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Thursday, November 03, 2011

Constitutional Pragmatism

I am working on a long term project regarding the use of pragmatism as a method of constitutional interpretation. Perhaps Dan Farber and Richard Posner are the most well known pragmatists, but they certainly don't agree on many things. Indeed one major criticism of pragmatism is that it is vague. Another is that it amounts to nothing more than consequentialism, and thus lacks any moral component. Yet several noteworthy and disparate scholars agree that the U.S. Supreme Court's interpretive approach is best described as pragmatic, despite all of the focus in constitutional debates on originalism or on variants of living constitutionalism (though critics could argue that pragmatism is a default conclusion, in that the Court does not employ any single method in its majority opinions). What I've been examining is the types of pragmatism the Court actually uses because I believe there are many. For example, I believe constitutional pragmatism is not necessarily inconsistent with the Court taking account of ethical and/or moral considerations.

Last term, the U.S. Supreme Court decided a case in which important, but different, pragmatic arguments were on both sides. In JDB v. North Carolina, the Court ruled 5-4 that the police acted unconstitutionally in questioning a 13 year old boy without providing the Miranda warning. Authorities had removed the boy from his school classroom, and questioned him in a conference room for about 30 minutes before he confessed to a theft. Justice Sotomayor wrote the majority opinon and said that "commonsense" supported her view. She used the term several times (always as one word, despite other Justices sometimes using two words). For example, she wrote that "It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child's age properly informs the Miranda custody analysis." She used empirical data and precedents to support her conclusion as well.

I call Somayor's approach "commonsense pragmatism," and the Court has used such a method (for good or bad) on many occasions. Think of "I know it when I see it." In dissent, Justice Alito criticized Sotomayor's "reality-based approach." He explained that Miranda had actually reversed the Court's prior case by case approach to determining custody, and had replaced that method with a clear and simple instruction. He then argued that Sotomayor had muddled things by requiring case by case inquiries into the situations of specific minors. I call Alito's argument "efficiency-oriented pragmatism" (other efficiency types would include administrative convenience, and slippery slope arguments). I will discuss several other types of pragmatism in future posts.

Posted by Mark kende on November 3, 2011 at 06:44 PM in Constitutional thoughts, Criminal Law, Legal Theory | Permalink


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We see plenty of commonsense pragmatism in the substantive due process and equal protection cases.

Pragmatism will always be the rallying cry because no justice can imagine themselves appearing impractical (synonymous with useless). That which might appear obvious now ("I know it when I see it") might not have been so obvious previously, and yet we cannot imagine it being otherwise lest we too fall out of touch with reality. Imagine arguing against equal protection for women now, yet the congress that passed the 14th amendment probably did not imagine that it would protect women from discrimination.

Seems so obvious now.

Posted by: Amit Chhabra | Nov 7, 2011 11:46:32 PM

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