PHILOSOPHY AND THE L AW

:
HOW JUDGES R EASON
COURSE GUIDE

Professor Stephen Mathis
WHEATON COLLEGE

Philosophy and the Law:
How Judges Reason Professor Stephen Mathis
Wheaton College

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Philosophy and the Law: How Judges Reason Professor Stephen Mathis

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Course Syllabus Philosophy and the Law: How Judges Reason

About Your Professor...................................................................................................4 Introduction...................................................................................................................5 Lecture 1 Lecture 2 Lecture 3 Lecture 4 Lecture 5 Lecture 6 Lecture 7 Lecture 8 Lecture 9 Lecture 10 Lecture 11 Lecture 12 Lecture 13 Lecture 14 Legal Realism ........................................................................................6 Legal Positivism, Part I ..........................................................................9 Legal Positivism, Part II .......................................................................12 Theoretical Disagreement in Law ........................................................15 Theories of Interpretation ....................................................................19 Legal Conservatism .............................................................................23 Judicial Activism ..................................................................................26 Law as Integrity ...................................................................................29 Common Law and Statutes .................................................................32 Constitutional Law ...............................................................................36 Dualist Democracy...............................................................................40 Regime Perspective.............................................................................44 Interpretive Synthesis ..........................................................................48 Judicial Politics versus Interpretation ..................................................52

Course Materials ........................................................................................................56

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Photo courtesy of Stephen Mathis

About Your Professor Stephen Mathis
Stephen Mathis is an associate professor and chairman of the Philosophy Department at Wheaton College. He teaches a variety of courses in legal philosophy as well as in social/political philosophy. Professor Mathis is also the co-coordinator of the Legal Studies Minor and Pre-Law Advisor. His primary research interest is the philosophy of criminal law, but he has also written on topics in political philosophy, moral theory, and ethics. In his spare time, Professor Mathis follows politics and the Supreme Court very closely and has authored op-ed pieces on constitutional law issues. The following books provide an excellent supplement to the lectures found in this course: Ackerman, Bruce. We the People: Foundations. Cambridge, MA: Belknap Press, 1993. Dworkin, Ronald. Law’s Empire. New ed. Oxford: Hart Publishing, 2003.

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Introduction
Do judges deduce their decisions from legal rules and principles, or do they decide cases based on what is fair given the facts at hand? The latter view, held by Legal Realists, serves as the starting point for Professor Stephen Mathis’s eye-opening look at how judges reason. In this compelling lecture series, the esteemed professor addresses such issues as whether the law is distinct from morality. Professor Mathis also attempts to identify a view that offers guidance to judges in deciding cases, and one that will provide the tools people need to evaluate the interpretations and decisions judges make.

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© Christian Hesse/shutterstock.com

Lecture 1: Legal Realism The Suggested Readings for this lecture are Jerome Frank’s “Legal Realism” in Joel Feinberg and Hyman Gross (eds.) Philosophy of Law and Oliver Wendell Holmes’s “The Path of the Law.” We begin this course with Legal Realism because it marks one of the earliest attempts at taking a philosophical approach to American Jurisprudence. A response to Legal Formalism (the view that judges can and do logically deduce decisions from applying legal principles to the facts of the case), Legal Realism focuses instead on how things are done in the actual practice of law. Almost all of the Legal Realists were jurists and legal practitioners, and not academic philosophers. Perhaps for this reason, Legal Realists drew more from sociological approaches than philosophical ones. However, their attention to empirical claims about how judges actually decide cases (and not about how judges should decide cases) led later philosophers of law to discount Legal Realism as a deeply flawed approach to jurisprudence. Legal Realism, especially as we see it embodied in the work of Oliver Wendell Holmes and Jerome Frank, offers a startling account of what law is: it is, fundamentally, a matter of predicting how judges will actually decide cases. This account is startling because at first blush it seems to suggest that prior court decisions, statutes, and legal principles are all less important than the judge’s particular leanings (or than “what the judge had for breakfast”1). If true, the Realist view of the law would be a deeply skeptical view, holding that the process of adjudication is nothing more than an elaborate sham, with all sorts of window dressing for what is essentially the judge’s subjective preference. While Legal Realism does espouse a degree of skepticism about the law and especially about adjudication, it is unfair to see it as coming down just to “what the judge had for breakfast.” It is important to keep in mind that most Legal Realists were concerned with the law primarily from the perspective of a lawyer, not that of a judge, a Supreme Court Justice, or a philosopher. (Holmes also uses this lawyerly point of view to drive a distinction between morality and law: he argues that the law and morality are likely to overlap for the good man [or client], but all that matters to the bad man is the law.) Treated as an empirical claim about the lawyer’s role with respect to her client, saying that the law is essentially a matter of predicting how judges will decide cases seems far less objectionable. After all, a judge is a human being who has biases and idiosyncracies, some of which can lead him away from or to hold a skewed view of particular legal rules, precedents, and principles. But Legal Realists do not believe that the law is about prediction just

