At the risk of turning this blog into footnotes-to-Balkinization, rereading Philip Pettit's wonderfully concise brief for consequentialism made me think a bit on Brian Tamanaha's takedown of Michael Perry's odd claim that atheism provides inadequate grounding for human rights. Tamanaha notes that theists are on equally shaky ground, since a loss of faith in the deity undermines the moral code that flows from divine command just as surely as a loss of faith in The Moral Law Within does for the Kantian atheist.
I wonder if perhaps the theist's worry is better interpreted as a claim that non-consequentialism becomes unstable without a god, combined with the assumption that consequentialist derivations of human rights are somehow deficient. And I actually think there's something to the first half of that. As Pettit puts it when explaining the attractions of consequentialism: "There may be features that mark [values that ought to be honored in one's choices, rather than promoted by one's choices] off from other values, but why do those features matter so much? That question typically goes unconsidered by non-consequentialists. Not only do they have a duality then where consequentialists have a unity; they also have an unexplained duality."
Divine-command theists have an easy rejoinder to Pettit: human dignity, etc., is to be honored rather than consequentially (and hence contingently) promoted because God says so. The insertion of God allows non-consequentialists to have a monist theory, just like consequentialists. The Tamanaha-inspired rejoinder might be: but you are still held hostage to the possibility that God does not exist, which is on no more secure footing than whatever meta-ethical grounding a Kantian could come up with. And this is right, but it's a different sort of insecurity. Skeptical meta-ethical arguments of the John Mackie sort--that it's just bizarre to imagine any sort of natural property that would automatically carry the ought-to-be-done-ness [especially of the dualist, non-consequentialist sort!] that characterizes morality--really fail against theism. It's really easy to imagine divine-command morality; you just straightforwardly analogize secular authority and attach it to an omnipotent being.
But what's happened is that the weak point in the argument has shifted from the meta-ethical (what sort of thing is morality; how could it be dualist?) to the straightforwardly metaphysical (how could there be a god of the sort my meta-ethics posits?). And here the theists run into trouble; the existence of such a god is no more reasonable for being easy to imagine, because this ease is fully explained by reasons that have nothing to do with the truth of the claim. Unicorns are easy to imagine, too.
At any rate, though, none of this is an issue unless one concedes that there's something objectionable about consequentialism. And I think most worries on this score are due to a misunderstanding of the theory, which can in fact provide a secure basis--on both the personal and the institutional levels--for human rights. After all, as Austin so wonderfully put it: "It was never contended or conceived by a sound, orthodox utilitarian, that the lover should kiss his mistress with an eye to the common weal." (Province of Jurisprudence Determined, Hart ed., p. 108; quoted in Pettit.)
Wednesday, August 22, 2007
Thursday, August 16, 2007
What would make me wrong?
Commenter William asks (1, 2), in response to my remarks on exclusive originalism, the tough-but-fair question of whether anything could convince me that I'm wrong. More specifically, he wants to know whether:
There are typically two separate questions involved in these debates: A, the nature of constitutional rules, and B, the best method[s] for discovering, understanding, interpreting, and applying them. One move that is made by many otherwise quite dissimilar theorists is to claim that the answer to A strongly constrains the answer to B. Dworkin (1986) thinks the nature of law as an "interpretive concept" that can justify the use of coercion within a political community gives you (or at least Hercules) a method for negotiating the back-and-forth between facts of political history and facts about morality that will lead you the truth about propositions of (constitutional) law. Kesavan and Paulsen (2003) think the nature of the constitution as an authoritative text proclaiming itself supreme law entails a particular sort of originalist textualism with specific roles for different kinds of contemporary evidence to play. Etc.
I think what unites pluralists--resulting, I suspect, in a serious rhetorical disadvantage--is that they (we, I suppose) don't think solving A gets you very far with B. On the contrary, understanding A explains why you shouldn't hope to find any sort of one-size-fits-all answer to B. (And some pluralists don't even seem to see A as a real question at all.) I look at the United States Constitution and I see a particular instantiation of the constitutionalist project of empowering and limiting government through public rules. So a rough answer to A is that constitutional rules are simply those accepted as regulating good inferences about constitutional validity. Constitutional meaning is an emergent and possibly heterogenous property of successful constitutional argument over the document.
