Tuesday, August 27, 2013
"Icarus, too, was scornful of pedestrianism"
Here's a delightful essay from about 30 years ago by Daniel Farber bearing the subtitle, "The Case Against Brilliance," which may be worth revisiting at a time of year in the legal academic calendar when the glut of brilliant writing is enough to choke Charybdis.
The essay was written before most of Professor Farber's (brilliant) work on legal pragmatism, but one can certainly see some of the critical roots of it here. Farber's primary target is economics but he saves a little something for constitutional theory:
In most fields of intellectual endeavor, the highest praise is reserved for brilliant insights that overturn conventional thinking and common sense. Albert Einstein's theory of relativity, for example, changed completely the way we think about the interrelationship of time and space. Economists and legal scholars, always looking over their shoulders at the "hard sciences," traditionally have applied the same standards in their own fields. But actually, "brilliance"—new ideas that turn conventional thinking on its head—should count heavily against an economic or legal theory . . . .
Not everyone agrees that the intent of the framers is what counts in constitutional interpretation. But virtually everyone agrees that a bedrock principle of law is consent of the governed. A brilliant theory is by definition one that would not occur to most people. The general problem with brilliant legal theories is: How can most people have agreed to something that they could not conceive of?
Supreme Court decisions often fall victim to similar brilliant interpretations. Perhaps the most famous recent example is Justice Rehnquist's 1976 opinion inNational League of Cities v. Usery, which struck down the federal minimum wage for state employees. Two brilliant Harvard professors have argued that Rehnquist's opinion actually established a constitutional right to welfare. In his treatise, American Constitutional Law, Professor Lawrence Tribe explains that Justice Rehnquist "seemed sometimes to lay the foundations for precisely such a theory"; that some of the language "may be read to suggest" this theory; that the theory makes sense of "an otherwise problematic distinction"; and that a tension in the cases "may well reflect an unarticulated perception" that the theory is correct. A footnote adds that the author doubts whether any other explanation makes sense. Only through this brilliant re-interpretation, then, can the Court's decision be salvaged.
Of course, this interpretation was so dazzlingly brilliant just because it was painfully obvious that Justice Rehnquist had no such thing in mind. Indeed, the only members of the Court who were remotely likely to be receptive to a constitutional right to welfare were the liberals, all of whom dissented from Justice Rehnquist's opinion. There is something inherently suspect about an interpretation so clever that it never would have occurred to the speaker or the audience.
If my arguments are correct, then the standards for judging academic work in economics and constitutional law should be reconsidered. There is a tendency for high-flying theorists to scoff at those whose work stays closer to the ground. Icarus, too, was scornful of pedestrianism.
H/T Sam Bray.
Posted by Marc DeGirolami on August 27, 2013 at 11:25 AM | Permalink
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The slightly longer law review article version of the argument (referenced at the end of the TNR essay) is here: http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2403&context=facpubs
Posted by: Orin Kerr | Aug 27, 2013 11:33:04 AM
"Of course, this interpretation was so dazzlingly brilliant just because it was painfully obvious that Justice Rehnquist had no such thing in mind. Indeed, the only members of the Court who were remotely likely to be receptive to a constitutional right to welfare were the liberals, all of whom dissented from Justice Rehnquist's opinion. There is something inherently suspect about an interpretation so clever that it never would have occurred to the speaker or the audience. "
I think that your standard of legitimacy here is whether or not Rehnquist would have approved of it (without carrying this on to other things which Rehnquist didn't approve of, like minorities voting). However, you're applying that same standard to Rehnquist's decision.
Posted by: Barry | Aug 27, 2013 5:37:27 PM
Nice post, Marc.
Posted by: Chris Lund | Aug 27, 2013 9:35:41 PM
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