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Monday, January 28, 2008

What is Stanley Fish Thinking (Again)?

Over at his great perch on the NYT website, Stanley Fish has launched the claim that constitutional theory doesn't really matter, especially in the context of presidential candidate selection. In part a review of Jim Fleming and Sotirios Barber's new book on the basics of constitutional interpretation, Fish's post advances the argument that in terms of adjudicating the merits of the positions withing the complex debate among "strict constructionism, originalism (in several versions), textualism, pragmatism, the living constitution, etc," "there are no practical issues at stake in this debate. "

I beg to differ. I'll use just one example--the Eighth Amendment's prohibition on cruel and unusual punishments. If one is a Justice on the Supreme Court in 1974, and also an adherent to living constitutionalism, which I take to mean that one finds the meaning of the Constitution from its words in conjunction with larger trends in related social values as well as respect for evolving precedent, it would make substantial sense to think that the death penalty is prohibited under the Constitution. After all, Furman was decided the year before, with a majority of the justices ruling, each in their own way, that the death penalty statute in Georgia was constitutionally problematic.  By contrast, if one took an historical approach to the original meaning of the 8th Amendment, I think one would be hard pressed to find support for the proposition that the 8th Amendment's prohibition against cruel and unusual punishment entails per se opposition to the death penalty.

If I'm right about this, and that the death penalty is a matter of some practical importance, then Fish needs to think again about whether constitutional interpretation strategies actually matter.  Indeed Fish's evidence for thinking they don't matter seems somewhat strained. Consider what he writes:

The urgency and occasional stridency of the debates in this area suggest that it matters very much because a judge’s interpretive theory will strongly influence, if not dictate, his or her decisions, won’t it? No. When Professor Lief Carter asked a number of judges to talk about their interpretive theories, he found that “the conversation would quickly drift from the theoretical points” he had introduced to anecdotal accounts of practice and opinion writing. “Most of the time,” said one judge, “you reach the result that’s fair and then build your thinking around it.”

Maybe I'm misunderstanding something but Fish's evidence confirms through anecdotal evidence that most judges are lazy or indifferent to theoretical consistency, not that theoretical disputes have no practical significance if one engages in these disputes seriously. I can understand why Fish's view --"The first thing a judge does is not reach for a theory, but reach for the storehouse of precedents and formulas and three- or five- or ten-part tests and use them to decide under what legal rubric the case is to be placed and analyzed"--might be more applicable to lower court judges facing settled areas of law, but even that move is a reflection of a constitutional interpretation theory: namely, one that puts respect for precedent above all other modes of interpretation.

Moreover, reaching for doctrinal tests from precedent is surely not the first or only stratagem when the law is open-textured, a matter of first impression, or when the  judge in question sits on the highest court. For those cases, theoretical approaches may be a good bit more than "merely possible ... building blocks in the fashioning of an argument." If I'm right, then the practical importance of these debates is a reason for caring, pace Fish, about what presidential candidates say about their theories of constitutional interpretation.

Posted by Administrators on January 28, 2008 at 07:39 PM in Article Spotlight, Constitutional thoughts, Dan Markel | Permalink


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Agreed on all points. His argument from anecdote reminds me strongly of Malcolm Gladwell's specious argument in _Blink_ that there is no such thing as expertise. Look at all these experts, he says, who get things right without using any expertise.
Okay, dummy, maybe expertise isn't what you're pretending to think it is. Likewise, to Fish: dummy, probably constitutional interpretation isn't the purely deductive, mechanistic thing you're pretending to think it is. That doesn't mean it doesn't (pragmatically) exist.

Posted by: Jim von der Heydt | Jan 30, 2008 11:22:09 AM

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