Within the American version of this project, the constitutional text plays a peculiar role: it's a supreme written text within a common-law system, and a blueprint for governmental structure that is silent with respect to a great deal of what the state actually does and how (compare). If we want to know how this all works, we have to look and see. But already this very deflationary conceptualization suggests that given reasonably uncontroversial assumptions about American political development, how institutions and social meanings change, and the political use of symbols, one ought not expect too much uniformity.
But what about William's hypothetical? What would it mean if most people thought that the Constitutional was "law" in a leave-it-to-lawyers sort of way, and if lawyers were always originalists? A lot turns on what is meant by that last conditional. Suppose we take it to imply universal agreement to the claim that "the meaning of a constitutional/statutory provision is fixed at its enactment" (call this claim F). Some might be expectations originalists, some might put more weight on precedent than others, some would believe some clauses to reference moral truths, but none would deny that core tenet. In such a world, I'd probably have to sign onto some variant of originalism, yes.
But possibly not. It all depends on how F is deployed in legal reasoning, and what happens when it seems to conflict with other principles of constitutional law. How are lawyers trained to deal with F--do they spend a lot of time studying and practicing originalist theories of statutory and constitutional interpretation, compared to the time they spend on, e.g., common-law reasoning? If it turns out that F is only rarely brought into play (when precedents are thin on the ground, say), and judges routinely allow F-based arguments to be outweighed by other sorts of reasoning without being countered directly, then I think a theorist would have reason to deny the truth of exclusive originalism concerning constitutional meaning.
In other words, it would not be absurd in that hypothetical to assert that F, despite being both universally affirmed and theoretically "deeper" than, e.g., claims about the validity of secret drafting histories, was actually not particularly central to the practice of constitutional law. Now, it would be foolish and possibly malpractice for me to assert not-F while arguing a case in court; I ought merely use arguments that avoid issues of original meaning entirely. But the question here is about the theorist or judge, not advocate. (We care about citizens and politicians, too, but the hypo is explicitly about an artificially legalist constitutional culture.)
Perhaps the originalist impulse flows from an insistence on formal coherence among principles of constitutional meaning and an attraction to "deeper" (e.g., F) over "shallower" ones (e.g., "drafting history may never be consulted"). But I don't think this is always the right way to go with constitutions; sometimes the "deeper" principles should give way. This by no means implies that "anything goes"; constitutional rules exist and one can misinterpret them, both by making bad arguments from within particular modalities and by failing to give proper weight to the proper forms of argument. As for what that balance is, alas, my theoretical commitments force me to admit that I simply don't have enough exposure to the actual practice to have any confidence in my views. It's possible that the correct balancing really is to privilege original meaning over all else, but given the considerations above, I would need to see much more than a tradition of lip service to warrant concession.
[Still trying to sort out the Leiter-on-disagreement stuff.]
[Yes, a lot of this is influenced by Dennis Patterson's Law and Truth.]
So let me try to clarify what sort of practice-based arguments I believe are relevant to the nature and application of constitutional meaning, and why. As with everything on this blog, this is all very sketchy and tentative.IF it were the case that most people have always thought that the Constitution was a "law" in the sense of the sort of thing that lawyers ought to be charged with interpreting, and if it ALSO were the case that lawyers have always been mostly originalists, would that constitute a sufficient argument for originalism?
There are typically two separate questions involved in these debates: A, the nature of constitutional rules, and B, the best method[s] for discovering, understanding, interpreting, and applying them. One move that is made by many otherwise quite dissimilar theorists is to claim that the answer to A strongly constrains the answer to B. Dworkin (1986) thinks the nature of law as an "interpretive concept" that can justify the use of coercion within a political community gives you (or at least Hercules) a method for negotiating the back-and-forth between facts of political history and facts about morality that will lead you the truth about propositions of (constitutional) law. Kesavan and Paulsen (2003) think the nature of the constitution as an authoritative text proclaiming itself supreme law entails a particular sort of originalist textualism with specific roles for different kinds of contemporary evidence to play. Etc.