LECTURE ONE

1. Realists have long been saddled with claiming that “what the judge had for breakfast” is the determining factor in judicial decisions. However, no Realist actually ever made such a claim. See Brian Leiter, “Legal Realism and Legal Positivism Reconsidered,” Ethics, 111:2 (2001), p. 281.

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because some judges have prejudices or foibles: Realists also do not believe that the various legal rules and reasons that bear on a given case actually justify or require one particular right way of deciding that case. In other words, Legal Realism holds that the law is indeterminate or undetermined by the legal rules and reasons available to judges. It is in this way that Realism is skeptical about law. In the end, this skepticism leads Realists to see judges playing a key role in determining the law, which in turn leads Realists to discuss the law in terms of predicting outcomes. Legal Realists hold that most judges do not deduce their decisions from legal rules or principles, but rather they decide cases based on their view of what is fair given the facts at hand. This is not to say that judges ignore statutes or other legal rules or principles, but rather only that different judges will inevitably interpret or weigh legal rules and reasons in different ways, and there’s nothing in the law that prevents them from doing so. It is also to say, however, that judges sometimes decide cases based on extralegal judgments about what is fair or just, and then they use legal rules and reasons to justify those decisions after the fact. Overall, Legal Realism is best understood as a sociological or descriptive theory of law and adjudication in that it tells us what law is and how judges actually do decide cases. Legal Realism fails, however, to offer a normative or prescriptive theory of law or adjudication, or a theory of what the law should be or how judges ought to decide cases. Even though in reality judges may typically decide cases according to what they think is fair given the facts of the case, that tells us nothing about whether or not it is right or even acceptable for them to do so. And while Legal Realism recognizes a range of possible interpretations of existing legal rules and principles (that contribute to law’s indeterminacy), it offers no way to evaluate interpretations as within that range or unacceptably “out there.” In fact, Legal Realism offers no means at all of evaluating judges’ decisions and thus can say nothing at all about how a judge should decide a particular kind of case or about why a particular decision may or may not be justified. While Legal Realism has interesting things to say about the actual practice of the law and the way judges decide cases, philosophers of law (not to mention judges) need more from a jurisprudential theory: we need a view that will offer some guidance to judges in deciding cases and one that will give us the tools we need to evaluate, among other things, the interpretations and decisions judges make.
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FOR GREATER UNDERSTANDING

Questions
1. Why is Legal Realism a good starting point for a course focused on how judges reason? 2. From what perspective were most Legal Realists concerned with the law?

Suggested Reading
Frank, Jerome. “Legal Realism.” Philosophy of Law. 8th ed. Pp. 125–127. Eds. Joel Feinberg and Hyman Gross. Belmont, WA: Wadsworth Publishing Company, 2007. Holmes, Oliver Wendell. “The Path of the Law.” Vol. 10. Harvard Law Review, p. 457, 1897.

Other Books of Interest
Frank, Jerome. Law and the Modern Mind. Reprint. Piscataway, NJ: Transaction Publishers, 2008. Holmes, Oliver Wendell. The Common Law. New York: Dover Publications, 1991. Leiter, Brian. “American Legal Realism.” The Blackwell Guide to Philosophy of Law and Legal Theory. Pp. 50–66. Eds. W. Edmundson and M. Golding. Oxford: Blackwell, 2003.

