the social conditions in which it arises and of what it concretely does there.” (Dewey )
This is a classic statement of law as boundaryless, endogenous, embedded, as a social theorist might say, an “open system.” It emerges in part from, and is applicable to, common law. It is distinct in several crucial respects from the dominant vision of legal positivism, which sees law as fundamentally separate, exogenous, autonomous, acting upon society rather than acting within. Both models are in some degree reflected in the current methodology of American law; yet the two are at odds. They imply a deep inconsistency in our collective belief in what law is. What difference does it make which assumption is taken?
For the present purposes, we may find an operational contrast between the two views, in their different approaches to legal interpretation. According to the positivist model of law as a separate, autonomous, and bounded entity, law (when deciding a case) either succeeds or fails on its own. That is, positivists would agree that it is law only that must determine the outcome, but when law is defined as an static textual or analytical entity, as “positive” law, the outcome of a case must be recognizably attributable to it without regard to human intervention and foible.
When it comes to deciding difficult cases, this means the positivist legal theorist must accept the real and problematic possibility of “legal indeterminacy.” What looks like a mere metaphor actually becomes real; the issue of the boundary location of law itself becomes intimately involved with the question of legitimacy of judicial decisions. The core issue of positivist jurisprudence, lending itself to the technique and style of analytical philosophy, is the definition and boundary of the concept of law.
When the entire authoritative text of the law does not appear to have any clear answer to a pertinent question, the positivist paradigm forces the conclusion that it is “indeterminate” and the answer must lie, in some crucial respect, outside the boundary. This bears an obvious implication for the conduct of judges: if the decision of an unclear case is not covered by what is inside the accepted boundary, it must have been guided by something outside, not belonging within the proper definition of “the law.” The decision must be tantamount to judicial “activism” or “legislation.”
The problem of legal indeterminacy has led to a troublesome status for the consideration of “moral” values and abstract principles. Contemporary theories regarding the “essential nature” of law, such as that advanced by Ronald Dworkin, have given provisional status to “morals”--as part of the law--when the authoritative texts are seen as indeterminate.
For the endogenous or embedded model, that of the common law, legal indeterminacy carries a very different meaning, denoting degrees of uncertainty and difficulty. Uncertainty derives from the novelty of the original case, the lack of a fund of experience or precedent from which to draw analogies and make informed judgments. The term “legal indeterminacy” can, of course, be understood conversationally to mean a high degree of difficulty, but this is not its meaning under positivism.
Textualism in Constitutional Interpretation
In a commentary not long ago in The New York Times, “The Competing Visions of the Role of the Court,” the Times’ Supreme Court editor Linda Greenhouse observed that the main dividing line on the current Court is between textualists, led by Justice Antonin Scalia, and contextualists, typified by Justice Stephen G. Breyer:
For Justice Scalia, who focuses on text, language is supreme, and the court’s job is to derive and apply rules from the words chosen by the Constitution’s framers or a statute’s drafters. For Justice Breyer, who looks to context, language is only a starting point to an inquiry in which a law’s purpose and a decision’s likely consequences are the more important elements.
Textualism has had many precursors, including the political slogan “strict construction,” popular among conservatives in the Nixon era. It has come into renewed prominence, reflected in the publication of Justice Scalia’s A Matter of Interpretation, in 1997. This consisted of his 1996 Tanner Lectures at the Center for Human Values at Princeton University. In that essay, Scalia derides the common law, notwithstanding its prominence within the American law school, as a license for judges to do as they please. Instead he promotes a strict textualism as the only sure restraint upon freewheeling judges. When the text is unclear, Scalia turns to the original intention of the framers. The appeal to original understanding, while in many instances useful and some cases essential, sheds little light on novel questions. What, we might ask, was the original understanding of the fourteenth amendment, adopted on the heels of the Civil War in 1868, regarding remedial or affirmative steps to end race or gender discrimination? Or, for that matter, regarding state-sponsored suppression of free speech, the indigent right to counsel in a criminal case, or sexual privacy? All of these issues are now part of fourteenth amendment law. Original understanding thus becomes a cover for specific moral or social bias.
