Fallon Jr-A Constructivist Coherence Theory of Constitutional Interpretation-2010

Prévia do material em texto

+ 2(,1 1/,1(
Citation: 100 Harv. L. Rev. 1189 1986-1987 
Content downloaded/printed from 
HeinOnline (http://heinonline.org)
Thu Sep 16 21:16:47 2010
-- Your use of this HeinOnline PDF indicates your acceptance
 of HeinOnline's Terms and Conditions of the license
 agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from 
 uncorrected OCR text.
-- To obtain permission to use this article beyond the scope
 of your HeinOnline license, please use:
 https://www.copyright.com/ccc/basicSearch.do? 
 &operation=go&searchType=0 
 &lastSearch=simple&all=on&titleOrStdNo=0017-811X
VOLUME 100 APRIL 1987 NUMBER 6
HARVARD LAW REVIEW_
A CONSTRUCTIVIST COHERENCE THEORY OF
CONSTITUTIONAL INTERPRETATION
Richard H. Fallon, Jr.*
Judges and constitutional lawyers generally acknowledge that a variety of
different kinds of argument have a legitimate place in constitutional inter-
pretation and debate. Among the kinds of argument commonly invoked are
arguments based on the plain or necessary meaning of the constitutional text;
arguments concerning the framers' intent; arguments of "constitutional the-
ory"; arguments based on judicial precedent; and arguments asserting moral
or policy values. In this Article, Professor Fallon address what he terms
"the commensurability problem": the important question of how the different
kinds of argument fit together or weigh against each other in a single,
presumptively coherent, constitutional calculus. Rejecting the solutions to
the commensurability problem that are latent in leading constitutional the-
ories, Professor Fallon seeks a solution in an interpretive account of the
implicit normative structure of our actual constitutional practice. His "con-
structivist coherence theory" holds that the various categories of constitu-
tional argument, though distinct, are sufficiently interconnected so that it
usually is possible for a constitutional interpreter to reach constructivist
coherence - a reflective equilibrium in which arguments of all five types,
following a process of reciprocal influence and occasional reassessment, point
toward or at least are not inconsistent with a single result. In those few
instances in which coherence cannot be achieved, Professor Fallon argues
that the various types of argument must be ranked hierarchically.
INTRODUCTION
C ONSTITUTIONAL law has a commensurability problem. The
problem arises from the variety of kinds of argument that now
are almost universally accepted as legitimate in constitutional debate
and interpretation. With only a few dissenters,1 most judges, lawyers,
and commentators recognize the relevance of at least five kinds of
constitutional argument: arguments from the plain, necessary, or his-
torical meaning of the constitutional text; arguments about the intent
of the framers; arguments of constitutional theory that reason from
the hypothesized purposes that best explain either particular consti-
Assistant Professor of Law, Harvard University.
See infra pp. 1209-23 (discussing "privileged factor" theories).
1189HeinOnline -- 100 Harv. L. Rev. 1189 1986-1987
HARVARD LAW REVIEW
tutional provisions or the constitutional text as a whole; arguments
based on judicial precedent; and value arguments that assert claims
about justice or social policy.
The commensurability problem is to show how arguments of all
of these various kinds fit together in a single, coherent constitutional
calculus. A slightly caricatured example illustrates the challenge. Be-
thel School District No. 403 v. Fraser2 presented the question of
whether a high school student's speech to a school assembly, which
consisted almost entirely of sexual innuendo, enjoyed constitutional
protection under the first and fourteenth amendments. 3 Without prob-
ing the hypothetical thought process too deeply, it is possible to imag-
ine a Supreme Court justice concluding, provisionally, that the strong-
est argument based directly on the constitutional text suggested that
the speech ought to be protected: when the first amendment, which
is applicable to the states through the fourteenth amendment, says
that "no law" shall abridge the freedom of speech, its literal proscrip-
tion should be taken as absolute. 4 Thus, if the textual language alone
were determinative, the student's speech would have received consti-
tutional protection.
Turning to arguments about the framers' intent, however, our
hypothetical justice might have found that the student's remarks were
not the sort of speech that the framers were concerned about protect-
ing. Although "we cannot say with certainty precisely what effect the
framers of the Bill of Rights intended the first amendment to have
with respect to freedom of expression," she might have concluded,
"we can say that at most they intended it to prohibit any system of
prior restraint and to modify the* common law of seditious libel."5 If
the framers' intent independently controlled the outcome, the justice
might therefore have reasoned, the student's speech could be punished
without offending the Constitution.
Plausible arguments of constitutional theory would support either
outcome. Suppose, however, that our imagined justice was most
impressed by an argument, based on the federal structure of American.
government, that called for deference to state authority in cases where
the state had not tried to thwart the communication of a particular
message. 6 This conclusion would have accorded with that reached
concerning the framers' intent: the speech should not be protected.
2 io6 S. Ct. 3159 (1986).
3 See id. at 3162-63.
4 See H. BLACK, A CONSTITUTIONAL FAITH 45 (1968).
5 Perry, Interpretivism, Freedom of Expression, and Equal Protection, 42 OHIO ST. L.J.
261, 287 (i98i) (footnote omitted). See generally L. LEVY, LEGACY OF SUPPRESSION (i960).
6 Cf. J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEw IO5-6 (1980)
(arguing that "strict review" of restrictions on free speech is not always appropriate when the
government is not trying to stifle communication of a particular message).
[Vol. Ioo:n189119o
HeinOnline -- 100 Harv. L. Rev. 1190 1986-1987
CONSTRUCTIVIST COHERENCE
But it would have diverged from the provisional conclusion derived
from the most natural reading of the constitutional language.
Arguments based on precedent might have added to the emerging
pattern of disparity. Supreme Court authority establishes that stu-
dents do not shed their first amendment rights at the schoolhouse
door. 7 Precedent also indicates that vulgar speech is protected in a
variety of settings.8 For these reasons a justice might have concluded
that the best arguments of precedent demonstrated that the speech
merited constitutional protection.
Moral and policy arguments would have remained for considera-
tion. If we suppose that the imagined justice determined that as a
policy matter, the states should be allowed not only to preserve de-
corum but also to teach decency in the public schools, 9 her overall
assessment of the various arguments would have reflected a sharp
division. Arguments in two categories - those involving the plain
meaning of the constitutional language and those based on precedent
- would have indicated that the speech deserved constitutional pro-
tection. But arguments of three other types - based on the framers'
intent, constitutional theory, and considerations of policy or justice -
would have pointed to the contrary conclusion. What, in these cir-
cumstances, ought the justice to have done? Should arguments in one
or more of the categories necessarily have taken precedence? Was
some sort of balancing required and, if so, what sort? Or was the
problem of the best arguments in different categories yielding opposite
results somehow false or illusory?
These questions, which define what I shall call the "commensur-
ability problem," are among the most important in constitutional
law.' 0 Indeed, it is impossible to reason or argue about the correct7 See Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969).
8 See, e.g., Cohen v. California, 403 U.S. 15 (197).
9 See Bethel School Dist. v. Fraser, io6 S.Ct. 3159, 3165 (1986) (finding that "it is a highly
appropriate function of public school education to prohibit the use of vulgar and offensive terms
in public discourse"); Board of Educ. v. Pico, 457 U.S. 853, 885, 889-91 (1982) (Burger, C.J.,
dissenting).
10 The usefulness of my characterization of this problem as one of "commensurability" does
not depend on the merits of contending positions in debates in the philosophy of science about
the possibility of there being "incommensurable" scientific "theories," "paradigms," "frameworks,"
or "discourses." See, e.g., R. BERNSTEIN, BEYOND OBJECTIVISM AND RELATIVISM 51-oS
(1983); T. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (2d ed. 1970); R. RORTY,
CONSEQUENCES OF PRAGMATISM 5-17 (982). In the context of that debate, incommensurability
is a relation between two or more theories or discourses; the relation obtains when two theories
or discourses cannot be translated into each other without loss of meaning and disputes cannot
be resolved by reference to shared criteria. See T. KUHN, supra, at 198-204; R. RORTY,
PHILOSOPHY AND THE MIRROR OF NATURE 322-33 (1979). I make limited use of a related
incommensurability of particular conceptions of what certain kinds of constitutional argument
ought to be about. See infra notes 226-27 and accompanying text. Outside of this narrow
context, however, my use of the term "commensurability" generally follows ordinary rather than
1987l 1191
HeinOnline -- 100 Harv. L. Rev. 1191 1986-1987
HARVARD LAW REVIEW
decision in hard cases - cases made hard by the actual or apparent
tendency of different kinds of arguments to point to divergent results
- without a theory of how different kinds of constitutional argument
appropriately contribute to a single decision. Yet, astonishingly, the
commensurability problem has received little explicit attention either
in judicial opinions or in the scholarly constitutional literature.
