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Posts Tagged ‘judging theory’

Thanks to David Kopel’s post on The Volokh Conspiracy, I had the pleasure of reading this afternoon “The Fiduciary Foundations of Federal Equal Protection” by Gary Lawson, Guy Seidman, and Rob Natelson. I will not summarize their argument, which is easy enough to ascertain from their abstract. Instead, I would like to highlight their discussion of the difference between a theory of interpretation (like, say, original public meaning originalism) and a theory of adjudication. The distinction, which is central to a forthcoming paper (“Judging Theory”) that I have co-authored with Marc DeGirolami and hope to say more about soon, is too often ignored in constitutional theory. Here’s how Lawson, Seidman, and Natelson explain the difference:

Our focus has been on discerning constitutional meaning, and we have no trouble saying that the federal Constitution means that federal government officials must have plausible reasons when discriminating among classes of citizens. That is no more difficult than saying that a trustee needs to have good reasons for his or her actions when he or she treats some beneficiaries more favorably than other beneficiaries, or that an agent must have good reasons for discriminating among principals. The strength of the required reasons will vary with context, but an utterly arbitrary action by a fiduciary that discriminates among beneficiaries or principals is always a breach of duty. The Constitution imposes a similar rule on federal actors, unless one can discern specific contexts in which that general requirement does not apply. But determining how, or even whether, to translate that meaning into real-world constitutional doctrine requires a completely different kind of inquiry than we have undertaken here.

The move from meaning to real-world doctrine requires a theory about a very complex relationship between what a document means and how people should behave. Many people assume that once the Constitution’s meaning is discerned, it follows naturally that political actors, such as judges, should act in accordance with that known meaning. As one of us has emphasized to tedium, however, that is an assumption far less inevitable than widespread.

Propositions about constitutional meaning are factual statements whose truth or falsity is determined by the tools of interpretative theory, while propositions about constitutional doctrine, which purport to dictate appropriate conduct, are normative claims whose truth or falsity must be determined by political and moral theory. Evidence that supports one kind of claim may or may not support other kinds of claims. Even assuming that constitutional meaning is relevant to constitutional action, it is far from obvious that adjudication either can or should directly apply what one regards as the correct theory of constitutional meaning (whatever that theory may be). Adjudication takes place in real time, with limited resources. Anyone who says that there is no price tag on justice understands neither price tags nor justice. It is virtually inevitable that any sensible, workable system of adjudication will adopt shortcuts, or rules of thumb, for dealing with recurring situations, which almost certainly means that some decisions that are adjudicatively “correct” will be interpretatively “wrong,” simply because getting the interpretatively “correct” answer would be too costly. A theory of adjudication probably cannot follow in a straight line from a theory of interpretation even if the conceptual and normative gap between meaning and adjudication can be bridged.

Thus, we present here no theory about the appropriate way to translate constitutional meaning into constitutional adjudication. We conclude only that the Constitution’s meaning includes fiduciary obligations on federal officials; we do not say whether courts can or should enforce those obligations in any particular fashion.

[pp. 42-44, footnotes omitted]

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