Bench Memos

Re: New! Improved! Stronger Judiciary!

I agree entirely with Professor Franck’s observation that “Our law schools are thickly populated with folks who want first to produce ‘indeterminacy’ in order to supply ‘determinacy’ afterward via judges who are pliant and/or ambitious.” Epistemological pessimism can certainly be taken too far in constitutional interpretation, and it can be abused by those eager to discard both the original meaning of the Constitution and the original principles that undergirded the document at the time of its ratification.

But this does not mean that all indeterminacies of meaning are fake, nor does it justify Professor Franck’s Panglossian attitude toward the very difficult question of what to do in the face of real uncertainty. In my last post I identified a very few of the many constitutional indeterminacies that judges cannot ignore because they involve provisions of the Constitution that play a decisive role in many live cases that come before the courts. For example: What is a judge to do when confronted with a defendant who faces a federal penalty for possessing a firearm of some sort in his own home for self-defense, and who asserts his Second Amendment right to bear arms as an affirmative defense? 

Franck dodges the question of what the Second Amendment means in a borderline case like this. He asserts that judges should defer to the legislature on the constitutional question. This is a perfectly reasonable and defensible position. But it is not defensible to maintain that this preference for deference is definitively mandated by the Constitution. It comes instead from some independent view that Franck has about the proper role of the judiciary. By proposing that judges defer in this way, Franck is injecting some extra-constitutional maxim into the judicial decisionmaking process. I do not blame him for this, since some amount of external influence is unavoidable, insofar as no document can itself provide the definitive guideline for how its readers should interpret it.

Myself, I think that fidelity to the Constitution requires an understanding of the broad principles of classical liberalism that gave rise to the particular provisions of the document. I don’t think you can understand a legal text unless you understand the principles and the purpose behind it. Thus, in cases of indeterminacy of meaning, I think it is not only fair but necessary to ask judges to decide conflicts between government power and individual liberty in a way that would have conformed to the political principles of the founders. Whether or not he realizes it, Franck has already come half-way toward agreeing with me when he suggests that judges should look to Blackstone for guidance. Blackstone, after all, is a classical repository of extra-constitutional legal principles that are useful for filling in the gaps that the Constitution leaves for us.