This Article on the commensurability problem has three related
objectives. The first is to illuminate the nature of the problem as it
currently confronts lawyers and judges. In order to do so, I shall
further develop the typology of constitutional argument to which I
have already appealed. I shall also examine the solutions to the
commensurability problem that are implicit in several well known
constitutional theories and in an intuitively plausible rival.
My second objective is to expound and commend a particular
approach to the commensurability problem in particular and to issues
of constitutional theory in general. A familiar distinction sharply
differentiates two kinds of legal theories: descriptive and normative.
Rejecting that dichotomy, I shall argue in favor of what Professor
Ronald Dworkin has recently termed an "interpretive" approach that
has both a descriptive and a normative aspect."
My third and final objective is to propose an interpretive consti-
tutional theory to explain how the various kinds of constitutional
argument combine or weigh against each other within the implicit
norms of our constitutional practice. 12 The "constructivist coherence
any specialized or technical usage. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY
456 (198i) (defining "commensurability" as "the quality or state of being commensurable" and
"commensurable" as "having a common measure").
1 See R. DWORKIN, LAW'S EMPIRE 4-14, 45-86 (1986). Roughly speaking, an "interpretive"
approach to constitutional theory embodies four basic assumptions. First, constitutional inter-
pretation is a "practice" with an internal normative structure. See infra pp. 1232-37. Second,
to participate in the practice requires conformity to the practice's implicit rules or norms. See
infra notes 211-13 and accompanying text. Third, "[viery often, perhaps even typically, the
raw behavioral data of the practice - what people do in what circumstances - will underde-
termine" any purely descriptive or positive theory of the practice's implicit norms or the values
or purposes that give the practice its nature. R. DWORKIN, supra, at 52. The data, in other
words, will be consistent with "different and competing" accounts of the practice's rules, nature,
or purposes. Id. Fourth, "[i]f the raw data do not discriminate between these competing
interpretations, each interpreter's choice must reflect his view of which interpretation proposes
the most value for the practice - which one shows it in the better light, all things considered."
Id. at 52-53. For a fuller account, and for an explanation of where I depart from Dworkin as
well as where I follow him, see pages 1231-37 below.
12 Although my claims in this Article about the practice of constitutional interpretation will
often be framed in very general terms, several qualifications are necessary. As in most writing
about constitutional theory, the bulk of my arguments and assertions takes as its implicit
paradigm decisionmaking, advocacy, and argumentation in the Supreme Court and in lower
court cases in which there is no Supreme Court precedent closely on point. Although the result
may be a theory that is excessively Supreme Court focused, this approach has advantages. A
theory that takes the Supreme Court as its paradigmatic decisionmaker is able to address directly
[Vol. lOO:11891192
HeinOnline -- 100 Harv. L. Rev. 1192 1986-1987
CONSTRUCTIVIST COHERENCE
theory" that I offer has two main aspects. 13 The first asserts that the
implicit norms of our constitutional practice call for a constitutional
interpreter to assess and'reassess the arguments in the various cate-
gories in an effort to understand each of the relevant factors as pre-
scribing the same result. The desirability and plausibility of this
strategy, and its implied claim that coherence of this kind is most
often attainable, may seem counterintuitive. But within our legal
culture, it is the rare judicial opinion, the anomalous brief, the unusual
scholarly analysis that describes the relevant kinds of arguments as
pointing in different directions. Typically, legal arguments - includ-
ing those of judicial and even Supreme Court opinions - find the
best arguments in all of the categories to support, or at least not to
be inconsistent with, a single result. 14 Nor, I shall argue, does this
familiar alignment of arguments reflect sheer intellectual dishonesty
or rhetorical or argumentative excess. The various kinds of consti-
tutional argument are substantially interrelated and interdependent.
Reciprocal influences among them make it possible most of the time
to achieve constructivist coherence. The role of value arguments is
especially important in this respect. I shall be particularly concerned
with showing how value arguments infuse and inform the arguments
that are advanced within other categories.
The second element of my theory comes into play only when the
effort to achieve coherence does not succeed. In such cases, the
categories of argument are assigned a hierarchical order in which the
highest ranked factor clearly requiring an outcome prevails over lower
ranked factors. In particular, I shall argue, the implicit norms of our
the central question of how our system assumes that constitutional issues are and ought to be
settled by the one authority clearly entitled to decide every case on the basis of its own
understanding of highest constitutional principle. Similarly with respect to legal advocacy, a
theory developed around Supreme Court argumentation answers the revealing question of how
our practice assumes that lawyers ought to argue constitutional issues when questions of highest
constitutional principle are most clearly open for decision.
If the Supreme Court focus is distorting, it may be particularly so with respect to the role
played in our constitutional practice by the law school professoriat. Undoubtedly, legal scholarshave an important part in our constitutional practice and, more than judges or practicing
lawyers, they may assume a relatively distinctive and detached role. Even here, however, the
vast bulk of legal scholarship tends to accept and to argue within the implicit and explicit
standards established by Supreme Court practice.
13 For a discussion of the significance of the name "constructivist coherence theory," see note
230 below.
14 This is not to say that legal arguments always, or even typically, refer explicitly to all of
the factors that sometimes are recognized as relevant. In some cases, one kind of argument is
emphasized, while others are omitted entirely. Even when this occurs, however, lawyers, judges,
and even Supreme Court justices rarely acknowledge that some relevant factor calls for a result
different from that which is being reached. M'or is it common for dissenting opinions to argue
that the majority has erred by ignoring a relevant factor. Even when factors of general relevance
are not referred to explicitly, it thus seems to be assumed that the conclusions to which they
would point would at least be not inconsistent with the result reached.
19s71 1193
HeinOnline -- 100 Harv. L. Rev. 1193 1986-1987
HARVARD LAW REVIEW
constitutional practice accord the foremost authority to arguments
from text, followed, in descending order, by arguments concerning the
framers' intent, constitutional theory, precedent, and moral and policy
values. But a caution is in order. For reasons to be explored later,
the highest ranked categories are those in which any particular ar-
gument, in hard cases, is least likely to prove uniquely persuasive or
determinate. Arguments from text and from the framers' intent there-
fore possess less independent influence than their hierarchical status
suggests. By contrast, although value arguments occupy the lowest
rung in the hierarchy, they are likely to exert a very powerful influence
on conclusions within other categories in a successful effort to reach
coherence.
A brief outline of the structure of the argument may prove helpful.
Part I offers a more complete account of the five types of argument
that generally predominate in constitutional debate. Part I then tests
the adequacy of several leading constitutional theories and of a plau-
sible rival. Part III explains and defends the interpretive approach
from which I devise my answer to the commensurability problem.
After an introduction to my proposed constructivist coherence theory
in Part IV, Part V provides a detailed explanation of how the theory
works with respect to each of the kinds of constitutional argument.
Finally, Part VI demonstrates my theory's capacity to explain the
debate within and surrounding some controversial cases in constitu-
tional law.
I. A TYPOLOGY OF CONSTITUTIONAL ARGUMENT
The arguments offered by constitutional lawyers, and accepted as
providing grounds that are at least relevant to constitutional decision-
making, are highly diverse. But judicial opinions, briefs, and many
scholarly articles tend to rely on five types of authority and argument,
several of which are defined with sufficient looseness so as not to
exclude arguments that others might classify differently.' 5 The prin-
cipal purpose of this Part is to develop a typology of constitutional
argument and to establish that each category has a familiar and
accepted place in our constitutional practice. In addition, some sig-
nificant disputes about the force of arguments within the categories
are pointed out. Despite flagging the issue at several points, I do not
attempt in this Part to give a fully developed account of the degree
of autonomy of, or interdependence among, the five categories of
argument that I identify. The question of autonomy later becomes
Is For other typologies of constitutional argument, see P. BOBBITT, CONSTITUTIONAL FATE
I-9ig (i982), and Moore, A Natural Law Theory of Interpretation, 58 S. CAL. L. REV. 279
(1985).
1194 [Vol. ioo:ii89
HeinOnline -- 100 Harv. L. Rev. 1194 1986-1987
CONSTRUCTIVIST COHERENCE
crucial, both to my own theory and to my criticisms of those of others.
But the issue can fairly be postponed. Although the categories do
sometimes blur or otherwise depend on one another, it would be a
plain if familiar error to suppose that "unless a distinction can be
made rigorous and precise it isn't really a distinction at all."' 16
A. Arguments from Text
Arguments from text play a universally accepted role in constitu-
tional debate. 17 If there is any surprise, it is how seldom the text is
relied on directly, in comparison with arguments based on historical
intent, precedent, and social policy or moral principle.' 8 But perhaps
this situation only emphasizes the text's importance. The text, and
its plain language, are taken for granted. Where the text speaks
clearly and unambiguously - for example, when it says that the
President must be at least thirty-five years old - its plain meaning is
dispositive. 19 Where the text is ambiguous or vague, other sources
are consulted as guides to textual meaning.