I think what unites pluralists--resulting, I suspect, in a serious rhetorical disadvantage--is that they (we, I suppose) don't think solving A gets you very far with B. On the contrary, understanding A explains why you shouldn't hope to find any sort of one-size-fits-all answer to B. (And some pluralists don't even seem to see A as a real question at all.) I look at the United States Constitution and I see a particular instantiation of the constitutionalist project of empowering and limiting government through public rules. So a rough answer to A is that constitutional rules are simply those accepted as regulating good inferences about constitutional validity. Constitutional meaning is an emergent and possibly heterogenous property of successful constitutional argument over the document.
Within the American version of this project, the constitutional text plays a peculiar role: it's a supreme written text within a common-law system, and a blueprint for governmental structure that is silent with respect to a great deal of what the state actually does and how (compare). If we want to know how this all works, we have to look and see. But already this very deflationary conceptualization suggests that given reasonably uncontroversial assumptions about American political development, how institutions and social meanings change, and the political use of symbols, one ought not expect too much uniformity.
But what about William's hypothetical? What would it mean if most people thought that the Constitutional was "law" in a leave-it-to-lawyers sort of way, and if lawyers were always originalists? A lot turns on what is meant by that last conditional. Suppose we take it to imply universal agreement to the claim that "the meaning of a constitutional/statutory provision is fixed at its enactment" (call this claim F). Some might be expectations originalists, some might put more weight on precedent than others, some would believe some clauses to reference moral truths, but none would deny that core tenet. In such a world, I'd probably have to sign onto some variant of originalism, yes.
But possibly not. It all depends on how F is deployed in legal reasoning, and what happens when it seems to conflict with other principles of constitutional law. How are lawyers trained to deal with F--do they spend a lot of time studying and practicing originalist theories of statutory and constitutional interpretation, compared to the time they spend on, e.g., common-law reasoning? If it turns out that F is only rarely brought into play (when precedents are thin on the ground, say), and judges routinely allow F-based arguments to be outweighed by other sorts of reasoning without being countered directly, then I think a theorist would have reason to deny the truth of exclusive originalism concerning constitutional meaning.
In other words, it would not be absurd in that hypothetical to assert that F, despite being both universally affirmed and theoretically "deeper" than, e.g., claims about the validity of secret drafting histories, was actually not particularly central to the practice of constitutional law. Now, it would be foolish and possibly malpractice for me to assert not-F while arguing a case in court; I ought merely use arguments that avoid issues of original meaning entirely. But the question here is about the theorist or judge, not advocate. (We care about citizens and politicians, too, but the hypo is explicitly about an artificially legalist constitutional culture.)
Perhaps the originalist impulse flows from an insistence on formal coherence among principles of constitutional meaning and an attraction to "deeper" (e.g., F) over "shallower" ones (e.g., "drafting history may never be consulted"). But I don't think this is always the right way to go with constitutions; sometimes the "deeper" principles should give way. This by no means implies that "anything goes"; constitutional rules exist and one can misinterpret them, both by making bad arguments from within particular modalities and by failing to give proper weight to the proper forms of argument. As for what that balance is, alas, my theoretical commitments force me to admit that I simply don't have enough exposure to the actual practice to have any confidence in my views. It's possible that the correct balancing really is to privilege original meaning over all else, but given the considerations above, I would need to see much more than a tradition of lip service to warrant concession.
[Still trying to sort out the Leiter-on-disagreement stuff.]
[Yes, a lot of this is influenced by Dennis Patterson's Law and Truth.]
Monday, August 13, 2007
Griffin vs. originalism -- coming soon!
More on Leiter and disagreement soon.
Stephen Griffin has put up something of a precis of his upcoming article attacking exclusive originalism--the sort that proclaims original meaning to be the only legitimate locus of meaning, with all other interpretive techniques valid only insofar as they are proxies for it. Unsurprisingly, I'm quite interested to see the finished piece; I'm sympathetic to his goal, and his points seem quite solid.
