Bench Memos

Re: New! Improved!

Is it time for someone to invoke the “good heavens, we’re only blogging” defense?  In this medium, when discussing complex questions, one is often either (a) brief at the risk of appearing perfunctory, (b) brief with pedantic footnotes, or (c) going on too long while writing impromptu.  There are dangers in all three.  It seems I have been (a).  But I will make a few quick remarks responding to Anthony Dick’s latest, and let him have the last word if he wishes.

1.  I did not say or imply that “all indeterminacies of meaning are fake,” nor had I detected Dr. Pangloss in the looking glass.  I only denied Dick’s earlier remark that “every single provision of the Constitution is hazy” to some degree.  There surely are provisions of the Constitution that are “indeterminate,” if that fashionable word must be used.  (Why not “vague”? or “requiring interpretation”?)  Somewhere back a few posts I think we were both talking about finding the original meaning of the Constitution–the many easy provisions and the few hard ones.  I’m less sure we’re both doing that now, for reasons that will appear below in point 5.

2.  To Mr. Dick’s hypothetical defendant with an “affirmative defense” putatively resting on the Second Amendment, I should have thought my answer was predictable: you lose.  This is not because of “some extra-constitutional maxim” I have about the proper role of the judiciary.  It is the conclusion of a course of reasoning about what the Constitution says and was understood to mean by those who made it.  I haven’t any a priori theory at all about how much judicial power is desirable under the Constitution.  I’m interested in the historical evidence–much of it extrinsic to the text, to be sure–that sheds light on what is intrinsic to the text’s independent meaning.  I could be wrong about the evidence, and if I find that I am, I won’t cling to any “independent view that [I have] about the proper role of the judiciary,” because I don’t have one.

3.  Dick has misunderstood my point about Blackstone.  I did not and would not cite him as a “classical repository of extra-constitutional legal principles that are useful for filling in the gaps” in the Constitution.  I cited him as a good starting point for understanding the methods of legal reasoning and the interpretation of texts that prevailed at the founding.  Big difference.

4.  What Dick has yet to provide is any account of judicial power that would have it enforce, as I said previously, “every jot and tittle” of the Constitution.  I haven’t provided a full account of my more limited view of judicial power, so I guess we’re even on that score.  If Dick is not, after all, an “every jot” man, then I would ask him where he would draw the line between the jots that judges enforce and those they don’t.  I’ve published some work on this, taking my cue from John Marshall, but won’t lengthen this post with more on the point (dang, that was almost a pedantic footnote).  If Dick is an “every jot” man, then I’d like to know why, on originalist grounds that don’t depend on rhetorical flights about “classical liberalism.”

5.  (Wasn’t this going to be brief?)  About that “classical liberalism”: Dick’s ready reference to “extra-constitutional legal principles” and to “the political principles of the founders” reminds me of my friend Hadley Arkes’s “Beyond the Constitution” thesis.  That’s good company to be in, but they’re both wrong, I think.  Since I don’t think “every jot and tittle” of the Constitution is authoritatively enforceable by judges, I have trouble seeing how you get outside the Constitution to the enforcement of jots and tittles not in it but actually “extra-constitutional”–and somehow enforceable anyway because they were really, really important to the founders.  Where the judicial power is concerned, this is no longer originalism properly understood–not about the text, anyway.  It is instead a venture into the justice of the philosopher-kings.