If this account is accurate - as I believe that generally it is
then it will be helpful to recognize an important distinction between
arguments about the text and arguments from the text. In one sense,
all constitutional arguments - including, for example, arguments
concerning precedent and the intent of the framers - are about the
text and what it should be held to mean. It is, after all, a constitution
we are interpreting. From arguments that are merely about the mean-
ing of the text, we can distinguish arguments from the text: arguments
that purport to resolve a question by direct appeal to the Constitution's
plain language. These are arguments that the plain language of the
Constitution either requires or forbids a certain conclusion, irrespec-
tive of what might be said about that conclusion on other grounds. 20
16 Searle, The World Turned Upside Down, N.Y. REv. BOOKS, Oct. 27, 1983, at 74, 78.
17 See, e.g., Richardson v. Ramirez, 418 U.S. 24, 54-55 (1974); United States v. Butler, 297
U.S. 1, 62-64 (1936); Cohens v. Virginia, i9 U.S. (6 Wheat.) 264, 381 (1821) (holding that
"authoritative language of the American people" must be respected); P. BOBBITT, supra note 15,
at 24-28; Moore, supra note i5, at 288-338; Perry, The Authority of Text, Tradition and Reason:
A Theory of Constitutional "Interpretation," 58 S. CAL. L. REV. 551, 554-55 (985); Schauer,
An Essay on Constitutional Language, 29 UCLA L. REv. 797 (1979).
18 See, e.g., Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L. REv.
204, 234 (198o) (arguing that explicit reliance on the text has played a small role in comparison
with elaboration of judicial precedents); Grey, Do We Have an Unwritten Constitution?, 27
STAN. L. REv. 703, 707-08 (1975) ("In the important cases, reference to and analysis of the
constitutional text plays a minor role."); Jones, The Brooding Omnipresence of Constitutional
Law, 4 VT. L. REv. 1, 28 (1979) (noting that as the text "gets older and interpretive precedents
accumulate, the focus of professional and judicial attention tends to shift from the text and
history to judicial precedents").
19 But see Peller, The Metaphysics of American Law, 73 CALIF. L. REv. 1151, 1174 (x985).
20 An example may clarify the distinction. The first amendment provides that "Congress
1087] 1195
HeinOnline -- 100 Harv. L. Rev. 1195 1986-1987
HARVARD LAW REVIEW
One reason we see relatively few arguments from the text is that
the language of the Constitution, considered as a factor independent
from the other kinds of argument familiar in constitutional debate,
resolves so few hard questions. 21 Nonetheless, arguments from text
can fulfill three functions. Occasionally, an argument from text will
require a unique conclusion - for example, that the President must
be at least thirty-five years old.2 2 More commonly, arguments from
the text achieve the somewhat weaker but nontrivial resultof exclud-
ing one or more positions that might be argued for on nontextual
grounds. 23 Thus, although the text of the eighth amendment may not
tell us precisely what "cruel and unusual punishments" are, 24 the
language does require that the amendment's prohibition apply only to
actions that can plausibly be described as "punishments." 2 5 Finally,
among the meanings that are not excluded by arguments from text, a
narrowly text-focused reading will sometimes yield the conclusion that
some are more plausible than others.
In talking about "arguments from text," the "meaning" of the text,
and even its "plain meaning," I do not deny that any attribution of
shall make no law... abridging the freedom of speech." U.S. CONST. amend. I. In deciding
first amendment cases, Justice Hugo Black often emphasized "no law" and argued that this
language established the unconstitutionality of any statute punishing speech. J. ELY, supra note
6, at 1O5; see H. BLACK, supra note 4, at 45. His was an argument from, as well as about,
the text. Justice Harlan, on the other hand, typically espoused a methodology in which he
balanced competing arguments to determine what rights existed. Rejecting Justice Black's
argument from text as unpersuasive, Justice Harlan found that the plain language of the text
left open a range of possible meanings, with the choice among them appropriately determined
by other factors. See, e.g., Konigsberg v. State Bar, 366 U.S. 36, 49 (g61) (rejecting "the view
that freedom of speech and association, as protected by the First and Fourteenth Amendments,
are 'absolutes' . . . in the sense that the scope of that protection must be gathered solely from
a literal reading of the First Amendment" (citation omitted)).
21 The first amendment again provides an apt example. Even if read in wholly literal terms,
the language does not forbid abridging all speech, but only "the freedom of speech." See A.
MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 21 (ig6o).
It is by no means obvious what "the freedom of speech" encompasses. Cf. Konigsberg, 366 U.S.
at 49 & n.io (noting that an "absolutist" view that the first amendment protects all speech
"cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity,
perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and
the like").
22 But see Peller, supra note ig, at 1174.
23 See Schauer, supra note 17, at 802-12, 824-31. Although I cannot argue the point here,
I acknowledge that certain post-structuralist, deconstructionist writers would regard as conten-
tious the claim that the range of possible meanings of any text is significantly constrained. See,
e.g., Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997, ioo6-
07 (1985); Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1, 9-25
(1984).
24 U.S. CONST. amend. VIII.
2S Some incidents cannot be so described. Cf. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979)
(relying in part on an argument from the text that the government's infliction of harm could
not be "punishment" in the constitutional sense unless it occurred subsequent to criminal con-
viction); Ingraham v. Wright, 430 U.S. 651, 664 (1977) (same).
1196 [Vol. 1oo:1189
HeinOnline -- 100 Harv. L. Rev. 1196 1986-1987
CONSTR UCTIVIST COHERENCE
meaning requires a reader as well as a text, or that readers inevitably
will be infused with, and thus have their interpretations influenced,
if not determined, by assumptions, conventions, and morality. 26 I
also assume that the reader, even in assessing arguments about "plain
meaning," will understand that she is reading a constitutional text,
which implies that the language is situated in an interpretive tradition
and must be read with at least a tacit awareness of the range of
extratextual concerns that constitutional interpretation conventionally
takes into account. 27 Nevertheless, the labeling of "arguments from
text" as a distinct category of argument presupposes that it is possible
to read the Constitution with more or less of a narrowly textual
focus. 2 8
One further complication needs discussion. Beneath the general
agreement that arguments from text are legitimate and important in
the practice of cons itutional interpretation lies a significant distinction
and source of disagreement. There are at least two possible concep-
tions of the nature of arguments from text. One is "originalist": 29 to
determine the meaning of the text, we must inquire into what it meant
at the time of its ratification. 30 From another view, however, it is the
essence of arguments from text that they appeal directly to contem-
26 There is a raging debate about the precise characterizations of the elements that lead
particular interpreters to reach particular conclusions at particular times. Among the leading
contributions to the philosophical debate are H. GADAMER, TRUTH AND METHOD (1982); E.
HIRSCH, VALIDITY IN INTERPRETATION (1967); and S. FISH, Is THERE A TEXT IN THIS CLASS?
THE AUTHORITY OF INTERPRETIVE COMMUNITIES (i98o). For an intellectually accessible in-
troduction to this literature, see Hoy, Interpreting the Constitution: Hermeneutical and Post-
structuralist Perspectives, 58 S. CAL. L. REV. 135 (1985). Important and controversial contri-
butions to the legal literature include R. DWORKIN, cited in note ii above; R. DWORIN, A
MATTER OF PRINCIPLE 146-76 (1985); Brest, Interpretation and Interest, 34 STAN. L. REV.
765, 771 (1982); Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 97
HARV. L. REV. 4 (1983); Fish, Fish v. Fiss, 36 STAN. L. REV. 1325 (1984); Fish, Working on
the Chain Gang: Interpretation in Law and Literature, 6o TEX. L. REV. 551 (1982) [hereinafter
Chain Gang]; Fiss, Comment, Conventionalism, 58 S. CAL. L. REv. 177 (1985); Fiss, Objectivity
and Interpretation, 34 STAN. L. REV. 739 (1982); Levinson, Law as Literature, 6o TEX. L.
REV. 373 (1982); and White, Law as Language: Reading Law and Reading Literature, 60 TEX.
L. REv. 415 (1982).
27 See Brest, supra note 18, at 206; Fish, Fiss v. Fish, supra note 26, at x335-36.
28 See Moore, supra note 15, at 320-2I.
29 For a fuller discussion of "originalism" as a fully developed constitutional theory, see pages
1211-14 below.