Oliver Wendell Holmes Jr. developed a distinctive conception of law during the years 1865-1880, after he had returned from the Civil War and had entered upon the study of law, first as a student at Harvard Law School, then as a reader and private practitioner, and eventually as an independent scholar (including a lectureship on constitutional law at Harvard College in 1870-71, and on jurisprudence at Harvard Law School from 1971-3). It was framed in a series of published articles from 1870 to 1880 and reflected in his book The Common Law, delivered as the Lowell Lectures in 1880 and published in 1881.
As his title suggests, it is a conception based on the common law that characterizes Holmes’ construction of the general conception “law.” The conception draws heavily from the historical debate between English legal theorists over the nature and source of legal rationality. It finds remarkable parallels to certain ideas of Holmes’ nonlawyer friends, Chauncey Wright, Charles S. Peirce, William James, and others, among whom were founders of the American school of philosophical thought known as pragmatism.
Legal problems are seen by Holmes as embedded in practices, and the practices are the concrete factors that define both the legal and logical character of cases that come before the courts. It follows that each case must be seen as a class of legal problem, which is itself an aspect of a broader social problem. Each problem must be seen as a continuum, a phenomenon with discrete stages in the process of inquiry and remediation. When it comes to issues of broad scope and great moment, such as involving fundamental rights, the law has a defined and often limited role, and sweeping constitutional language cannot be interpreted to contain final answers to new questions.
Within the flow of disputes are varying degrees of ripeness, what Holmes referred to in 1870 as the relative opportunity to “‘reconcile the cases,’ as it is called, that is, by a true induction to state the principle which has until then been obscurely felt.” This does not imply that judges should time their interventions, insofar as decisions may be forced by the flow of litigation; they should consider timing in the nature of the response. This method applies even to textual interpretation.
The positivist view is exemplified in a famous question posed by the legal philosopher H.L.A. Hart, whether a bicycle would constitute a “vehicle” prohibited by statute from use in a public park. Hart attributed this kind of legal question to the “open texture” of language, such that it implied the impossibility of resolution by “the law.” The example demonstrates that there exist gaps in legal language that oblige the judge to “legislate.” Openness of texture, even as a metaphor applied to language, carries with it the image of a fabric with intervening spaces that fail to provide the logical force of clear words in their typical function of representation. If the law is equated with authoritative legal language, the logic of the metaphor suggests that the law is without an answer to any unclear case that falls resolutely in the gaps and thus outside the operative terms--in spaces where reference is utterly unavailing. But (as Hart himself has observed) the use of precedent operates by example; and the common law is an accretion of examples, successively approximated in language. (Hart 1994)
For Holmes, common law precedents could be drawn upon to illuminate the meanings of doubtful statutory terms. No text is entirely self-explanatory. Justice Scalia implies that statutory terms cannot be examined with reference to common law usage--that is, their use not only in prior decisions interpreting the statute in question, but their historical meaning as part of the common law.
The essence of Holmes’ contribution is a revision of the conception of common law method inherited from 16th century England as a distinctive vision of formal community inquiry into the litigated conflicts that arise in society. This model of retrospective generalization separates contemporary common law from the project of analytical positivism, seeking a fixed universal definition of law that can lead to final answers to legal questions. It proposes a theory by which legal rules are mediated by contemporary standards of prudence and policy, and offers an empirical model of rule-based conflict resolution, one that seeks to distinguish between conflicts among competing precedents and those among competing general interests. It demands that judges explain their reasoning and decisions in specific terms--comparing precedents, distinguishing interests, limiting the prospective use of generalization. In constitutional law, Holmes did not foreclose judicial inquiry into new substantive issues under the fourteenth amendment, but he believed that his protocols of interpretation offered a method for weighing the protections of a constitution, sweeping in their expression, in circumstances unforeseen by the framers.
