Barry Friedman (New York University School of Law) has posted Discipline and Method: The Making of the Will of the People (Michigan State Law Review, Vol. 2010, p. 877-920) on SSRN. Here is the abstract:
Despite the oft-noted move toward multi-disciplinarity, it remains the case that scholars tend to defend their own methodological turf. This can be unfortunate; no particular discipline or methodology is inherently worthy. The methodological questions regarding any given piece of scholarship should be (a) whether the project is talking an unanswered question of some importance; (b) whether the tools utilized are reliable, i.e., apt to teach us something about that question; and (c) whether the conclusions are sound. I address these questions in response to a symposium held concerning my book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. They symposium, at Michigan State University School of Law, brought together scholars from history, politics and law. In this piece I explain the intellectual journey that led to The Will of the People, and respond to critics, on both substantive and methodological grounds. The focus, however, is on the issue that leads this abstract: what are the “right” tools in a multi-disciplinary world?
Highly recommended! Anyone interested in Friedman's wonderful book will want to read this essay. Let me call attention to just one point that Friedman makes:
Legal scholarship tends to be normative. As befits this focus, some commentators were concerned not so much with my method as with my conclusions. There were anxious expressions about what TWOTP would mean, if accepted, for the actual practice of judicial review. The downside of law’s normativity is that sometimes it fails to come to grips with the facts on the ground. Normativity is incredibly important; if anything, the “bite” or real world significance of some social science projects seems at times a bit too obscure. But, by the same token, normativ- ity without sufficient attention to reality is nothing but imagining. While there is a lot to be said for imagining, especially when it comes to imagining a better world, still there must be some reason to think that the object of normative criticism is our actual here-and-now world, or that the improve- ments proposed can be achieved. Think about it this way: there’s little point in imagining a fuel-efficient car that requires a zero-gravity environment, unless one thinks either that we will be living in a zero-gravity world, or that thinking about it will lead to some advance being made that can carry over into our inescapably gravity-laden world. So too for theories about social change and justice.
And Friedman applies this point to originalism:
The history that I lay out is what is truly devastating to the endeavor of originalism, something Solum (and most of today’s originalists) simply does not take up.
* * *
The Constitution of today is in myriad ways not our forefathers’ Constitution. Does anyone really believe otherwise? The framers of the original Constitution would hardly recognize the size of the federal government we have today, a fact that even originalism’s most prominent proponents con- cede.66 And if that is conceded, why not much else? Women’s equality? Most orginalists don’t even try to justify that in originalist terms. Integrated schools remain a struggle for originalists to explain. There are many examples, including some that often receive little attention: the right to counsel, the scope of the right against self-incrimination, arguably the entire apparatus for enforcing the rights of criminal procedure.
One could acknowledge that the Constitution isn’t what it was, but that it should be. That what is needed is a return to the Constitution of yore. Few are willing to make this claim wholeheartedly. But even on these terms, originalism is a normative theory; it is most certainly not an account of what we have done. And that is precisely my point regarding the differ- ence between “imagining” and realism.
I think that Friedman is right on target here. Constitutional theory needs to take what Friedman calls "realism" seriously. That is, we need to be rigorous about what is within the realm of "constitutional possibilities" or "the feasible choice set for constitutional practice" or "second best constitutional theory." I've tried to set out some preliminary thoughts on theoretical frameworks for evaluating questions about constitutional possibility in my "Constitutional Possibilities." And in other work, I have argued that a more formalist constitutional politics is indeed within the feasible choice set. Several of my articles address this question. Of course, Friedman is right about one thing--if originalism requires an originalist "big bang" undoing the New Deal federalism and separation of pwoers jurisprudence in a single "superterm," then originalism is not political feasible. But it is obvious that orignalism as a theory does not entail commitment to an originalist "big bang." For one thing, the implications of originalism may not be quite so radical as Friedman suggests; given the interpretation-construction distinction, the construction zone may be sufficiently capacious to preserve much of existing constitutional jurisprudence. For another thing, a rule-of-law originalist might believe that the rule-of-law requires a strong doctrine of constitutional stare decisis, with the result that big changes in constitutional practice would take place only incrementally over a long period of time (with plenty of time for possibility of constitutional amendments that would preserve popular constitutional doctrines that are inconsistent with the text).
More fundamentally, there are good reasons to believe that a more formalist constitutional jurisprudence is politically feasible. The following passage (from "The Supreme Court in Bondage") is representative of my line of argument on this topic.
Let’s begin with the intuitive reasons for suspecting that formalism is pie in the sky. One such reason might proceed from a theory of human nature. It might be thought that actual world judges are simply incapable of following [original meaning] and precedent when it conflicts with their own policy preferences. No doubt, there are some judges who are incapable of restraining themselves. Neoformalist judging will be feasible, in this sense, so long as there are judges who are capable of self restraint. It’s possible that someone can produce evidence that humans simply are incapable of following the law and suppressing their own preferences, but absent such evidence, the case for the infeasibility of neoformalist judicial practice has not yet been made.