30 See, e.g., South Carolina v. United States, 199 U.S. 437, 448 (1905) ("The Constitution
is a written instrument. As such, its meaning does not alter. That which it meant when adopted
it means now."); T. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST
UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 55 (Da Capo Press
ed. 1972) (ist ed. 1868) ("The meaning of the Constitution is fixed when it is adopted, and it is
not different at any subsequent time when a court has occasion to pass upon it."); Brest, supra
note IS, at 208-09; Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REv. 353, 373-77
(i98i); Munzer & Nickel, Does the Constitution Mean What it Has Always Meant?, 77 COLUM.
L. REV. 1029, 1043-44 (1977).
1987] 1197
HeinOnline -- 100 Harv. L. Rev. 1197 1986-1987
HARVARD LAW REVIEW
porary meanings. 3 1 In developing a typology of constitutional argu-
ment, it is enough to recognize that both types of arguments from the
text can and do get made. Consideration of how these competing
claims get resolved must await later parts of this Article.
B. Arguments About the Framers' Intent
Searches for the meaning of a constitutional provision frequently
involve inquiries into the intent of the framers and ratifiers. 3 2 Con-
troversy abounds concerning the weight that intent ought to have.
Although "interpretivists" view the intent of the framers as control-
ling,33 most other constitutional lawyers regard intent as entitled to
only some, not very clearly specified, weight. 34 Moreover, several
important scholars have recently argued that the intent of the framers
generally has no justifiable place in constitutional argument. 35 But
thisform of nonintentionalism is more plausibly viewed as a prescrip-
tive proposal than as an account of existing practice. It is relatively
uncontroversial that the Supreme Court regards the framers' intent as
an important factor in constitutional adjudication. 36
Notoriously, searches for intent divide into several types. 3 7 One
helpful division distinguishes between "specific" or "concrete" and
31 See P. BOBBITT, supra note I, at 25-26; Perry, supra note 17, at 564-65.
32 See, e.g., Ford v. Wainwright, io6 S. Ct. 2595, 2600-02 (1986); Marsh v. Chambers, 463
U.S. 783, 788 (x983); P. BOBBITT, supra note 15, at 9-24; Monaghan, supra note 30, at 375-
79.
33 See infra pp. 1209-17.
34 See, e.g., Brest, supra note 18, at 224, 229-34; Perry, supra note 17, at 569-70.
35 See R. DwoRKIN, supra note ii, at 359-81; Moore, supra note I5, at 338-58; Simon,
The Authority of the Framers of the Constitution: Can Originalist Interpretation Be Justified?,
73 CALIF. L. REV. 1482 (1985); see also Sandalow, Constitutional Interpretation, 79 MICH. L.
REv. 1033, io62-64 (i981) (arguing that although there has been little incentive to develop an
interpretive framework justifying departures from the framers' intentions, it is mistaken to think
that the framers' intentions and expectations furnish even a "core" of constitutional meaning
that must be respected).
36 See cases cited supra note 32. To deny this assertion, it would be necessary to adopt a
thoroughly "realist" attitude toward arguments from the framers' intent. On this interpretation,
even though the Supreme Court frequently talks about the intent of the framers, the Court
manipulates its findings, or adjusts the level of abstraction at which the framers' intent is
specified, see infra text accompanying notes 37-41, in order to rationalize results reached on
other grounds. I certainly have no quarrel with the common observation that the Supreme
Court frequently relies on poorly executed historical scholarship to identify the intent of the
framers. See Kelly, Clio and the Court: An Illicit Love Affair, x965 SuP. CT. REv. ixg. Nor
would I question that, when the Court does so, result-orientation frequently provides the most
plausible explanation. But the realist interpretation of the role of the framers' intent is ultimately
unpersuasive, because it mischaracterizes the phenomenology of constitutional argument and
interpretation: it omits the sense of the judge or constitutional lawyer that, as she searches the
legislative history, it does and ought to matter what she finds there.
37 See, e.g., Brest, supra note 12, at 223; Speech by Judge Robert H. Bork (Nov. x8, 1985),
reprinted in THE GREAT DEBATE: INTERPRETING OUR WRITTEN CONSTITUTION 43, 47-48
1198 [Vol. 1OO:1I8 9
HeinOnline -- 100 Harv. L. Rev. 1198 1986-1987
CONSTRUCTIVIST COHERENCE
"general" or "abstract" intent. Specific intent involves the relatively
precise intent of the framers to control the outcomes of particular
types of cases. For example, legal historians generally agree that the
authors of the first amendment had the clear and self-conscious ob-
jective of prohibiting prior restraints on publication. 38 This, in other
words, was a specific intent of the framers. Abstract intent refers to
aims that are defined at a higher level of generality, sometimes en-
tailing consequences that the drafters did not specifically consider and
that they might even have disapproved. An example comes from
equal protection jurisprudence. The authors of the fourteenth amend-
ment apparently did not specifically intend to abolish segregation in
the public schools. 39 Yet they did intend generally to establish a
regime in which whites and blacks received equal protection of the
laws40 - an aspiration that can be conceived, abstractly, as reaching
far more broadly than the framers themselves specifically had in-
tended. Despite the absence of any relevant specific intent, this ab-
stract intent is consistent with and supports the conclusion that the
fourteenth amendment forbids government segregation based on
race. 4 1 It clearly is an interesting and important question how the
choice is and ought to be made between the types of intent - espe-
cially between specific and abstract intent - that sometimes are re-
sorted to in constitutional argument. I shall return to this issue in
Parts IV and V.
(Federalist Society 1986). The most prolific expositor of distinctions has been Professor Dworkin.
See, e.g., R. DWORKIN, TAKING RIGHTS SERIOUSLY 134-37 (1977) (distinguishing the "concepts"
that the framers incorporated into the Constitution from their "conception" of what, in particular,
those concepts require); R. DWORKIN, A MATTER OF PRINCIPLE, supra note 26, at 44 (distin-
guishing the framers' interpretive hopes from their interpretive expectations).
38 See Perry, supra note 3, at 287.
39 See R. BERGER, GOVERNMENT BY JUDICIARY 117-33 (1977); Bickel, The Original Under-
standing and the Segregation Decision, 69 HARv. L. REv. 1, 58-59 (1955). Even Berger's critics
generally have not disputed this point. Perry, supra note 3, at 292 n.131; see Soifer, Protecting
Civil Rights: A Critique of Raoul Berger's History, 54 N.Y.U. L. REv. 651, 705 (I979).
40 See generally Bickel, supra note 39.
41 See Brown v. Board of Educ., 347 U.S. 483 (i954). The situation would of course be
different and more complicated if the framers had specifically and explicitly intended that the
equal protection clause not under any circumstances be construed to require desegregated schools.
But the problem of "negative intent" was not presented by Brown. See infra text accompanying
notes 390-94.
Paralleling the distinction between specific and general intent is Professor Dworkin's distinc-
tion between "concepts" and "conceptions." See R. DWORKIN, TAKING RIGHTS SERIOUSLY,
supra note 37, at 134-37. Within this terminology, the authors of the fourteenth amendment
intended to constitutionalize a requirement of equal legal treatment. This concept, however,
admits of many conceptions or interpretations. While the framers' own conception may have
been a narrow one - possibly permitting, for example, segregation in the schools - the concept
of equal treatment also may have more exacting conceptions. Dworkin argues that it is the
concept of equal treatment, not the narrow conception of the framers, that the fourteenth
amendment properly expresses.
19871 1I99
HeinOnline -- 100 Harv. L. Rev. 1199 1986-1987
HARVARD LAW REVIEW
C. Arguments of Constitutional Theory
A third familiar kind of argument involves the purposes, described
in a general, functional, or theoretical sense, of the Constitution as a
whole or of its provisions individually. Arguments of this kind push
beyond what could plausibly be considered the plain meaning of
constitutional language. Instead, they claim to understand the Con-
stitution as a whole, or a particular provision of it, by providing an
account of the values, purposes, or political theory in light of which
the Constitution or certain elements of its language and structure are
most intelligible. Arguments asserting that particular values or prin-
ciples enjoy constitutional status because of their role in a theory of
this kind I shall refer to as arguments of constitutional theory.
This category is, admittedly, rather loosely defined. A few ex-
amples may help to clarify its contours. At one end of the theoretical
spectrum stand arguments based on comprehensive constitutional the-
ories, such as that propounded by Dean John Hart Ely.42 According
to Ely's theory, the Constitution, read as a whole, creates a predom-
inantly democratic and majoritarian structure of government; the
rights with which it is, and must be, most concerned are those relating
to failures of the democratic process. 43 From this democratic and
process-based account, Ely derives the principle that the courts gen-
erally should read open-ended provisions of the Constitution to inval-
idate legislative and executive action where - and, withoutclear
textual warrant, only where - a rights-protective interpretation is
necessary either to provide fair and equal access to the political process
or to correct for what he regards as process failures. 44 An argument
based on Ely's theory would be a clear example of an argument of
constitutional theory.
