Although probably not recognized as a budding legal philosopher, the great Ferris Bueller once remarked: “A man should not believe in an -ism, he should believe in himself.” Today, however, our modern constitutional interpretation is far too polluted by -isms. And the problem is not simply their pervasiveness; rather, it is that we expect judges and aspiring judges to swear fidelity to particular modes of interpretation and to apply them in almost robotic fashion on the bench. And judges are often criticized if they do not fully embrace that mandate.
A review of academic literature and Supreme Court opinions can easily convince the reader that all that matters in deciding constitutional questions is the method of interpretation selected as the lens for the inquiry. Originalism, whether the original conservative strand or the reactionary progressive version, dominates the contemporary discourse. Originalism evolved, at least in part, as a reaction to the Warren Court—the means by which we could restrain judges and ensure order in constitutional thought. After sampling various alternatives, many progressives eventually gravitated toward originalism as well, but their view of originalism often looks very different than the conservative approach. These techniques also spawned countless variants, often sparking the debate of who is being the more faithful originalist.
Now, I submit, these rigid modes of interpretation that have emerged may be worse than the condition they sought to cure in the first place. These are not simply nice, tidy academic theories for how we, as judges, might engage in constitutional thought. Instead, they have often evolved into a means for achieving a particular result, all the while the proponent insists otherwise. And they foster a “teams” mentality toward constitutional adjudication, an “us versus them” approach that is corrosive to the judiciary.
The rigidity of these modes of interpretation arises in part from a desire to beat back the exercise of judicial discretion, lest some judges employ it in an imprudent manner. But no matter how much judges might try to persuade you otherwise, we cannot escape a fundamental reality: Many cases are just difficult to resolve, and ultimately principled judges can reach different results. In other words, many cases emit no “One True Answer” decreed from the legal gods. We should not pretend otherwise. Because when we do pretend otherwise, if our colleagues (on appellate courts) disagree with us, then it forces us to discard their views as illegitimate, or worse.
If certain difficult cases offer no “One True Answer,” then what does the decision boil down to? Ultimately, judicial discretion on how to apply the facts and law at hand. And just because a judge wraps themselves in a particular interpretive methodology, they cannot obscure that fact. To the contrary, the methodological selection simply becomes the vehicle by which that judge exercises their discretion. Preordaining the decision in a case based on the selection of an interpretive methodology that dictates a particular outcome is no different than exercising that discretion on an ad hoc basis. But taking the former path necessarily chokes off honest debate, which is often lacking in contemporary constitutional discourse.
In a moment in which respect for the judiciary is ebbing, perhaps it is time to rethink our approach to constitutional interpretation. Rather than pretending that judges “must” reach a particular outcome because some methodological decision compels it, can we engage in debate about: (1) which tools or principles judges should consider in evaluating constitutional interpretation; and (2) when those considerations do not all point in favor of a particular outcome, how judges should weigh those conflicting factors?
And this isn’t really a radical concept—not too long ago, courts and judges did not obsess (to the same degree, at least) over modes of interpretation. Instead, they took appropriate tools at their disposal (text, history, purpose, precedent, etc.) and applied them to the best of their ability. And majority and dissenting opinions sparred over those points.
I would also submit that I believe many appellate judges throughout this country continue to do exactly that. In rejecting the rigid confines of the extant interpretative methodologies that pervade contemporary discussions of constitutional interpretation, they apply a more eclectic version of constitutional adjudication. Tailored to the specifics of the case they are confronting, this approach identifies and weighs the various tools that guide their legal inquiry. In so doing, these judges follow in the footsteps of their judicial forebearers, invoking common law principles in their quest to reach the right result.
But these judges largely stand silent about their methodological perspectives, as the rigidity in contemporary methodological discussions absorbs all of the oxygen in the room, and they do not openly advocate for breaking free from these constraints. Rather, out of the limelight, they dutifully approach each case in a manner relatively consistent with the approach I outline in this Article. It is time to give a voice to those judges and their idiosyncratic approaches to constitutional interpretation. We may learn something valuable by introducing their wisdom into our contemporary constitutional debates.
Our current fascination with all things methodological helps keep these perspectives on the sidelines because we have come to expect a neat and tidy theory that can answer all questions. But constitutional interpretation is often messy, and difficult. If we pretend that it is always simple, we aren’t being honest with ourselves. And that messiness needs an approach that is flexible and adaptable to the demands of different types of constitutional cases.
I approach these questions as an appellate judge in the trenches, not as a theorist. But I do draw on the existing theoretical backdrop, in order to set my approach in some context. I hesitate to label this approach with a name, as even that exercise seems in tension with what I am rebelling against. But for expediency’s sake, I will call this approach constitutional “eclecticism,” which, as I will explain below, might be another way of thinking about common law constitutionalism.
I appreciate that not many judges out there right now are openly advocating for my brand of eclecticism, and I can understand why. Against the methodological backdrop that we have experienced in the past quarter century or so, I suspect that critics would say that if we indulged my approach, when the constitutional inputs conflicted, judicial mischief could occur because it basically permits a judge to pick either side. My retort would be that if we achieve consensus on the tools, and the tools allowed the possibility of two contrary answers to the resolution of the case, then so be it—either course is defensible because no One True Answer exists. The opinion then becomes the vehicle through which the judge defends their approach by reliance and application of the permissible tools. Ultimately, for appellate decisions with majority and dissenting views, these dueling opinions then become instruments for persuasion—either to persuade other courts, or future judges or justices. A judge who exercises that discretion in a haphazard or questionable manner would eventually lose out in the judicial marketplace because others would not follow that decision.
To be sure, this approach cannot eliminate the risk of rogue judicial actors. But, of course, nor has any other approach that we’ve seen to date. As a result, shifting our focus away from rigid interpretative principles may allow us to focus on other considerations when evaluating potential judges, such as wisdom, experience, commitment to the rule of law, and empathy. Such attributes used to play a more prominent role, and they can again—if we let them.
I don’t pretend to have the perfect answers for all of these questions, and that’s not the point of this Article. Instead, it is to encourage debate on these points and hopefully to give voice to the approaches of many appellate judges who refuse to swear fidelity to a particular methodology. The common critique of judges nowadays is that they are simply “politicians in robes”; and an unhealthy reliance on rigid methodologies in constitutional interpretation reinforces that view. We can back away from that approach and help restore the standing of the judiciary in the public’s eyes, but it certainly won’t be easy. The first step, I submit, is recognizing that an alternative path exists and encouraging others to speak up and join the debate.
