A couple of comments on top of Matt’s exposition of Geoffrey Stone’s incoherent NYT op-ed:

1. In instances in which the meaning of constitutional provisions is indeterminate (or underdetermined)—and I certainly don’t dispute that indeterminacy (or underdeterminacy) exists—that indeterminacy argues powerfully against the exercise of judicial power to invalidate democratic enactments. In our system of representative government, judges need a clear warrant to strike down laws. That warrant exists when sound constitutional interpretation (I’ll pass over here the dispute as to what qualifies) yields a sufficiently clear answer that a law clashes with the meaning of a constitutional provision. But it doesn’t exist when the meaning of the constitutional provision is in relevant respects indeterminate.

Under Stone’s approach, it would seem that virtually all contested constitutional provisions are fundamentally indeterminate. Stone states that the “framers fully understood that they were leaving it to future generations to use their intelligence, judgment and experience to give concrete meaning to the expressed aspirations” (emphasis added), but what Stone really means is that the Framers left it to future generations of judges to resolve the indeterminacy. In other words, instead of recognizing that indeterminacy is an obstacle to the exercise of judicial power, he treats it as conferring carte blanche on liberal judges to entrench their own policy views in the guise of newly invented constitutional rights and to drain any content out of actual constitutional rights.

2. Stone’s effort to salvage President Obama’s lawless empathy standard is risible. Stone contends, first, that “empathy helps judges understand the aspirations of the framers.” As Matt emphasizes, it’s bizarre that Stone could maintain that the Framers’ aspirations are ascertainable and determinate but that their words are unknowable. In any event, what Obama has called for is not justices who “understand the aspirations of the framers” but justices who “recognize what it’s like to be a young teenage mom,” who “understand what it’s like to be poor or African-American or gay or disabled or old.” That sort of empathy may well be a relevant virtue for citizens and legislators, but it is difficult to see how it should be indulged by justices in deciding what provisions of the Constitution mean.

Stone contends, second, that empathy “helps judges understand the effects of the law on the real world.” I’ll set aside here an exploration of whether and when such an understanding may properly affect a justice’s determination of what a constitutional provision means. But, again, that’s clearly not what Obama means by his empathy standard (or it’s at best a tiny part of it.)