At the middle level of theoretical argumentation would be argu-
ments about, for example, the reasonable implications of our federal
structure or many of the arguments that Professor Charles Black has
characterized as arguments from structure and relationship. 45 Such
arguments support constitutional conclusions on the basis of their fit
with, or even their entailment by, the necessary presuppositions of
the governmental structure that the Constitution creates. A famous
example of structural argument comes from Chief Justice Marshall's
opinion in McCulloch v. Maryland,46 forbidding state taxation of
federal entities on the ground that the power to tax is the power to
destroy. 47 With the state and national governments structured as they
42 See J. ELY, supra note 6. For a fuller discussion of Ely's theory, see pages 12 17-23 below.
43 See J. ELY, supra note 6, at 4-9, 73-104.
44 See id. at 102-03.
45 See C. BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (I969).
46 17 U.S. (4 Wheat.) 316 (i8i9).
47 See id. at 427.
[Vol. 1oo:11891200
HeinOnline -- 100 Harv. L. Rev. 1200 1986-1987
CONSTRUCTIVIST COHERENCE
were under the Constitution, it would make no sense, Marshall rea-
soned, for the states to be able to frustrate constitutionally legitimate
federal policies. 48 Arguments of this kind can be viewed as ones of
constitutional theory because, although they do not rely on either the
precise linguistic meaning of particular constitutional provisions or on
the historically identifiable intent of the framers, they are text focused.
Finally, closer to the particularistic end of the theoretical spectrum
lie such assertions as the commonplace that it is the purpose of the
first amendment to protect a marketplace of ideas. 49 It would be
possible, of course, to cast this claim as an account of the framers'
general intent. But the argument that courts should protect the mar-
ketplace of ideas might also issue, entirely independently of any in-
quiry into the attitudes of the framers, from a view about the values,
assumptions, or political theory in light of which the language of the
first amendment makes the most sense. 5 0
Arguments of this kind are closely analogous to, if not identical
with, what have sometimes been characterized as "clause-bound" in-
terpretivist arguments.3 1 Clause-bound interpretivist arguments pur-
port to "derive" a value from some relatively clear and secure foun-
dation in a particular provision of the constitutional text; the
arguments are classified as interpretivist because the aspiration is to
draw "inferences" purely from textual sources.5 2 But the terminology
of "derivation" and "inference" is misleading. At least after we have
left the domain of arguments from text, it is always necessary to
formulate a theory about a constitutional provision, or ascribe a pur-
pose to it, before any "derivation" of particular conclusions can occur.
Moreover, because the text commonly is so spare, it frequently will
fail to determine any one theory but will, instead, be consistent with
several. Thus the first amendment appears to some to create a general
marketplace of ideas. But others ascribe to the free speech guarantee
48 Chief Justice Marshall also relied importantly on structural arguments in his even more
famous opinion in Marbury v. Madison, 5 U.S. (i Cranch) 137 (1803), in which he reasoned,
for example, that a written constitution would be meaningless in restraining legislative power,
as it was clearly intended to do, if the courts were incompetent to engage in judicial review.
See id. at 178.
49 See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969); Abrams v. United
States, 250 U.S. 616, 630 (i919) (Holmes, J., dissenting).
so It is for this reason that John Stuart Mill, who authored a celebrated essay on the values
and purposes served by preserving wide liberties of thought and discussion, is frequently
classified as a first amendment theorist. See, e.g., Wellington, On Freedom of Expression, 88
YALE L.J. 1105 (1979). Although Mill's ON LIBERTY (D. Spitz ed. 1975) made no reference to
the first amendment or its framers, his arguments establish a framework of values and purposes
that can usefully be referred to in defining the "freedom of speech" that the first amendment
should be construed to protect.
51 See J. ELY, supra note 6, at 11-41.
52 See, e.g., Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J.
1, 3-7 (971).
1987] 1201
HeinOnline -- 100 Harv. L. Rev. 1201 1986-1987
HARVARD LAW REVIEW
the purpose, for the most part, of protecting the value only of indi-
vidual - as opposed, for example, to corporate - self-expression. 5 3
Still others view the object as limited to preserving the freedom of
political speech essential to a democracy.5 4
This disparity of views should not be surprising. A constitutional
theory must seek not only to explain constitutional guarantees and
prohibitions but also to do so in a normatively attractive way. And
where more than one theory plausibly accounts for the text having
been written as it was, an assessment along a normative dimension,
whether undertaken consciously or unconsciously, becomes inevitable
and desirable. The upshot is that the "derivation" of constitutional
values can seldom if ever be a value-neutral enterprise.5 5 That is
why what others sometimes call clause-bound interpretivist arguments
are more accurately classified as arguments of constitutional theory.
D. Arguments from Precedent
Constitutional disputes frequently abound with analysis of the
meanings of judicial precedents.5 6 Indeed, constitutional arguments
sometimes address themselves almost entirely to the meanings of pre-
viously decided cases:5 7 read one way, precedent indicates one result
in dispute, whereas if read another, it leads to a different conclusion.
More commonly, however, prior judicial decisions form a patchwork
into which a current problem must be fitted through a combination
of analytical, analogical, and theoretical reasoning.5 8 The problem
then is one of developing a theoretical account of what the decided
cases stand for.
As Professor Shapiro has recently observed, our legal system sup-
ports "two coexisting doctrines of precedent: a narrow one for getting
s3 See Pacific Gas & Elec. Co. v. Public Util. Comm'n, io6 S. Ct. 903, 917 (1986) (Rehnquist,
J., dissenting); see also Baker, Commercial Speech: A Problem in the Theory of Freedom, 62
IOWA L. REv. 1, 4 (1976) (arguing that the first amendment protects only speech connected with
individual liberty and self-realization).
54 See Bork, supra note 52, at 26-35.
55 I am, in short, deeply skeptical of claims that an interpretivist methodology makes it
possible to identify with precision "a value judgment the framers constitutionalized at some
point in the past." M. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS IO-
ii (x982) (explaining, although not endorsing, the aspirations of interpretivism).
56 For interesting and useful accounts of the role of precedent in constitutional adjudication,
see, for example, Michelman, Constancy to an Ideal Object, 56 N.Y.U. L. REV. 406 (I981);
Monaghan, supra note 30, at 387-91; Monaghan, Taking Supreme Court Opinions Seriously, 39
MD. L. REv. 1 (1979) [hereinafter Court Opinions].
57 See Jones, supra note 18, at 28; see, e.g., Skipper v. South Carolina, io6 S. Ct. 1669,
1670-73 (1986) (interpreting two earlier decisions to elucidate the standard of admissibility of
mitigating evidence in a criminal case); Michigan v. Jackson, io6 S. Ct. 1404, 1407-1I (1986)
(discussing earlier cases on the admissibility of confessions in criminal cases).
58 See generally E. LEVI, AN INTRODUCTIONTO LEGAL REASONING (1949).
1202 [Vol. ioo:ii8 9
HeinOnline -- 100 Harv. L. Rev. 1202 1986-1987
CONSTRUCTIVIST COHERENCE
rid of troublesome decisions, and a broad one for taking advantage
of helpful decisions."5 9 In this context, the construction of theories of
decided cases will inevitably be influenced by the beliefs and values
of the individual constitutional interpreter. To cite a suggestive ex-
ample, in Pennhurst State School & Hospital v. Halderman,60 Justice
Stevens, in his dissenting opinion, accused the majority of "repu-
diat[ing] at least 28 cases."'6 1 Answering for the majority, Justice
Powell asserted that nearly all of the cases that were relied on by the
dissenting Justices could be distinguished and that many of the deci-
sions were "simply miscited." 62 Bad faith need not have obtained on
either side. 63
An adequate theory of the meaning of legal precedents, like any
legal theory that seeks to guide future conduct, must satisfy two
criteria. First, it should achieve descriptive accuracy by fitting the
data that the theory attempts to explain. Second, a theory of prece-
dent should depict the data in the normatively most attractive light
that the implicit conventions of our constitutional practice will permit.
The criteria of fit and attractiveness are both theory dependent and
contestable. 64 With respect to fit, some judges and lawyers simply
will "see" or "read" the cases differently. Moreover, even if this prob-
lem could be passed over, different constitutional interpreters may
disagree as to what constitute permissible bases for distinction under
the loose doctrine of precedent and how much past decisions fairly
could be claimed to establish under a broader approach. This is not
to suggest that purposive theory construction cannot go too far. Some-
times "a precedent cannot be distinguished away under the narrowest
approach consistent with fair argument, and ... there are other times
when no controlling or even persuasive precedent can be found no
matter how broadly the existing decisional corpus is viewed."6 5
59 Shapiro, In Defense of Judicial Candor, ioo HARV. L. REv. 731, 734 (987). Shapiro
attributes this view, which he describes as being "close" to his own, to K. LLEWELLYN, THE
BRAMBLE BUSH 74-75 (1951).
