Constitutional Theory Does Matter

Sotirios A. Barber is a Professor of Political Science at the University of Notre Dame and James E. Fleming is The Honorable Frank R. Kenison Distinguished Scholar in Law at Boston University School of Law. Together they have written Constitutional Interpretation: The Basic Questions which examines the fundamental inquiries that arise in interpreting constitutional law. Below they respond to a Stanley Fish article about their new book.

As the authors of Constitutional Interpretation: The Basic Questions, we thank Professor Stanley Fish for his generous reference to the book as a guide through the long-standing debate on approaches to constitutional interpretation. (“Does Constitutional Theory Matter?”) We write to express more than gratitude, however, for we are puzzled by two elements of Fish’s piece: his denial that theories of interpretation matter and his description of our position in the debate.

Whether theories of interpretation matter depends partly on what they seek to accomplish. If Fish offers a theory of interpretation that claims to describe the nature of interpretation, as he does, he seeks to influence at least what his readers believe about interpretation. Fish does more than recommend something to others’ beliefs, however. He offers a prescription for their conduct. He says, in effect: “If you want to interpret the Constitution, you have to seek the intent of its authors.” He therefore assumes that some people will want to interpret the Constitution and that he can influence what these people do. If Fish thinks theories of interpretation don’t matter, we don’t see how he could explain his own conduct as a theorist of interpretation.

Fish might respond that theories of interpretation don’t cause judges and other interpreters to decide constitutional questions as they do – that judges do what they want to do regardless of any grand theories of interpretation or anything else. But this response wouldn’t address the question at hand. We don’t have an opinion on how most judges behave. Our question is how interpreters who would be faithful to the Constitution ought to behave. We have therefore assumed that interpreters who want to be faithful to the Constitution can behave accordingly. Fish has addressed the same kind of question. He too has told judges what to do if they want to interpret the Constitution. He has therefore assumed that some judges do or could want to interpret the Constitution and that these judges can do what he says they ought to do. Perhaps Fish does believe that theories of interpretation don’t matter, but his writings give ample evidence that he believes they can matter.

Regarding our position in the interpretive debate, we agree with Ronald Dworkin’s leading conclusion about constitutional interpretation: Judges and others who would be faithful to the Constitution as written – faithful to what Fish calls the “positive law” – have no choice but to think self-critically for themselves about the meaning of expressions like “equal protection” and “due process.” We wrote our book to present what we think is a fuller argument for Dworkin’s thesis than Dworkin himself has offered over the years. Our argument repeatedly stresses that a “philosophic approach” to constitutional meaning should mean no more than a process conjoined with an attitude: giving and exchanging reasons in an honest attempt to reach the truth about the meaning of the law and whether a proposed application comports with what debate reveals about the best understanding of the Constitution’s explicit aims, like justice and the general welfare. We call this “the philosophic approach” because, with Socrates as our model, we take the activity of philosophy to be the most exemplary form of thinking self-critically for oneself in a way that respects the evidence and the opinions of others.

Fish gives a radically different description of our approach to interpretation. He says we begin not with the words of the Constitution but with some extra-constitutional standard of morality, and then, with our “philosophical ducks in a row,” we make the Constitution conform to what some philosophic authority holds is morally right. What makes this a radical departure from our thesis is our claim (to which we devote a subsection of chapter 10) that the ducks-in-a-row process Fish describes is no different in principle from the view of “original intention” professed by jurists like Antonin Scalia, Robert Bork, and William Rehnquist. Both try to escape the burdens and responsibilities of seeking the true or best interpretation by fleeing to some kind of authority: for the former, the authority is the extra-constitutional doctrines of some favorite philosopher, and for the latter, the authority is the extra-constitutional intentions of the framers. Both approaches thus disregard the intentions evident on the surface of the Constitution as written – the “positive law,” if you prefer. A central aim of our book is to display the many fallacies of the Scalia-Bork-Rehnquist view of “original intention.” If Fish’s description of our position were correct, our position would be equivalent to the one we condemn most, on both theoretical and moral grounds.

Fish may respond that we fail to see the implications of our position – we fail to notice that it is the antithesis of what we intend. Fish hasn’t begun to show this, however, and until he does show it, we’re left with a puzzle. Our respect for Fish as a thinker compels us to assume that he understands our position well enough to describe it accurately. Why, then, does he misinterpret it?