But even if judges are capable of fidelity to law, this merely moves us over to the domain of judicial selection. It might be argued that the judicial selection process is tilted towards the selection of ideological judges, and hence that it is unrealistic to believe that formalist judges could be selected by our actual politicians. Given current political circumstances, this might be right. It’s true that many politicians profess allegiance to legal formalism. What could be more platitudinous than a politician saying that judges shouldn’t make the law? But this may be “cheap talk.” Underneath the formalist platitudes, it may be that cynical politicians not only know that almost all judges are realists but covertly want to select realist judges who match their own policy preferences.
Is it feasible for the judicial selection process to produce a formalist judiciary? Consider two scenarios, each of which expresses a different route by which political actors might come to select formalist judges.
The first scenario begins with the assumption that the politicians who select judges today pay lip service to the value of formalism but actually want realist judges who share their political preferences. In this case of the federal system, this assumption means that liberal Democrats want liberal judges, conservative Republicans want conservative judges, and so forth. And let’s further assume that they want judges who will vote their politics, for example, that all politicians actually want realist judges. But these preferences are not set in stone. One can imagine that the political actors might come to believe that it was actually in their interest to select formalist judges. How might such a belief form? The answer to this question can begin with the idea that even the most cynical of politicians are likely to believe that what we might call “ultrarealist judging” could have disastrous consequences. Imagine a world where judges openly decided each and every case based on the political impact. Elections were always reversed when a majority of the court of last resort wanted the other candidate to win. The political affiliations of the lawyers determine the outcome when the case itself has no big political consequences. Presumably, even thoroughgoing realists see the value of the rule of law and formalist constraint in this sort of extreme case. If this is correct, then political actors already have a preference for at least a modicum of formalism. And if this is so, then we can also imagine that politicians could prefer even more formalism if the case were made that more formalism produces more net political benefits than costs. Of course, this case may be difficult in the current political context: for example, the politics of Roe v. Wade make it difficult for Democrats to nominate or confirm judges who will overrule Roe and difficult for Republicans to nominate or confirm judges who will consider themselves bound by Roe. So the case for the political value of formalism would have to rest on the idea that politicization of the judicial selection process and of the judiciary leads to very bad consequences—that politicizing Roe v. Wade makes it difficult to avoid the politicization of Bush v. Gore and a continuation of this trend heads us in the direct of ultrarealism and the degeneration of the rule of law. If this case were convincing, then political actors might come to prefer the selection of formalist judges.
The second scenario is based on a different premise. Let’s assume that politicians care only (or mostly) about short run political consequences. But now, let’s make the further assumption that judicial selection requires the cooperation from a wide range of political opinion that includes the political center. In the case of the federal system, this assumption seems fairly realistic, since confirmation requires the cooperation of at least 51 members of the Senate. Even if the presidency is held by someone at the political extremes, the fifty-first vote required for confirmation must come from the so-called “median Senator,” who by definition is at the center of the Senate’s ideological spectrum. If selection requires the cooperation of actors with a wide range of political beliefs, then it follows that the judges who are selected cannot match the political ideology of all the selectors. Of course, when political actors decide whether to nominate or confirm, their decision always takes place against the backdrop of the status quo. In this case, the status quo is the judiciary as it exists when the vacancy arises and the legal outputs that the status quo judiciary would create. A rational political actor will only cooperate in the selection of judges who either leave the status quo intact or who move the status quo towards the actor’s own political preferences. Formalist judges who respect stare decisis are judges who are unlikely to change the status quo. So, formalist judges are almost always within the feasible choice set for the judicial selection process—even if we assume that political actors are motivated entirely by the desire to influence the decisions that judges will make. In a wide variety of possible political configurations, maintaining the status quo will be the only possible outcome, because there will be no change from the status quo upon which the President and 51 members of the Senate can agree.
I have presented the two scenarios as alternatives, but they could be combined. That is, political actors might come to see that formalist judges both preserve the political status quo and that they create rule-of-law benefits. Both perceptions could work together to create a preference for the selection of formalist judges.
At this point, I need to make the nature of my claim explicit. I am not trying to argue that the selection of formalist judges is inevitable or even likely. Rather, my aim is to fend off the claim that formalism is “pie in the sky” or impossibly utopian. In order to meet this objection, I need to show that some potential judges are capable of being formalists and that judicial selection systems are capable of choosing formalist judges. That is, I need to make a prima facie showing that formalism is possible. If I have made such a showing, then the burden shifts to those who make the opposite claim. They need to provide arguments that establish the impossibility of formalism.
Read Friedman's essay and his wonderful book!