60 465 U.S. 89 (1984).
61 Id. at 165 (Stevens, J., dissenting). Joining Justice Stevens' opinion were Justices Brennan,
Marshall, and Blackmun.
62 Id. at o9.
63 For an insightful assessment of the competing arguments, in Pennhurst, see Shapiro, The
Supreme Court: 1984 Term - Comment: Wrong Turns: The Eleventh Amendment and the
Pennhurst Case, 98 HARv. L. REV. 6x (1984).
64 Modern philosophy of science holds that none of our beliefs about the world is independent
of theory. See, e.g., H. PUTNAM, REASON, TRUTH AND HISTORY 135 (198); IV. QUINE, Two
Dogmas of Empiricism, in FROM A LOGICAL POINT OF VIEW 20-46 (2d ed. 198o). The
implication is that the data to be explained along the dimension of "fit" are not independent of
theory, because theory is needed to establish what will count as data and what will not.
65 Shapiro, supra note 59, at 734. Thus, in Pennhurst, either Justice Powell or Justice
Stevens may have been mistaken in his judgment about what readings the narrower and broader
doctrines of precedent would permit.
1987] 1203
HeinOnline -- 100 Harv. L. Rev. 1203 1986-1987
HARVARD LAW REVIEW
Nevertheless, a significant latitude exists for good faith argument and
for normative choice based on moral and political attractiveness. And
the moral and political attractiveness of a reading of the precedents
depends relatively straightforwardly on the political values and as-
sumptions of the interpreter.66
E. Value Arguments
Sometimes openly, sometimes guardedly, judges and lawyers make
arguments that appeal directly to moral, political, or social values or
policies. 67 Every now and then, of course, courts assert that value
choices are never for them to make but are solely the domain of the
political branches. 68 However, protestations of this kind are simply
not credible. Indeed, at least occasionally they signal that the court
is about to implement a value choice so controversial that denial is
easier than explanation. 69 Value arguments are even more prominent;
indeed, they enjoy almost total predominance, in much of the most
respected modern constitutional scholarship.70
66 A subsidiary issue within the category of arguments from precedent concerns the question
of when a case or line of cases should be overruled. The principle is clear that stare decisis is
generally entitled to less weight in constitutional than in nonconstitutional cases, see, e.g.,
United States v. Scott, 437 U.S. 82, io (1978) (citing Burnet v. Coronado Oil & Gas Co., 285
U.S. 393, 406-08 (2932) (Brandeis, J., dissenting)), and that in the former sitution the Supreme
Court stands ready to "correct its errors even though of long standing," United States v. Barnett,
376 U.S. 681, 699 (1964).
67 In some cases, such arguments provide a basis for accepting claims of constitutional rights.
See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion) (holding
a housing ordinance restricting rights of extended families to live together invalid because "the
institution of the family is deeply rooted in this Nation's history and tradition" and therefore is
protected by the due process clause); Rochin v. California, 342 U.S. I65, 169-74 (1952) (con-
cluding that extracting evidence from a defendant's stomach "shocks the conscience" and thus
constitutes an unreasonable search forbidden by the due process clause). In other cases, these
arguments provide a basis for denying claims of right. See, e.g., Bethel School Dist. No. 403
v. Fraser, zo6 S. Ct. 3159, 3164 (1986) (reasoning that schools may punish the use of obscenity
by students because it is the school's duty to enforce "fundamental values," including the "habits
and manners" of civility essential to a democratic society); Paris Adult Theater I v. Slaton, 413
U.S. 49, 57-70 (1973) (concluding that obscenity is of "slight social value" and upholding against
asserted first amendment claims the right of communities to preserve a decent society).
68 See, e.g., Harris v. McCrae, 448 U.S. 297, 326 (I98O); Ferguson v. Skrupa, 372 U.S.
726, 730-32 (1963); Williamson v. Lee Optical, Inc., 348 U.S. 483, 488 (i955); Olsen v. Nebraska
ex rel. Western Reference & Bond Ass'n, Inc., 313 U.S. 236, 246-47 (1941).
69 See, e.g., Roe v. Wade, 410 U.S. 113, x16 (I973) (asserting that the Court's task in
determining whether restrictions on abortion offend the Constitution "is to resolve the issue by
constitutional measurement, free of emotion and of predilection").
70 For a survey, see Wiseman, The New Supreme Court Commentators: The Principled, the
Political, and the Philosophical, io HASTINGS CONST. L.Q. 315 (1983). For criticisms of this
value-laden approach, see Monaghan, cited in note 3o above, at 375-87, and Van Alstyne,
Interpreting This Constitution: The Unhelpful Contributions of Special Theories of Judicial
Review, 35 U. FLA. L. REV. 209 (1983).
[Vol. lOO:11891204
HeinOnline -- 100 Harv. L. Rev. 1204 1986-1987
CONSTRUCTIVIST COHERENCE
Although various other definitions would be possible, I shall use
the term "value argument" to refer only to claims about the moral or
political significance of facts or about the normative desirability of
outcomes. Defined in this way, value arguments assert claims about
what is good or bad, desirable or undesirable, as measured against
some standard that is independent of what the constitutional text
requires. Value arguments do not claim that the particular value
judgments they assert are necessarily ones that the framers intended
to constitutionalize, or that they express the best constitutional theory.
Rather, value arguments advance conclusions about what is morally
or politically correct, desirable, or expedient as measured against some
standard. 71
To make theseclaims somewhat more concrete, it may help to
posit a provisional distinction between two kinds of cases in which
value arguments have a conventionally accepted role. One involves
constitutional language whose meaning has a normative or evaluative
component. Examples include the due process clauses, 72 the equal
protection clause, 73 the fourth amendment's prohibition of "unreason-
able" searches and seizures, 74 and the eighth amendment's guarantee
against "cruel and unusual punishments.175 These phrases constitu-
tionalize particular concepts or values. But those values or concepts
are, in the idiom of ordinary language philosophy, "essentially con-
testable. ' 76 Although the evaluative judgments that the concepts are
used to express are wholly intelligible even to those who disagree with
them, consensus breaks down over the proper criteria for determining
when such labels as "procedurally fair" or "unfair," "equal" or "un-
equal," "reasonable" or "unreasonable," and "cruel and unusual" are
apt. Different people apply the terms differently, not because some
misuse the language, but because the full meaning of each term de-
pends upon a background network of philosophical values and as-
sumptions that is itself disputable. 77 To decide when an essentially
71 This definition of "value arguments" sweeps in arguments that assert the moral rights of
groups or of individuals and those that appeal instead to goals or policies of the society that do
not give rise to rights. Cf. R. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 37, at 82
(distinguishing "arguments of policy," which "justify a political decision by showing that [it]
advances or protects some collective goal of the community as a whole," from "arguments of
principle," which "justify a political decision by showing that the decision respects or secures
some individual or group right"). Although I shall generally use the term "policy arguments" to
refer to the former and "moral arguments" to refer to the latter, my purposes in this Article
require no sharp distinction between the two.
72 U.S. CONST. amend. V.; id. amend. XIV.
73 Id. amend. XIV, § I.
74 Id. amend. IV.
75 Id. amend. VIII.
76 See Gallie, Essentially Contested Concepts, 56 PROC. OF THE ARISTOTELIAN SOC'Y 167
(1956); MacIntyre, The Essential Contestability of Some Social Concepts, 84 ETHICS I (1973).
77 To avoid reliance on the moral and political judgment of judges, one conceivable position
19871 1205
HeinOnline -- 100 Harv. L. Rev. 1205 1986-1987
HARVARD LAW REVIEW
contestable concept "properly" applies therefore requires the conscious
or unconscious undertaking of moral and political commitments.
As a result, in a variety of areas, the Supreme Court not only
engages in but also prescribes an analytical process that addresses
itself to the force of competing value arguments. The jurisprudence
of "cruel and unusual punishment" reveals a clear strand of moral
and political argumentation: the Court has held that the eighth amend-
ment must be construed in light of the "'evolving standards of decency
that mark the progress of a maturing society.' '78 An analogous struc-
ture of argument and reasoning prevails in judicial efforts to determine
when, under the fourth amendment, searches and seizures should be
held "unreasonable." To reach a judgment as to reasonableness, courts
first must determine whether the person claiming the right had a
justifiable expectation of privacy in light of what society would be
prepared to recognize as "reasonable" and then balance the individual
interest against the interest of the state in effective law enforcement.