I'm particularly interested in how he develops his first critique, which I see as the more essential: showing that other modalities of interpretation have a central place in our constitutional tradition, and that originalists therefore face a heavy burden of justification in showing that they ought to be jettisoned.
My worry is that there's a reasonably strong counter to this move that must be acknowledged and refuted. The originalist can claim that [some] nonoriginalist modalities have a real place in ascertaining constitutional meaning, but that meaning itself is nonetheless fixed at ratification/amendment; the use of precedent or structural considerations can only be instrumentally justified as the best way to remain true to this meaning over time. Something like this seems to be Solum's view: his "Constitutional Stare Decisis" presents an essentially lexical ordering of precedent, plain meaning, structure, original meaning, and rule-ishness as considerations ... and yet despite the lowly place original meaning is assigned in the algorithm, his is still a "formalist legal reasoning that aims at the interpretation and application of the original meaning of the Constitution."
This objection does two things. First, it provides a more credibly positivist rejoinder to the claim that our constitutional practice just isn't exclusively originalist than does the typical "history-of-usurpation" one. What I mean is that no constitutional theory can assert that official practice is wholly detached from the constitutional rules; this would fail to acknowledge that we are seeking the meaning of our constitution, not restoring a lost one. But a sophisticated originalism can explain away the persistence of alternate modalities by showing them to be consistent in theory with exclusive originalism, even if misapplied in practice. Second, it gives reasons--reasons immanent within the practice of constitutionalism and legality--for preferring this view of meaning. A number of authors elaborate on the Marshallian idea that interpreting the constitution is just saying what the law is: original meaning + formalist method is what it means to be bound by law, and attempts to deny this go against the very point of legality.
My four readers will know that I don't think this argument works. But it's an incredibly seductive one, especially insofar as it may well work for statutes: the most sensible understanding of the constitutional allocation of legislative authority might be an originalist one. So where does the constitutional argument fail?
I see two points of attack. The first is to refuse to give ground in interpreting our legal practices: claiming that the varities of constitutional argument are (insofar as they are valid) simply guides to original meaning is false to the reality of constitutionalism, a failure to accept the facts on the ground. While this tack of 'textual fundamentalism' might, for example, be valid in the interpretation of authoritative religious documents, this is only because of the peculiar nature of divine authority at work in such cases--while we revere the Founders, we don't take it that far. In short, this attack just presses the positivist argument harder: you're not talking about our constitution, you're talking about one we used to have. There's no more need to defend this argument against "but it can't change like that; it says so itself!" than there is to defend the legality of the reconstruction amendments' ratification: the fact of practice is fundamental, the justification secondary. (Perhaps this is what Griffin does in his article; the post hints at this.)
The second attack takes on what I think of as the Marshallian Fallacy--the claim that, as some sort of analytic truth, "constitutional meaning:constitutional text::statutory meaning:statutory text". (Repeating the Supremacy Clause loudly is not an answer.) The first step is to see just how question-begging it is: why on earth would we understand the meaning of our legal criteria of validity--what it takes for a statute (for example) to be consistent with the constitution--by simply looking to how we understand the meaning of that statute? No: precisely because of the supremacy of constitutions, statutory interpretation must be guided by considerations internal to the nature of the constitution rather than the other way around. Originalism's (possible) suitability to the outputs of the constitutional structure has basically nothing to do with its propriety for understanding that structure.
Once this is recognized, I think the legality argument falls to pieces. Because to the extent that the nature of statutory meaning can be debated (rather than simply fumbled about for by Thinking Like a Lawyer), the arguments are going to go to the nature of Congressional and executive branch authority, and similar considerations internal to the constitutional structure (or republican theory by reference). And any attempt to apply these arguments to the meaning of constitutional provisions is going to founder on the devastating dead-hand objections that have long been recognized (Marmor's article is a nice, brief treatment). Precisely because of the Framers' relationship to us, arguments from within legality are going to cut precisely the other way: against originalism and towards precedent, established practice, contemporary meaning, and the like.