Websites to Visit
Oliver Wendell Holmes’s The Common Law and a book form of The Path of the Law are also available online from Project Gutenberg — www.gutenberg.org

LECTURE ONE

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Lecture 2: Legal Positivism, Part I The Suggested Reading for this lecture is H.L.A. Hart’s The Concept of Law, chapter V, “Law as the Union of Primary and Secondary Rules,” pp. 79–99. Legal Positivism traces its roots back to the famous utilitarian Jeremy Bentham (1748–1832). Though Bentham wrote extensively in political philosophy, it was his star pupil, John Austin (1790–1859), who refined and codified many of his views on jurisprudence. Austin’s work helped launch an approach to the philosophy of law we now call “Analytical Jurisprudence,” because of its focus on analyzing and trying to define the concept of law.1 The definitions of “law” Austin and his most influential successors offered all described law in terms of its roots in social practice. These philosophers were most concerned with law as it is posited (that is, as it is constructed or practiced, or perhaps even as it is put into place), and not with law as it would be best justified in moral terms; thus the label “Legal Positivism.” In his The Providence of Jurisprudence Determined (1831), Austin seeks out the essential features of law, and in particular tries to distinguish “law” from other things that might be confused with that concept. Austin defines “law” as “commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience.” Austin’s key insight here is that law has a peculiar kind of force, a force we cannot ignore, as we can ignore mere expressions of wishes, especially from those with no power to make us want to fulfill those wishes. This force, which obliges us to act, is to be distinguished from reward or being provided positive incentive to act, since a reward may not move one to act—and if it doesn’t so move one, one is made no worse off. The threat of pain, understood as punishment or fines, has the force Austin has in mind here. For Austin, law is also general in its scope: it applies to types of actions, not to one isolated act on one particular occasion. Thus, a sovereign (whether a king or a legislature or other legitimate authority) command that Joe Smith wear blue pants on the fourth of October this year would not be a law, while a command that everyone wear blue pants on the fourth of October each year could be. The requirement of the people’s habitual obedience can be said to capture this consideration (since one cannot be in the habit of obeying terribly specific, one-time commands). But more importantly, the stipulation that people
1. This focus is to be contrasted with Normative Jurisprudence, which centers on the law as it should be.

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must habitually obey a command in order for it to be properly called a “law” underlines the significance of law as a socially accepted norm. H.L.A. Hart criticizes Austin’s view as overly simplistic, but retained his positivist approach to defining law. In The Concept of Law (1961), Hart argues law should be understood as a system of what he calls “primary” and “secondary” rules. Primary rules are rules that either require or prohibit some sort of behavior in general terms, though not necessarily on pains of punishment, because Hart recognized that while Austin’s characterization of law as commands backed by the threat of punishment applied well to most criminal statutes, it hardly seemed to apply at all to most civil law. The law of contracts provides the clearest counterexample to Austin’s view and an argument for something more like Hart’s view, since contract law does not command anything on pain of punishment, but rather facilitates various arrangements and relationships, almost all of which are completely voluntary. Secondary rules, by contrast, are rules that create, repeal, or otherwise regulate the use of primary rules. Hart identifies three categories of secondary rules: rules of change, which allow laws to be repealed or modified; rules of adjudication, which address conflicts between rules and other aspects of administering rules; and the rule of recognition, which validates primary rules as valid instances of law. Though some secondary rules are spelled out rather explicitly (as a constitution, perhaps the most common form of a rule of recognition, would be), for Hart all of them need not be: secondary rules can be found among the customary practices of courts and of legal argu© Louis May/shutterstock.com mentation, for example. Hart also criticizes and refines Austin’s view of the special kind of force law must have. While Austin sees the threat of punishment that compels individuals to obey as essential to law, Hart believes that law obligates people in a deeper way. On Hart’s view, the law achieves a high level of social acceptance, high enough that people regularly internalize the duties laid out in the law and obligate themselves to uphold it. In this way, Hart sees the force law carries with it as much more social and more deeply obligating than it is on Austin’s view. In fact, Hart suggests that Austin’s view could lead us to say that a gunman robbing another individual makes law by commanding his assailant to hand over his wallet at gunpoint. One would have to stipulate that the people are in the habit of obeying gunmen in order to argue that Austin’s definition entails that the gunman is making law by holding up another person, but since so stipulating does not seem like much of a stretch, it seems that Austin’s view could be saddled with this absurd consequent. Hart argues that Austin’s view conflates obliging and obligating, and he thinks the gunman does the former and the law does the latter.

LECTURE TWO

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FOR GREATER UNDERSTANDING

Questions
1. What is the relationship between people’s habitual obedience and the law? 2. What are primary and secondary rules?

Suggested Reading
Hart, H.L.A. The Concept of Law. 2nd ed. Oxford: Oxford University Press, 1997.