79
Similarly, in order to determine whether procedures are adequate
under the due process clause, the Supreme Court has developed a
calculus in which judicial decisionmakers must identify the point at
which "the benefit of an additional safeguard to the individual affected
... and to society in terms of increased assurance that the action is
just [is] outweighed by the cost."80 This process plainly depends on
an assessment of value arguments concerning the significance of both
the individual and social interests that are implicated. 81
would be that judges, in construing these provisions, should never give weight to value argu-
ments about what is, for example, fair or unfair, reasonable or unreasonable; instead, they
should base their decisions in every case either on the framers' views or on the value scheme
that generally obtained at the time of the provision's enactment. See Monaghan, supra note 30,
at 367 ("No relevant evidence on the ninth amendment and very little with respect to the
privileges and immunities clause supports an inference that either was intended to have a
dynamic character."). But that view has not prevailed.
78 Ford v. Wainwright, io6 S. Ct. 2595, 2600 (1986) (quoting Trop v. Dulles, 356 U.S. 86,
ioi (1958) (plurality opinion)).
79 See Hudson v. Palmer, 468 U.S. 5,7, 525-28 (1984); see also New Jersey v. T.L.O., 469
U.S. 325, 337 (i985) (stating that courts must identify "the individual's legitimate expectations
of privacy and personal security" and weigh them against "the government's need for effective
methods to deal with breaches of public order").
80 Mathews v. Eldridge, 424 U.S. 319, 348 (1976).
81 For an insightful critique of the Court's approach to assessment of the values actually at
stake in procedural due process cases, see Mashaw, The Supreme Court's Due Process Calculus
for Administrative Adjudication in Mathews v. Eldridge, 44 U. CHI. L. REv. 28 (1976).
A more controversial example of judicial reliance on value arguments emerges from "sub-
stantive due process" cases. Substantive due process doctrine assumes that the due process
clause protects at least some substantive values deemed to be "fundamental." See, e.g., Roe v.
Wade, 410 U.S. 113, 152-55 (i973); Poe v. Ullman, 367 U.S. 497, 541 (196i) (Harlan, J.,
dissenting). But substantive due process methodology also postulates that the protected values
must not only be given content, but actually identified, by appeal to some authority outside of
the explicit constitutional text. In Moore v. City of East Cleveland, 431 U.S. 494 (i977), for
12o6 [Vol. ioo:ii89
HeinOnline -- 100 Harv. L. Rev. 1206 1986-1987
CONSTRUCTIVIST COHERENCE
In a second kind of case, the invocation of value arguments ap-
pears to reflect the slightly different assumption that, where arguments
within other categories are indeterminate or closely balanced, it is
either necessary or at least reasonable to take account of considerations
that value arguments address. The claim here, though difficult to
document, resonates with both experience and common sense. A clear
example, already discussed at some length, lies within the category of
arguments from precedent. The implicit norms of our constitutional
practice frequently permit both broad and narrow readings of past
judicial decisions. 82 Which approach ought to be preferred in any
particular case, and how a string of decisions ought to be ordered into
a pattern or subsumed under a theory, often will and should be
resolved on normative grounds. Similar results occur within other
categories of argument, such as arguments of constitutional theory.
Confronted with contending theoretical arguments that are equally or
nearly equally plausible, judges prefer those that accord with their
views of justice or sound policy.8 3
Although I have provisionally distinguished between two kinds of
value arguments - those needed to give meaning to constitutional
provisions that expressly require value judgments and those invoked
in making choices where other kinds of arguments are closely balanced
or indeterminate - this distinction is not one that I shall try to
maintain. There are too many unclear cases. Within the Bill of
Rights, for example, the protection of "the freedom of speech"8 4 ar-
example, the plurality reasoned that the due process clause protects certain family relationships
because "the institution of thefamily is deeply rooted in this Nation's history and tradition."
Id. at 503. This argument presupposes that the Constitution authorizes the protection of
nonenumerated rights. It does not claim, however, that the constitutional text expressly, or
even within the terms of a constructivist theoretical interpretation, marks family relationships
as deserving of protection or indicates how much protection they ought to get. Rather, the
argument assumes that protection is warranted because history and tradition provide family
relationships with the pedigree necessary for them to deserve weight in constitutional argument.
Cf. Poe, 367 U.S. at 542 (Harlan, J., dissenting) (arguing that in giving content to the due
process clause, the Court cannot rely on any "formula" or "code" but must refer to "the traditions
from which [the country] developed as well as the traditions from which it broke").
82 See supra text accompanying note 59.
83 Value arguments of this type are frequent in first amendment jurisprudence. See Wel-
lington, Common Law Rules and Constitutional Double Standards, 83 YALE L.J. 221, 267-70
0973). For instance, in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council,
Inc., 425 U.S. 748, 763 (976), the leading case establishing that the first amendment protects
commercial advertising, the Supreme Court argued that the "interest in the free flow of com-
mercial information" was frequently more important to consumers than their interest in "the
day's most urgent political debate" and that courts could properly take this consumer interest
into account. Although this argument could be characterized as one of constitutional theory, it
appears to have played a different role in Justice Blackmun's opinion. With plausible arguments
of constitutional theory available on both sides, the Court appealed to the value of consumer
satisfaction - one that is not clearly established as a "constitutional value" by provisions of the
constitutional text - to determine how the balance should be struck.
64 U.S. CONST. amend. I.
1987] 1207
HeinOnline -- 100 Harv. L. Rev. 1207 1986-1987
HARVARD LAW REVIEW
guably constitutionalizes a value judgment that is as essentially con-
testable as the prohibitions of "cruel and unusual" punishments and
"unreasonable" searches and seizures. To determine whether the ut-
terances of a high school student are constitutionally protected, the
Supreme Court has asserted, "[t]he undoubted freedom to advocate
unpopular and controversial views in schools and classrooms must be
balanced against the society's countervailing interest in teaching stu-
dents the boundaries of socially appropriate behaviour."8 5 Is it ac-
curate in this case to say that the concept of "freedom of speech"
requires the interpreter to resort to sources of value outside the con-
stitutional text to determine how the constitutional guarantee ought
to be construed? Or should we say instead that a constitutional
interpreter may be guided by considerations of value in resolving a
case in which other factors - such as arguments from text, the intent
of the framers, constitutional theory, and precedent - are nearly in
equipoise or at least would be viewed differently by people whose
values are different? All that seems clear is that value arguments will
somehow enter the judicial calculus.
Within the category of arguments of value, a final distinction will
prove helpful. It involves the sources of values to which a judge
might appeal. One kind of value argument refers to some repository
of values, outside of herself, that a judge or lawyer believes to be a
legitimate source of authority in constitutional interpretation.8 6 That
source might be traditional morality,8 7 consensus values,88 natural
law,8 9 economic efficiency, 90 or the original position liberal method-
ology of John Rawls. 91 Another imaginable kind of value argument
85 Bethel School Dist. No. 403 v. Fraser, io6 S. Ct. 3159, 3164 (1986).
86 See generally Bennett, Objectivity in Constitutional Law, 132 U. PA. L. RaV. 445, 447
(1984) (defining objectivity in constitutional law in terms of "sources for decision external to the
decider's own .. .standards or values" even if those external sources are not authoritative in
the sense of determining one right answer to a constitutional question).
87 See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)
("[T]he Constitution protects the sanctity of the family precisely because the institution of the
family is deeply rooted in this Nation's history and tradition."); Poe v. Ullman, 367 U.S. 497,
542 (i96i) (Harlan, J., dissenting) ("The balance of which I speak is the balance struck by this
country, having regard to what history teaches are the traditions from which it developed as
well as the traditions from which it broke."); Wolf v. Colorado, 338 U.S. 25, 28-30 (i949)
(examiming traditions of the "English speaking world" to determine views on the exclusionary
rule).
8s See Wellington, supra note 83, at 284.
89 See Dworkin, "Natural" Law Revisited, 34 U. FLA. L. REv. I65 (1982); Moore, supra
note I5.
90 See generally R. POSNER, ECONOMIC ANALYSIS OF LAWv (3d ed. 1986).
91 J. RAWLS, A THEORY OF JUSTICE (1971); see Michelman, In Pursuit of Constitutional
Welfare Rights: One View of Rawls' Theory of Justice, 121 U. PA. L. REv. 962 (1973); Richards,
Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. PA.
L. REV. 45, 59-70 (i974).
12o8 [Vol. 1OO:1189
HeinOnline -- 100 Harv. L. Rev. 1208 1986-1987
CONSTRUCTIVIST COHERENCE
would be one in which a judge or theorist simply asserts her own
values and claims their entitlement to constitutional weight. This
second sort of argument may never be made explicitly, but critics
frequently claim to find it only barely concealed in invocations of such
sources of authority as traditional morality and natural law. 92
H-. THE INADEQUACY OF TRADITIONAL THEORIES
The problem of commensuration or cumulation of the various
factors in constitutional argument has seldom been explicitly formu-
lated. Nevertheless, possible solutions can be extrapolated from sev-
eral of the better-known constitutional theories. Two types of theories
predominate. Privileged factor theories give determinative significance
to arguments within one or two of the categories and virtually ignore
other kinds of argument. Open-system theories hold that it is impos-
sible to give rule-like specifications of how different kinds of argument
should be assessed and thus maintain that answers to the problem
must vary with the situation.