I think it is only by making arguments of this sort that the seductive appeal of originalism can be defused. For 'it takes a theory to beat a theory' reasons, I suspect that only by showing the propriety and appeal on grounds of legality of nonoriginalist theories of meaning can this battle be won.
*: To forestall objections that I'm misattributing claims to Solum: his argument-from-legality is about neoformalist reasoning simpliciter, and he simply assumes original meaning. But I think some authors have in mind similar arguments at the level of meaning, and see them not as instrumentalist, exactly, but as functional: for constitutions to be what they are, we need OM.
As for Solum's affirmative defense of original meaning as conceptually necessary, here and here ... I'm not convinced. The sentence meaning of a constitutional clause at the time of its enactment is indeed fixed by the time and audience of that clause; but the sentence meaning of that clause right now was not so fixed. It would be a reductio of Grice to think that the first declamation of each unique English sentence fixed its sentence-meaning forever, and I think it equally wrong to insisting that each textual instantiation fixes it for that text. The only warrant for so claiming is sneaking in pragmatics: the contextual fact that the abstracted-intentions that constitute sentence meaning, when dealing with a text, are typically fixed on its time of creation. Indeed, Solum's refinement of "clause meaning" as a subset of "sentence meaning" adds in precisely the contextual background ("1) that the clause is part of the United States Constitution, (2) that it was part of a particular type of legal document, (3) that it was uttered in the context of the whole document") that I insist is both implicit and a question of pragmatics in every extraction of sentence meaning from texts. Solum already concedes, by this refinement, that the sentence meaning of constitutional texts is constituted by particular genre conditions unique to legal/constitutional ones; it's unclear what then justifies the insistence on time-fixity if not something like the Marshallian-functionalist argument. Whew!
Stephen Griffin has put up something of a precis of his upcoming article attacking exclusive originalism--the sort that proclaims original meaning to be the only legitimate locus of meaning, with all other interpretive techniques valid only insofar as they are proxies for it. Unsurprisingly, I'm quite interested to see the finished piece; I'm sympathetic to his goal, and his points seem quite solid.
I'm particularly interested in how he develops his first critique, which I see as the more essential: showing that other modalities of interpretation have a central place in our constitutional tradition, and that originalists therefore face a heavy burden of justification in showing that they ought to be jettisoned.
My worry is that there's a reasonably strong counter to this move that must be acknowledged and refuted. The originalist can claim that [some] nonoriginalist modalities have a real place in ascertaining constitutional meaning, but that meaning itself is nonetheless fixed at ratification/amendment; the use of precedent or structural considerations can only be instrumentally justified as the best way to remain true to this meaning over time. Something like this seems to be Solum's view: his "Constitutional Stare Decisis" presents an essentially lexical ordering of precedent, plain meaning, structure, original meaning, and rule-ishness as considerations ... and yet despite the lowly place original meaning is assigned in the algorithm, his is still a "formalist legal reasoning that aims at the interpretation and application of the original meaning of the Constitution."
This objection does two things. First, it provides a more credibly positivist rejoinder to the claim that our constitutional practice just isn't exclusively originalist than does the typical "history-of-usurpation" one. What I mean is that no constitutional theory can assert that official practice is wholly detached from the constitutional rules; this would fail to acknowledge that we are seeking the meaning of our constitution, not restoring a lost one. But a sophisticated originalism can explain away the persistence of alternate modalities by showing them to be consistent in theory with exclusive originalism, even if misapplied in practice. Second, it gives reasons--reasons immanent within the practice of constitutionalism and legality--for preferring this view of meaning. A number of authors elaborate on the Marshallian idea that interpreting the constitution is just saying what the law is: original meaning + formalist method is what it means to be bound by law, and attempts to deny this go against the very point of legality.
My four readers will know that I don't think this argument works. But it's an incredibly seductive one, especially insofar as it may well work for statutes: the most sensible understanding of the constitutional allocation of legislative authority might be an originalist one. So where does the constitutional argument fail?