Other Books of Interest
Austin, John. The Providence of Jurisprudence Determined. New ed. Lecture I, pp. 18–37; Lecture VI, pp. 164–293. Cambridge: Cambridge University Press, 1995. Waluchow, W.J. Inclusive Legal Positivism. Oxford: Clarendon Press, 1994.

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Lecture 3: Legal Positivism, Part II

The Suggested Reading for this lecture is H.L.A. Hart’s “Positivism and the Separation of Law and Morals,” Harvard Law Review, vol. 71, p. 593.

Like the Legal Realists, Legal Positivists recognize that law is distinct from morality: in fact, neither Austin’s model of law as commands backed by sanctions nor Hart’s model of law as a system of primary and secondary rules makes any reference to law as morally right, justified, or anything of the sort. Positivism focuses almost exclusively on the law’s form and pedigree and little on evaluating its content—if it does so at all. This is not to say, however, that Positivists take the law to have no moral character whatsoever either way. Rather they take the question of how just a particular law within a system is as a separate issue: whether or not this rule or that command can be properly called “law” plays no part in determinations of its moral value, and vice versa. In this way, Legal Positivism can be seen as a direct refutation of Natural Law, the view that the law legislatures create and judges enforce should closely track the “laws” of an external moral order.1 Austin and Hart both reject the view that one can establish whether or not a law is valid (or properly understood as “law”) by appeal to such external standards as “God’s law” or “the moral law” or even “the law of Reason.” Hart goes even further, however, and argues that if one wants to understand fully what the law is, one must take a perspective internal to the practice of the law. One obvious benefit of this approach is that it coincides more with the perspective judges take in deciding cases. But this argument brings to light a deeper, more important point: that judges are concerned with operating within the legal practice, and doing that entails analyzing whether or not the appropriate (legal) criteria have been met to say whether one decision or another is “the law”; it does not allow one to make broader moral evaluations of laws and particular decisions, because to do so would require one to step outside of the practice of law. In other words, the standards for legal validity are internal to the law, while standards of justice and morality are external to the law, and judges and lawyers are in the business of figuring out what the law is, and the appropriate perspective for them is internal to the practice. The biggest upshot of this argument is that if Positivism is correct, then judges and lawyers are not in a position as legal practitioners to say anything about the moral validity of the law or a particular law; they are uniquely positioned, however, to speak directly to questions of legal validity. In the end, this is why Positivism views what the law is and whether or not it is just as separate questions.
LECTURE THREE

1. Though I will discuss Natural Law theory in more detail in later lectures, I should note here that Natural Law theorists vary on the source and character of that “external moral order,” with some appealing to religion and others to various different secular conceptions of morality. “Natural Law theory” is also famously associated with the claim, “an unjust law is no law at all,” but it is far from reducible to this claim.

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This is not to say, however, that Hart thinks law and morality could have no connection whatsoever. Hart argues that we may very well have a moral obligation to refuse to obey certain unjust laws: this claim allows for laws to be unjust (and still be properly called “laws”), but identifies a point at which the moral problems with following them force us to step outside of the internal perspective and refuse to obey. Also, if a system of rules fails to meet minimal moral requirements (being sufficiently general in scope, treating like cases alike, basic impartiality, and so forth), then that system may fail to be a legal system in any proper sense of that term. As such, a certain kind of “procedural” morality is present in any proper legal system, even if certain particular laws are unjust or morally questionable. Finally, there is a third, more fundamental way in which morality plays a role in Hart’s understanding of law. In most cases, where law has been clearly posited, judges will make decisions by applying the appropriate legal criteria in the way I alluded to above. But in cases in which the law is not clearly posited, where it looks like (and where the Realists would say) the law has “run-out,” judges must do something different, because in such cases there is no clear positive law to appeal to as they make their decisions. Such cases deal with “problems of the penumbra,” meaning that surrounding many, if not all, legal rules is a shadowy area or penumbra from which judges cannot logically deduce answers (or mechanically apply the rules to the facts) because in that penumbra, the application of the rule is unclear. Realists seem to recognize something like penumbral areas as well, though Realists argue that when judges find themselves in such areas in the law, they basically fill in the gap by appealing to what they think is most fair in that particular case. But against the Realists, Hart argues that when judges decide penumbral cases, they should look at social aims, purposes, and policies, and that these serve as another level of legal sources (though admittedly less clear and more abstract than, for example, statutes on the books). These social aims, purposes, and policies judges take into consideration in penumbral cases have some moral content, though that content is arguably still internal to the legal—or at least social— system, and that such consideration of aims and purposes does allow for some blurring of the line between law as it is and law as it should be. Because Hart includes this last set of moral considerations (social aims, purposes, and policies) in his view of appropriate legal sources, some have termed his view Inclusive or Soft Positivism. Views that reject such social considerations, then, are often called Exclusive or Hard Positivism.

