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9. Against Constitutional Theory
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Chapter 9 Against Constitutional Theory Richard A. Posner Constitutional theory, as I shall use the term, is the effort to develop a generally accepted theory to guide the interpretation of the Constitution of the United States. It is distinct on the one hand from inquiries of a social scientific character into the nature, provenance, and consequences of constitutionalism —the sort of thing one associates mainly with historians and political scientists, such as Charles Beard, Jon Elster, and Stephen Holmes— and on the other hand from commentary on specific cases and doctrines, the sort of thing one associates with legal doctrinalists, such as Kathleen Sullivan, Laurence Tribe, and William Van Alstyne. A number of scholars straddle this divide, such as Ronald Dworkin and Lawrence Lessig, and although I mean to keep to one side of it in this lecture, the straddle is no accident . Constitutional theorists are normativists; their theories are meant to influence the way judges decide difficult constitutional cases; when the theorists are law-trained, as most of them are, they cannot resist telling their readers which cases they think were decided consistently with or contrary to their theory. Most constitutional theorists, indeed, believe in social reform through judicial action. Constitutional theory that is strongly influenced by moral theory has additional problems, as I have discussed recently and will not repeat here.1 I must stress at the outset the limited domain of constitutional theory. Nothing pretentious enough to warrant the name of theory is required to decide cases in which the text or history of the Constitution provides sure guidance. No theory is required to determine how many Senators each state 217 This lecture was delivered on October 21, 1997, and appeared in 73 N.Y.U.L. Rev. 1 (1998). may have. Somewhat more difficult interpretive issues, such as whether the self-incrimination clause should be interpreted as forbidding the prosecutor to comment on the defendant’s failure to take the stand,2 can be resolved pretty straightforwardly by considering the consequences of rival interpretations . Were the prosecutor allowed to argue to the jury that the defendant ’s refusal to testify should be taken as an admission of guilt, it would be extremely difficult for defense counsel to counter with some plausible explanation consistent with his client’s being innocent. So allowing comment would pretty much destroy the privilege—at least as it is currently understood . That is an important qualification. It has been strongly argued that the current understanding is incorrect, that the purpose of the privilege is merely to prevent improper methods of interrogation; and if this is right then there is no basis for the rule of no comment.3 Maybe, as this example suggests, when fully ventilated no issue of constitutional law not founded on one of the numerical provisions of the Constitution is beyond contestation . But as a practical matter there are large areas of constitutional law that the debates over constitutional theory do not touch and that consequently I shall ignore. Constitutional theory in the sense in which I am using the term is at least as old as the Federalist Papers. And yet after more than two centuries no signs of closure or even, it seems to me, of progress, are visible. The reason is that constitutional theory has no power to command agreement from people not already predisposed to accept the theorist’s policy prescriptions. It has no power partly because it is normative,partly because interpretation, the subject of constitutional theory, is not susceptible of theoretical resolution , and partly because normativists in general and lawyers (and as I said most constitutional theorists are lawyers, albeit professors of law rather than practicing lawyers) do not like to be backed into a corner by committing themselves to a theory that might be falsified by data, just as no practicing lawyer wants to take a position that might force him to concede that his client has no case. Neither type of lawyer wants the validity of his theory to be hostage to what a factual inquiry might bring to light. But as a result, constitutional theory, while often rhetorically powerful, lacks the agreement -coercing power of the best natural and social science. An even more serious problem is that constitutional theory is not responsive to, and indeed tends to occlude, the greatest need of constitutional adjudicators, which is the need for empirical knowledge, as I shall argue using as illustrations the Supreme Court’s 1996 decisions forbidding the Virginia Military Institute...