I see two points of attack. The first is to refuse to give ground in interpreting our legal practices: claiming that the varities of constitutional argument are (insofar as they are valid) simply guides to original meaning is false to the reality of constitutionalism, a failure to accept the facts on the ground. While this tack of 'textual fundamentalism' might, for example, be valid in the interpretation of authoritative religious documents, this is only because of the peculiar nature of divine authority at work in such cases--while we revere the Founders, we don't take it that far. In short, this attack just presses the positivist argument harder: you're not talking about our constitution, you're talking about one we used to have. There's no more need to defend this argument against "but it can't change like that; it says so itself!" than there is to defend the legality of the reconstruction amendments' ratification: the fact of practice is fundamental, the justification secondary. (Perhaps this is what Griffin does in his article; the post hints at this.)
The second attack takes on what I think of as the Marshallian Fallacy--the claim that, as some sort of analytic truth, "constitutional meaning:constitutional text::statutory meaning:statutory text". (Repeating the Supremacy Clause loudly is not an answer.) The first step is to see just how question-begging it is: why on earth would we understand the meaning of our legal criteria of validity--what it takes for a statute (for example) to be consistent with the constitution--by simply looking to how we understand the meaning of that statute? No: precisely because of the supremacy of constitutions, statutory interpretation must be guided by considerations internal to the nature of the constitution rather than the other way around. Originalism's (possible) suitability to the outputs of the constitutional structure has basically nothing to do with its propriety for understanding that structure.
Once this is recognized, I think the legality argument falls to pieces. Because to the extent that the nature of statutory meaning can be debated (rather than simply fumbled about for by Thinking Like a Lawyer), the arguments are going to go to the nature of Congressional and executive branch authority, and similar considerations internal to the constitutional structure (or republican theory by reference). And any attempt to apply these arguments to the meaning of constitutional provisions is going to founder on the devastating dead-hand objections that have long been recognized (Marmor's article is a nice, brief treatment). Precisely because of the Framers' relationship to us, arguments from within legality are going to cut precisely the other way: against originalism and towards precedent, established practice, contemporary meaning, and the like.
I think it is only by making arguments of this sort that the seductive appeal of originalism can be defused. For 'it takes a theory to beat a theory' reasons, I suspect that only by showing the propriety and appeal on grounds of legality of nonoriginalist theories of meaning can this battle be won.
*: To forestall objections that I'm misattributing claims to Solum: his argument-from-legality is about neoformalist reasoning simpliciter, and he simply assumes original meaning. But I think some authors have in mind similar arguments at the level of meaning, and see them not as instrumentalist, exactly, but as functional: for constitutions to be what they are, we need OM.
As for Solum's affirmative defense of original meaning as conceptually necessary, here and here ... I'm not convinced. The sentence meaning of a constitutional clause at the time of its enactment is indeed fixed by the time and audience of that clause; but the sentence meaning of that clause right now was not so fixed. It would be a reductio of Grice to think that the first declamation of each unique English sentence fixed its sentence-meaning forever, and I think it equally wrong to insisting that each textual instantiation fixes it for that text. The only warrant for so claiming is sneaking in pragmatics: the contextual fact that the abstracted-intentions that constitute sentence meaning, when dealing with a text, are typically fixed on its time of creation. Indeed, Solum's refinement of "clause meaning" as a subset of "sentence meaning" adds in precisely the contextual background ("1) that the clause is part of the United States Constitution, (2) that it was part of a particular type of legal document, (3) that it was uttered in the context of the whole document") that I insist is both implicit and a question of pragmatics in every extraction of sentence meaning from texts. Solum already concedes, by this refinement, that the sentence meaning of constitutional texts is constituted by particular genre conditions unique to legal/constitutional ones; it's unclear what then justifies the insistence on time-fixity if not something like the Marshallian-functionalist argument. Whew!