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FOR GREATER UNDERSTANDING

Questions
1. How can Legal Positivism be seen as a direct refutation of Natural Law? 2. In terms of the law, what are “problems of penumbra”?

Suggested Reading
Hart, H.L.A. “Positivism and the Separation of Law and Morals.” Harvard Law Review. Vol. 71, p. 593, Cambridge, MA: Harvard Law Review Association, 1958.

Other Books of Interest
Fuller, Lon L. The Morality of Law. Rev. ed. New Haven, CT: Yale University Press, 1969. Hart, H.L.A. Law, Liberty, and Morality. Oxford: Oxford University Press, 1963.

LECTURE THREE

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Lecture 4: Theoretical Disagreement in Law

The Suggested Reading for this lecture is Ronald Dworkin’s Law’s Empire, chapter 1, “What Is Law?”

Ronald Dworkin’s Law’s Empire (1986) is one of the more influential works in jurisprudence to come along in the last forty years. Dworkin was H.L.A. Hart’s star pupil at Oxford University, and in Law’s Empire he takes his mentor to task for his Positivist views. Though Dworkin is not entirely fair to Hart and the Positivists, he does offer something Hart never did: a detailed philosophical account of judicial interpretation. Since Law’s Empire includes analysis of most of the popular approaches to judicial interpretation along with powerful arguments for his own theory of adjudication, I will spend much of the next five lectures (and this one) looking at various aspects of this very important work.1 Early in Law’s Empire, Dworkin attacks the widely held view that judges should merely follow the law as it is written rather than seek to improve it. The problem is that this view presents us with a false dichotomy: it suggests that the only options a judge has are to “discover” the law or to “invent” it, when in fact judges regularly engage in a third option, engaging in theoretical disagreement about law. It’s important to see that real theoretical disagreement about law is possible, and once we do, then we can develop a theory of how judges work their way through such disagreements to decide the cases before them. Toward this end, we can identify three general types of issues that judges and lawyers regularly face: issues of fact, issues of law, and issues of political morality or fidelity.2 Issues of fact are quite uncontroversial and easy to handle, and issues of political morality or fidelity are quite commonplace in courtrooms, but the interesting issues are issues of law.3 Still, some issues of law are more interesting than others: “empirical” disagreements about what the law is (or arguments about what the text of a law is) hold little interest for judges or philosophers (because as often as not, they can just go look it up), while theoretical disagreements about what the law is or what the proper grounds of law are tend to occupy much more of their time and energy. It is
1. And it is for these same reasons that I chose Law’s Empire as a central text for this course. 2. Issues of political morality and fidelity have to do with differing views of what our political system requires of the law or of what it means to be faithful to the law in a given case. For example, when a lawyer argues that it would be wrong to sentence his defendant in these circumstances to the more severe punishment allowed within sentencing guidelines, or when a lawyer argues that it does not serve the law’s purposes to hold his client liable for damages in a given case. 3. Dworkin also refers to “fidelity” issues as ones relating to whether or not a judge should follow the law in a given case. He claims, “judges rarely consider whether they should follow the law once they have settled what it really is” (pp. 5–6). As such, he does not see the widely held view that judges should follow the law rather than invent it as a view about fidelity, but rather as a “heavily disguised” example of theoretical disagreement about law.