At least one intuitively plausible alternative also merits discussion.
Balancing theories would weigh arguments within each of the cate-
gories proportionately to the arguments' independent power or deter-
minacy. Although each of these kinds of theories possesses initial
plausibility, all of them ultimately have disabling defects.
A. Privileged Factor Theories
One approach to what I have termed the commensurability prob-
lem is to privilege one or two types of constitutional argument. When
a privileged factor indicates a result, its conclusion controls the con-
stitutional issue. Other kinds of argument come into play, if at all,
only in cases where arguments within the privileged categories are
indeterminate or yield a tie. Perhaps the best known privileged factor
theory is "interpretivism." But Ely's theory also falls within this
rubric.
i. Interpretivism. - A prominent school of constitutional theorists
asserts that a court should hold government action unconstitutional
only on the basis of one or both of two privileged factors: arguments
from text and the intent of the framers. 93 Interpretivism, as this
92 See, e.g., Rochin v. California, 342 U.S. 165, 175-77 (1952) (Black, J., concurring);
Adamson v. California, 332 U.S. 46, 69-75, 90-92 (1947) (Black, J., dissenting); J. ELY, supra
note 6, at 44, 5o, 67.
93 For slightly varied statements of what "interpretivism" is, seeJ. ELY, cited in note 6
above, at i, and M. PERRY, cited in note 55 above, at lo-Ii. However it is defined, interpre-
tivism is more an ideal type than a descriptive label. Examples of important work approximating
the ideal type are R. BERGER, cited in note 39 above; Bork, cited in note 52 above; and
Monaghan, cited in note 30 above.
1987] 1209
HeinOnline -- 100 Harv. L. Rev. 1209 1986-1987
HARVARD LAW REVIEW
school is called, attempts to exclude value arguments insofar as pos-
sible from the constitutional calculus. The logic of the interpretivist
position calls for reducing arguments from precedent to prior inter-
pretations of text and the framers' intent. 94 Interpretivism also rejects
arguments of constitutional theory that depart from the intent of the
framers. 95
Interpretivism's intellectual attractiveness derives from two closely
related sources. The first is the assumption that the Constitution
creates a predominantly democratic and majoritarian structure of gov-
ernment. 96 With democracy representing the norm, interpretivists
argue that society has consented to be bound by decisions of the
Supreme Court, which is nondemocratic, only "within defined areas
by certain enduring principles believed to be stated in, and placed
beyond the reach of majorities by, the Constitution." 97
The related attraction of interpretivism stems from the notion that
courts as well as legislatures should be subject to the rule of law.98
Sometimes constitutional norms and standards will be discoverable
from the language of the text; other times, however, the textual lan-
guage will be ambiguous or vague. In the latter situation, interpre-
tivists require that a judge assess the permissibility of legislative action
from within rather than above the Constitution, by adhering to the
intentions, to the extent that they can be identified, of those who
wrote the operative words. 99
94 See R. BERGER, supra note 39, at 297-98. But see infra note 120 (discussing the inter-
pretivist suggestion that stare decisis must sometimes prevail against arguments from text and
the framers' intent).
95 See Bork, Styles in Constitutional Theory, 26 S. TEx. L.J. 383, 390 (1985) (criticizing
Ely's theory for portraying the Constitution as more democratic than it really is).
96 The two classic modern statements of this view, neither the work of a strict interpretivist,
are A. BICKEL, THE LEAST DANGEROUS BRANCH (1962), and J. ELY, cited in note 6 above.
The Constitution is, of course, not wholly majoritarian. See, e.g., L. TRIBE, CONSTITUTIONAL
CHOICES I I (1984); Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J.
1013, 1013-16 (1984); see also U.S. CONST. art. I, § io (contracts clause); id. art. VI (supremacy
clause). Nonetheless, it is a powerful interpretivist argument that the countermajoritarian
elements of the Constitution define an exception, which must be carefully cabined so as not to
displace the rule.
97 Bork, supra note 52, at 3; accord Adamson v. California, 332 U.S. 46, 89 (i947) (Black,
J., dissenting) ("I fear to see the consequences of the Court's practice of substituting its own
concepts of decency and fundamental justice for the language of the Bill of Rights."); id. at 69-
75, 89-92.
9s This theory of the Constitution's role and status traces to the foundational decision of
judicial review, Marbury v. Madison, 5 U.S. (I Cranch) 137 (1803). See Brest, supra note i8;
Grey, supra note 18, at 705.
99 As will become clear later, this is not an argument that I accept, although I believe that
it must be taken seriously and that its attractiveness helps to explain the power of interpretivism.
The argument's crucial gap involves the implicit assumption that judicial conformity to the
Constitution necessarily requires that judicial decisions be "determined" in every case by some-
121O [Vol. ioo:i i89
HeinOnline -- 100 Harv. L. Rev. 1210 1986-1987
CONSTR UCTIVIST COHERENCE
Without further refinement, however, interpretivism is ambiguous
on two crucial questions. The first involves the permissible scope of
arguments from text: is textual meaning confined to the original un-
derstanding or can the Constitution's meaning change over time?' 0 0
A similar ambiguity attends the interpretivist claim that the intent of
the framers should control constitutional issues: is the intent of the
framers limited to their specific intent, or may it sometimes encompass
general or abstract intent as well?' 1
These ambiguities define a divide within the interpretivist camp.
On one side stand "originalists." Originalists take the rigid view that
only the original understanding of the language and the framers'
specific intent ought to count. 102 On the other side, "moderate inter-
pretivists" allow contemporary understandings and the framers' gen-
eral or abstract intent to enter the constitutional calculus. 103
Originalism purports to be the purer and more rigorous alterna-
tive.10 4 But its purity proves its undoing, because originalism cannot
satisfy the standards that it sets for itself. The problem is that ar-
guments from text and the framers' intent cannot be kept independent
of other kinds of factors that originalists, with their conception of
what the rule of law requires, insist on excluding. Originalists concede
that arguments based on the original understanding frequently will
prove indeterminate unless appeal also is made to the intent of the
framers; to know what words meant at periods remote in time, we
commonly must refer to the intent of the drafters and ratifiers.10 5 Yet
if originalism relies on the psychological intent of the framers, it
thing other than the reasoned, and publicly explained and defended, value judgments of the
interpreting judges. For an insightful discussion of this and related issues, see Michelman,
Justification (and Justifiability) of Law in a Contradictory World, in 28 NOMOS: JUSTIFICATION
71 (J. Pennock & J. Chapman eds. 1986). For a fuller discussion of the fallacies of interpretiv-
ism's implicit theory of the rule of law, see note 13x below.
100 See supra text accompanying notes 29-31.
101 See supra text accompanying notes 37-41. It is a minor irony of theories emphasizing
the intent of the framers that the framers themselves apparently thought that their "psychological
intent" - as distinct from the natural import of their words - was a concept of little if any
validity in constitutional adjudication. See Powell, The Original Understanding of Original
Intent, 98 HARV. L. REv. 885, 887-88, 902-13 (1985). To the extent that intent was useful at
all, many of the framers argued that the relevant intent would be not their own but that of the
ratifiers. See id. at 888, 9o6-07.
102 This is the view of Professor Berger. See R. BERGER, supra note 39, at 283-418. It
also appears to be one to which Professor Monaghan is attracted, see Monaghan, supra note
30, at 374-81, though less clearly committed, see id. at 382.
103 See Brest, supra note 18, at 223-24, 231-34.
104 See Monaghan, supra note 30, at 378 (arguing that conceptualizing original intent at high
levels of abstraction, as moderate interpretivists do, "sterilize[s] the concept ... [and,] in effect,
removes it as an interpretational constraint").
105 See R. BERGER, supra note 39, at 363-72.
1987] 1211
HeinOnline -- 100 Harv. L. Rev. 1211 1986-1987
HARVARD LAW REVIEW
encounters a daunting array of historiographical, conceptual, and in-
terpretive problems. 10 6 If, for example, the framers are taken indi-
vidually, a problem exists in defining what, among a person's mental
attitudes, ought to count as an intention. 10 7 Moreover, the originalist
confronts a perplexity that borders on paradox if it turns out that
many of the framers had a certain kind of "interpretive intent": if they
intended that a constitutional provision be adapted judicially to ac-
commodate evolving needs rather than applied only to an historically
defined set of situations.10 8
Once intentions are identified at the individual