Tuesday, August 07, 2007
Leiter against Dworkin, the continuing series
I love reading Brian Leiter's articles. He does a great job combining clarity with erudition, making clear where his arguments fit in with those that have been advanced by others while avoiding the temptation to romp over a field of defeated straw men. (While his readings of Dworkin aren't exactly "generous," he's hardly guilty of distorting the substance of Dworkin's arguments, even if his conclusions about their merit are rather vituperative*.) His newest paper, available here, doesn't disappoint: I think it's his clearest and most persuasive articulation yet of why he thinks Dworkin's argument-from-disagreement--as glossed by Scott Shapiro in his wonderful The Hart-Dworkin Debate: A Short Guide For The Perplexed--fails. But I'm still not entirely convinced that theoretical disagreement can be pushed to the side.
In a nutshell, Leiter's argument is that 1, we have no good reason to treat disagreement about criteria of legal validity as the central problem for theories of general jurisprudence, since the massive agreement that characterizes legal systems is of far greater import; 2, to the extent we care about understanding such disagreement, the two natural positivist explanations (there is no truth of the matter about some legal disputes, and thus claims to the contrary are either mistaken or disingenuous) are good enough. Positivism, then, remains superior to Dworkinian interpretivism on the basis of the standard criteria (simplicity, consilience, conservatism) of theory selection. (But go read it. It's very good. Shapiro's, too, if you haven't.) Now, I'm not convinced that interpretivism is the way to go (nor do I think Shapiro's suggested solution works, either). I do think, however, that disagreement about the criteria of legal validity cannot be satisfactorily explained away by an error theory of the sort Leiter supposes.
To some degree this may be just a matter of emphasis. I care about constitutionalism, first and foremost; I look to general jurisprudence only insofar as it relates to this, and think it a mistake to just identify the legal system with the state apparatus. Since I don't really worry about, e.g., tort law or contracts, the fact of massive agreement on these topics isn't so salient. What concerns me is fundamental disagreement over the criteria for constitutionally legitimate activity, about the powers of and limits on the state, and here I just don't think you can consider the topic "marginal." I suppose that one could respond with the claim that, even here, the vast majority (however measured) of issues really are settled (even if perhaps in a decidedly suboptimal way); that's the difference between the USA and, say, Somalia or Iraq. But I just don't think this is good enough, at least not in the United States (which may be uniquely problematic in this respect). At the very least, the class of officials on whose practices constitutional criteria of validity supervene include a number executive and legislative branch actors, besides the usual Article 3 suspects ... and if you don't see deep disagreement over basic questions of constitutional authority there, I don't know what to say.
So the reason we cannot, as Leiter urges, be content with simply saying that constitutional validity norms supervene on convergent constitutional practice and that where such convergence fails, the norms run out, is that this is just not good enough for even a naturalized project of constitutional theory. What I mean by this is straightforward, and ultimately owes much to Leiter's own writings: we want to understand how it is that societies structure political institutions and procedures so that the emergent states are both empowered and constrained in credible, public ways. And to do this, we need a concept of constitutional norms that will tell us exactly how these norms supervene on the practice, what degree of convergence is required for truth-talk of them to be apt (such that disagreement reflects epistemic rather than metaphysical failure), and perhaps even how they reflect or incorporate extra-constitutional norms.
To clarify: I am not saying that a naturalized constitutionalism requires us to deny constitutional indeterminacy; that would be lunacy (or a solid reductio). But it does require us to explain the supervenience relation in a way that fits into this project--or, more pessimistically, to show us the limits of the constitutionalist project by highlighting the precarious nature of any such norms. Theoretical disagreement has to be a central problem for any theory of constitutionalism because the project is about creating structures that will withstand it.
In some ways, this might be seen as a naturalist analog of Raz's authority argument. But rather than claiming that our intuitions about legality show that laws must be individuated such that they could, in theory, guide conduct, the claim is that understanding the (social-scientific!) project of constitutionalism requires a theory of the meaning of consitutional norms, and their relation to the practices on which they supervene, rich enough to help us see when and to what degree they can be institutionalized and sustained#. Even if many of the actors within the practice will--for predictable, Leiter-noted reasons--consistently overstate constitutional determinacy, we need to understand when and why there is or isn't a truth of the matter.