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important to note here that theoretical disagreement involves competing prescriptive claims, while empirical disagreement involves merely descriptive claims, at least one of which will turn out to be wrong. Dworkin argues for a prescriptive approach, one focused on theoretical disagreement, by pointing out that legal practice is fundamentally argumentative. One can understand this argumentative feature of legal practice either by taking an external point of view—the point of view of a historian or sociologist—or an internal one— the point of view of a legal practitioner. The first will, at best, tell us what kinds of claims legal professionals will make in specific situations, while the second will be able to provide arguments for why they will make those claims (or why those claims are better than others). Naturally, we should prefer the second type of approach—the internal, prescriptive approach—because this is the approach judges and lawyers take and because to a judge, a descriptive approach, even one that predicts how judges will decide cases, will not do enough to tell us why a decision should go one way or another (instead, it would only tell us that a decision would go one way or another). In this way, this approach explicitly rejects Legal Realism, and it does so for the same reasons I did at the end of my first lecture. But we can also distinguish this approach from Legal Positivism. One way to do this is by understanding Positivism as a sophisticated version of the view that the law is what legal institutions have already decided it is. In other words, if legal institutions have posited something as law, then it is law—and ideas of what the law should be play no part in the process. Since Legal Positivism concerns itself with the criteria that must be met for something to be considered “law,” the argument goes, it is best understood as a “semantic” theory of law, or a theory focused on defining the term “law.” A key feature of Positivism is the fact that society must accept the criteria laid out for something to become law—otherwise, it would not be law as far as the Positivists are concerned. Having already cast Positivism as a “semantic” theory, Dworkin extrapolates from this key feature to claim that Positivism is further committed to the view that everyone already agrees to the criteria for “law.” The idea is that if everyone did not agree on the criteria, then it would be difficult, if not impossible, to judge whether or not law was properly posited, and Positivism would seem to have difficulty getting off the ground at all. Dworkin uses this move to blast the Positivists, saying that if everyone already agrees to the criteria, then what the law is has already been decided, so the only disagreements possible within Positivism are empirical ones. In response, Hart explicitly denied that his view is a “semantic” view of law, and said that the only aspect of law everyone had agreed to on his view is the general criteria for law; people don’t need to agree about how the law must be applied in every specific case. In this way, his view allows for theoretical disagreement about how the law should be applied in some cases. In this sense, at least, Dworkin’s attack on Hart’s view seems to be unfair.
LECTURE FOUR

Nonetheless, Dworkin does have one argument against Positivism that not only appears to be fair, but also damaging. Since Positivism requires that everyone agree to the criteria for law in advance, it seems that the Positivist view of adjudication is focused on cases in the penumbra—borderline cases—because once the law is posited, it’s set, and we can only disagree 16

about specific applications of it. Dworkin’s argument is that very few cases are borderline cases, and those that are turn out to be rather uninteresting. The more interesting cases are pivotal cases, cases in which the decision will affect the future direction of the law (or at least a big part of it). I think there’s something to the claim that Positivism does not and cannot account for pivotal cases, only borderline ones, but not because Positivism is a “semantic” view of law; rather, it’s because the Positivists were much more worried about defining what law is than looking carefully at adjudicating hard cases. As such, Dworkin seems right to argue that Positivism neglects a large and very important part of the law.

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Questions
1. What follows from the realization that theoretical disagreement about law is possible? 2. Why did Dworkin say that the only disagreements possible within Positivism are empirical ones?

Suggested Reading
Dworkin, Ronald. Law’s Empire. New ed. Oxford: Hart Publishing, 2003.

Other Books of Interest
Dworkin, Ronald. Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1978.

LECTURE FOUR

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Lecture 5: Theories of Interpretation The Suggested Reading for this lecture is Ronald Dworkin’s Law’s Empire, chapter 2, “Interpretive Concepts,” and chapter 3, “Jurisprudence Revisited.” One of the knocks against semantic theories of law (theories that focus on the criteria something must meet in order to count as “law”) is that the only way semantic theorists can disagree about the law is to have an empirical disagreement. The reason they can’t disagree in any other way—like about what the criteria for law are—is because as soon as two semantic theorists disagree about the criteria for law, they necessarily define law in different ways. So even though they appear to disagree about law, they are not really talking about the same thing, but instead are talking past one another. Such “disagreement” would be like two people disagreeing about tanks when one is talking about shirts and the other is talking about armored vehicles. An empirical approach that leads us to this point will not do: we need an approach that allows us to talk about genuine theoretical (and not merely empirical) disagreements about law, the kinds real legal practitioners have, even though they do not all agree on the criteria for something being law. The approach we need is an interpretive one, since competing interpretations of something (for example, a work of art) are always directed at the same something, despite the fact that individuals use different criteria in developing their different interpretations of that something. If those interpreting law do not agree on the criteria for law, how do they keep from talking past each other and have genuine theoretical disagreements about law? The answer Dworkin offers begins by examining interpretation in very general terms. The idea is that taking “the interpretive attitude” with respect to most practices involves first assuming that the practice has value or a purpose that is independent of the basic workings of the practice (like the rules), and then assuming that the basic workings of a practice are not set in stone, but are instead affected by the practice’s purpose or value. It is important to note that the interpretive attitude is possible only from within a practice or from the internal perspective. For interpretation to be possible, everyone participating in a given practice must see it in many of the same ways, and this includes seeing it as having roughly the same value or values. They don’t all have to agree that every aspect of the practice has to be understood in a given way, or that they all agree on criteria. Instead, they must have a basic shared understanding of the practice—and their views on it must be similar enough that they can understand each other when they discuss the practice, but different enough that they can have genuine disagreement about it. From this perspective, general agreement on a practice’s values does not rule out disagreement about how the practice does or should embody those values nor about how to prioritize competing values within that practice. Still, that general agreement provides an initial basis for 19

