Mitchell N. Berman (University of Texas School of Law) has posted Reflective Equilibrium and Constitutional Method: Lessons from John McCain and the Natural Born Citizenship Clause on SSRN. Here is the abstract:
How should we settle on a theory of constitutional interpretation? Take the debate over originalism. How should we determine which of the contending views is correct? Presumably, the correct view of constitutional interpretation must be at least consistent with the truth about other adjacent matters too - like, say, the nature of law. But how should we go about reaching the correct theory of constitutional interpretation in a manner that best ensures this consistency condition is satisfied?
A common approach, especially favored by some subset of contemporary originalists, is fairly described as foundationalist. For example, some originalists argue: that the practice of constitutional interpretation is the interpretation of a particular text; that interpretation just is the effort to ascertain the meaning that the text’s author intended to communicate; and therefore, that constitutional interpretation just is the effort to ascertain the meaning that the Constitution’s authors intended their text to communicate. Other originalists hold that originalism follows from the facts that a written constitution is designed to be authoritative or normatively binding and that law can have this authoritative character only by dint of the authority of its authors.
These are some ways to reason about constitutional interpretation, but not the only ones. This essay explores the possibility that we can draw lessons about candidate normative theories of constitutional interpretation by assigning a more prominent role than is customary to purportedly shared convictions about the proper legal resolution of particular cases. It does so by adapting the Rawlsian method of reflective equilibrium to the constitutional domain and by focusing, as a case study, on the question of whether Senator John McCain is constitutionally eligible to serve as President consistent with the Constitution’s Natural Born Citizenship Clause.
The method of reflective equilibrium maintains that our beliefs in a range of domains will be better justified if we seek coherence among considered judgments of general principles and of case outcomes, among other things, and that none of these different types of judgments is uniquely epistemically privileged: in principle, all judgments are revisable in light of all others. If this model applies to the constitutional domain, then the direction of argument between constitutional theory and constitutional case holdings would not be wholly unidirectional. While the correct outcomes in constitutional cases will often follow from applying the correct constitutional theory, the constitutional theory we deploy should itself be answerable to whatever strong considered judgments we may have about correct legal outcomes in particular cases.
The ambition to use strong intuitions or convictions about particular cases to drive (provisional and rebuttable) conclusions about interpretive constitutional theory might seem circular on the supposition that our legal judgments about cases should be the products, not the grounds, of our constitutional theories. But perhaps that need not always be true. And it is not true, I argue, with respect to the question of McCain’s eligibility for the presidency. In short, careful attention to the question of McCain’s eligibility might reorient our thinking about how to think about methods of constitutional interpretation more generally, and provides further basis to doubt originalism.
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