* -- "In any case, what the preceding shows, rather clearly, is that when Dworkin declares “there is no positive evidence of any kind that when…judges seem to be disagreeing about the law they are really keeping their fingers crossed” (as the Disingenuity Account would have it), what he really ought to have said is, “There may be lots of evidence, but I have made no effort to consider any of it.”" -- Leiter, p.39. Ouch.
# -- This might lead towards Mark Greenberg's "rational relation" doctrine. Or it might not! Stay tuned!
In a nutshell, Leiter's argument is that 1, we have no good reason to treat disagreement about criteria of legal validity as the central problem for theories of general jurisprudence, since the massive agreement that characterizes legal systems is of far greater import; 2, to the extent we care about understanding such disagreement, the two natural positivist explanations (there is no truth of the matter about some legal disputes, and thus claims to the contrary are either mistaken or disingenuous) are good enough. Positivism, then, remains superior to Dworkinian interpretivism on the basis of the standard criteria (simplicity, consilience, conservatism) of theory selection. (But go read it. It's very good. Shapiro's, too, if you haven't.) Now, I'm not convinced that interpretivism is the way to go (nor do I think Shapiro's suggested solution works, either). I do think, however, that disagreement about the criteria of legal validity cannot be satisfactorily explained away by an error theory of the sort Leiter supposes.
To some degree this may be just a matter of emphasis. I care about constitutionalism, first and foremost; I look to general jurisprudence only insofar as it relates to this, and think it a mistake to just identify the legal system with the state apparatus. Since I don't really worry about, e.g., tort law or contracts, the fact of massive agreement on these topics isn't so salient. What concerns me is fundamental disagreement over the criteria for constitutionally legitimate activity, about the powers of and limits on the state, and here I just don't think you can consider the topic "marginal." I suppose that one could respond with the claim that, even here, the vast majority (however measured) of issues really are settled (even if perhaps in a decidedly suboptimal way); that's the difference between the USA and, say, Somalia or Iraq. But I just don't think this is good enough, at least not in the United States (which may be uniquely problematic in this respect). At the very least, the class of officials on whose practices constitutional criteria of validity supervene include a number executive and legislative branch actors, besides the usual Article 3 suspects ... and if you don't see deep disagreement over basic questions of constitutional authority there, I don't know what to say.
So the reason we cannot, as Leiter urges, be content with simply saying that constitutional validity norms supervene on convergent constitutional practice and that where such convergence fails, the norms run out, is that this is just not good enough for even a naturalized project of constitutional theory. What I mean by this is straightforward, and ultimately owes much to Leiter's own writings: we want to understand how it is that societies structure political institutions and procedures so that the emergent states are both empowered and constrained in credible, public ways. And to do this, we need a concept of constitutional norms that will tell us exactly how these norms supervene on the practice, what degree of convergence is required for truth-talk of them to be apt (such that disagreement reflects epistemic rather than metaphysical failure), and perhaps even how they reflect or incorporate extra-constitutional norms.
To clarify: I am not saying that a naturalized constitutionalism requires us to deny constitutional indeterminacy; that would be lunacy (or a solid reductio). But it does require us to explain the supervenience relation in a way that fits into this project--or, more pessimistically, to show us the limits of the constitutionalist project by highlighting the precarious nature of any such norms. Theoretical disagreement has to be a central problem for any theory of constitutionalism because the project is about creating structures that will withstand it.
In some ways, this might be seen as a naturalist analog of Raz's authority argument. But rather than claiming that our intuitions about legality show that laws must be individuated such that they could, in theory, guide conduct, the claim is that understanding the (social-scientific!) project of constitutionalism requires a theory of the meaning of consitutional norms, and their relation to the practices on which they supervene, rich enough to help us see when and to what degree they can be institutionalized and sustained#. Even if many of the actors within the practice will--for predictable, Leiter-noted reasons--consistently overstate constitutional determinacy, we need to understand when and why there is or isn't a truth of the matter.
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