Reasoning from precedent is taught at all American law schools, and used throughout the judicial system, but it receives little more intellectual justification than the stability it might provide through the time-honored practice of stare decisis. Even stare decisis is depicted by Scalia as undermining the validity of majoritarian government: reasoning from precedents “would be an unqualified good, were it not for a trend in government that has developed in recent centuries, called democracy.” The will of the majority is embodied in a final authoritative text or not at all. But when the discussion is brought from the abstract to the particular, in the actual world of judging, can any text qua text, any discrete form of words, handle the entire responsibility? There exists a diversity of problems in the application of legal language. The legislature may not anticipate every situation to which a lawyer or prosecutor might apply its enactments.
The question is, then, whether a legislative or constitutional text is a comprehensive embodiment of the common will, or whether that will must be further understood to include the experience of the same community in the past and future, through relevant formal inquiry. Holmes’ view is that such words are the words of an ongoing community and, as formed over time in the legal process, they cannot be fully understood in insulation from their history of interpretation. Absolute textualism is more than a mere intellectual trend, a conservative ideology, or a blind commitment. It is informed by a belief concerning the nature of law, such that if democratic sourcing works only through legislative enactment, law must then remain discrete from its popular source, with a strict and identifiable boundary. By privileging the legal text, it is assumed that an identifiable entity called “law” has alone produced the outcome.
Holmes abandoned the positivist effort to gain a comprehensive analytical understanding of law in favor of a naturalized historical one. He rejected the Aristotelian logic of 19th century positivism, a logic rooted in classification and deduction based upon natural kinds. He replaced it with an account drawn from historical materials showing how the common law has approached the analytical project, of distinction and reconciliation among conflicting legal concepts, assisted in part by logic, but in fact deeply driven by practice and judgment, the repeated outcomes of cases informed by the standards of the ordinary person. Although he does not describe them as such, those standards are ethical as well as practical. This naturalized understanding is remarkably explicit in the 1899 article “Law in Science and Science in Law,” where Holmes stresses that law is inescapably the study of the history of legal precepts in order to understand their true scope and limits.
It is perfectly proper to regard and study the law simply as a great anthropological document. It is proper to resort to it to discover what ideals of society have been strong enough to reach that final form of expression, or what have been the changes in dominant ideals from century to century. It is proper to study it as an exercise in the morphology and transformation of human ideas.
Holmes’ naturalized account of deciding difficult cases addresses an issue in contemporary political theory, in particular the nature of social and political reasoning. It might be said that Holmes has taken a naturalist detour around the logic of reconciling competing ideas advanced by Hegel. Rather than the idealist Hegelian process of thesis engendering antithesis and leading to synthesis, his is a radically concrete and nonidealist, if not anti-idealist, conception of a succession of litigants encountering each other in the courts. In a case-by-case negotiation of clashing purposes and interests, conflicting principles (which lack the appearance of “commensurability” not from logical incompatibility but because they are rooted in independent courses of conduct) may eventually be reconciled. The insight was originally drawn by Holmes from the empirical reality of the historical common law, discovered in the 1870s within the dry, citation-filled pages of Kent’s Commentaries on American Law.
The resolution of social conflict comes not from the mind of a single heroic judge, the Hercules of Ronald Dworkin or the philosopher-king caricatured by Justice Scalia, or even, strictly speaking, the minds of many judges. It eventuates over time, even across succeeding generations, through a combination of judicial and popular thought and action. When points marked over time eventually suggest a reconciliation, it is one reflecting increasing experience, and adjustment, among all the actors in the ongoing field of conflict, within and without the courtroom. We might compare this to the detached rationalist model of the philosopher John Rawls, who constructs the notion of a “reflective equilibrium” under given hypothetical conditions (and behind a “veil of ignorance”) to explain the derivation of general principles of justice from specific conditions. While Holmes’ model is vastly dissimilar in purpose, scale, and method, it too aims at reconciling diversity through the application of rules reached reflectively. Insofar as it embodies principles of liberalism, they are rooted in the historical experience of a civic republican community and its legal tradition, including the adoption and implementation of the United States Constitution.
