Dogs Walking on Their Hind Legs? On Judicial Critique of Constitutional Theory

I've gotten interested over the last few years in the separation between constitutional theory and constitutional adjudication. That separation is a hearty perennial--it is a feature of the broader difference between speculative and practical reason, but in Anglo-American law it takes on certain distinctive characteristics that reflect the character of judicial office as contrasted with other offices, roles, or duties. And it is an old division, stretching back centuries and manifesting itself in many different ways, but with connecting threads through the ages. Justice Story once noted it in characteristically vivid terms in the course of firing a kind of anti-Jeffersonian broadside:

 [T]he most unexceptionable source of collateral interpretation is from the practical exposition of the government itself in its various departments upon particular questions discussed, and settled upon their single merits. These approach the nearest in their own nature to judicial expositions, and have the same general recommendation, that belongs to the latter. They are decided upon solemn argument, pro re nata, upon a doubt raised, upon a lis mota, upon a deep sense of their importance and difficulty, in the face of the nation, with a view to present action, in the midst of jealous interests, and by men capable of urging, or repelling the grounds of argument, from their exquisite genius, their comprehensive learning, or their deep meditation upon the absorbing topic. How light, compared with these means of instruction, are the private lucubrations of the closet, or the retired speculations of ingenious minds, intent on theory, or general views, and unused to encounter a practical difficulty at every step! 

In this new paper that Kevin Walsh and I have written together to be published in the Notre Dame Law Review, we focus on the ways in which two prominent judges--Richard Posner and J. Harvie Wilkinson III--write extrajudicially about constitutional theory. We then compare those writings against a selection of their decisions in three areas of constitutional law: the Second Amendment, partial-birth abortion, and the Establishment Clause. The purpose of the comparison is to assess the impact of the constitutional theories of these judge-scholars on their own constitutional jurisprudence but also (and more importantly) to understand better precisely what it is that these judge-scholars are doing when they write about constitutional theory. We conclude that (1) there are agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role; (2) judicial pragmatism and judicial restraint (the judges' respective favored theories) exert limited influence on their own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence; and (3) judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions — character traits that pertain to judicial excellence — that can and should be criticized on their own terms.

Judge Posner (adapting rather liberally from Samuel Johnson's aphorism) once wrote that a judge writing about constitutional law "is like a dog walking on his hind legs: the wonder is not that it is done well, but that it is done at all." Yet we see it somewhat differently. When judges write extrajudicially about constitutional law, they are not dogs walking on their hind legs. They walk on all fours in developing their own accounts of the good judge at work in constitutional cases. And the insights derived from these accounts illuminate the need for further reflection on the nature of judicial role and judicial duty within the American constitutional system. 

For some further reflections on the issue of judicial disposition or character related to the paper, see this post on Justice Frankfurter and judicial restraint, this post about the place of judicial disposition, and this post about the move from theory to disposition in the description of the good judge. Comments on the paper are welcome.