Liberal and communitarian political theorists have battled in recent years over the competing demands of individual rights and communal solidarity. The emergence of communitarianism in the late twentieth century came in reaction to liberalism’s foundationalist or a priori picture of individual rights. Michael Sandel, in Liberalism and the Limits of Justice (1981), identified this “deontological” view of rights as rooted in the utilitarian and Kantian traditions and reflected in the depiction by Rawls in his A Theory of Justice (1971). Holmes rejected such a view in his critique of John Austin, and applied an alternative naturalized consensualist view to the rights enshrined in the United States Constitution; they are not innately “higher” principles, trumping all competing considerations. They maintain a communitarian vitality in Holmes’ theory of law as public inquiry. Rather than fundamental propositions, they are fundamental questions. In place of “deontological” foundations, Holmes gave constitutional rights a naturalized, popular foundation, a meaning hard-earned over time, in the real conflicts within an ongoing national community.
So described, this entails a vision of law which gives rise to a unique notion of judicial timing and restraint. Beneath each final ruling lies a tacit, multi-faceted, multi-party, slow-moving negotiation approaching at last some semblance of a civic consensus. As such, a truly desirable outcome, indeed the notion of “social desirability” itself, embodies something much more subtle and complex than the policy views on either side of a given controversy, or even of a single judge, who might have proposed a formula too early, before all aspects of the matter have been explored. As he explained in an opinion for the Massachusetts SJC in 1900:
We do not forget the continuous process of developing the law that goes on through the courts, in the form of deduction, or deny that in a clear case it might be possible even to break away from a line of decisions in favor of some rule generally admitted to be based upon a deeper insight into the present wants of society. But the improvements made by the courts are made, almost invariably, by very slow degrees and by very short steps. Their general duty is not to change but to work out the principles already sanctioned by the practice of the past. No one supposes that a judge is at liberty to decide with sole reference even to his strongest convictions of policy and right. His duty in general is to develop the principles which he finds, with such consistency as he may be able to attain.
In constitutional law, Holmes’ common law vision is illuminating, even if more tenuous and difficult in practical application. Unlike contemporary conservatives, many of whom still decry the abandonment of strict procedural due process, Holmes yielded to the powerful exigency to weigh urgent new disputes against constitutional values. Conservatives and liberals alike would agree that such values must be carefully weighed somewhere in the democratic process, or be meaningless. Holmes suggests a model through which constitutional evaluation may take place, without conceding final judicial authority to determine their meaning for all time. The justices, while unable to enlist direct input from the public, are bound by prevailing public standards, and restrained where they are yet undeveloped or cannot be known. The language of the constitution, and the fourteenth amendment, speaks to everyone, not just to the Supreme Court. A way must be found, even in original controversies, for the “absolute compulsion of the words” to have some force, without conceding a license to make new law ahead of the popular conscience.
What, we might ask, is constitutional law, and how does it protect something so fundamental as liberty, equality, and freedom of expression? What it does is not different from what the common law has done in multiple contexts throughout centuries of experiment with free public and private institutions in England: it has focused the inquiry, it has forced the question, repeatedly. This is what is meant by first, or fifth, or fourteenth amendment jurisdiction: it asks whether the public purpose is consistent with free expression, equal protection, or denial of liberty without due process of law, in a continuing succession of urgent but particular controversies, in which the stakes are high and all are held to account; and it has asked relentlessly. Answers gradually have come out, but they were and are not final. “Clear and present danger,” a test for free speech first suggested by Holmes in 1919, now plays a subordinate role in first amendment law. The answers have not come from any inherent content in the document, the understanding of its framers, or patent logical inconsistencies between statutory and constitutional language. They have arisen from the specific exigencies of maintaining a democracy through civil strife and world wars, on into a risky and uncertain future.
Hart, H.L.A., The Concept of Law (1994)
Holmes, Oliver W., The Common Law (1881)
Rawls, John, A Theory of Justice (1971)
Sandel, Michael, Liberalism and the Limits of Justice (1982)
Scalia, Antonin, A Matter of Interpretation (1997)