evaluating whether or not an interpretation is viable: if it fails to fit with the practice as it is generally understood, then it is not a viable interpretation.1 With all of this talk of interpretation, it’s helpful to distinguish three main types of interpretation—conversational, artistic or creative, and scientific—and then to see that legal interpretation is a species of artistic interpretation, what Dworkin calls “constructive interpretation.” First, though, we must distinguish legal interpretation from conversational interpretation, and if we can do that, we will in the process undermine many appeals to original or legislative intent, since the speaker’s intention is definitive in cases of conversational interpretation. Briefly, the argument goes like this: in conversational interpretation, there is one criterion for determining whether or not you have the right interpretation of what the other person in the conversation meant, and that criterion is what he meant or what he intended his words to mean. But if legal interpretation were like that, then Supreme Court justices would focus a lot more than they do on historical accounts of what the Framers of the Constitution had in mind when they wrote and voted for it and on phone calls to current legislators who wrote statutes they review. No, legal interpretation seems to be much less about what legislators meant and more what the law itself means (to the American people, perhaps). In this way, legal interpretation is much more like interpreting a work of art, where the artist’s intentions do not necessarily dictate what the work of art means to a given individual or to generations who see it or read it hundreds of years later. As such, legal interpretation is essentially constructive, in that it tries to provide an understanding of the law that ultimately portrays the law in the best possible light. In other words, constructive interpretation seeks to put together an understanding of a given practice that fits well with the way that practice actually works and simultaneously justifies that practice according to its own values better than other candidate interpretations. Dworkin ends chapter two with a long and at times confusing discussion of various kinds of skepticism one could have with respect to interpreting a practice. There are basically three different types of skepticism about interpretation: external, internal, and global internal. External skepticism, or skepticism about the practice being properly justified by reference to some value outside of that practice,2 is not particularly
1. For example, it seems fair to say that the point of the practice of dating is to develop romantic relationships of one sort or other. Given that claim, an interpretation of dating that depended on understanding it as a way of keeping restaurants in business would be, on its face, a bad (or nonviable) interpretation of the practice. 2. Justifying a practice by establishing its link to some external value is precisely what the Natural Law Theory (see Lecture 1) advocates: All law must be just or accord with the laws of God or of Nature or of Reason in order to be valid law. The external skeptic claims that no such external value or law exists, so there is nothing outside of the law we can appeal to that will help us validate the law.
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LECTURE FIVE

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troubling or threatening, since law seems to have its own internal principles that justify it working the way it does, and that fact makes justifying law from the outside, by appeal to some external order or law, unnecessary or beside the point. Internal skepticism, or skepticism about particular interpretive moves within the practice, and global internal skepticism, or skepticism about the very interpretive attitude behind a given practice, are both more troubling to Dworkin because if either turns out to be right, especially global internal skepticism, then our understanding of law would fall in on itself. We have some work to do before we can answer the internal skeptic: if we can show that the values and workings of the practice of law actually can and do justify particular interpretations of law, then not only will we be able to prove the internal skeptic wrong, but we also will have made a case for a theory of legal interpretation.

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FOR GREATER UNDERSTANDING

Questions
1. What is the “interpretive attitude”? 2. How is legal interpretation much like interpreting a work of art?

Suggested Reading
Dworkin, Ronald. Law’s Empire. New ed. Oxford: Hart Publishing, 2003.

Other Books of Interest
Raz, Joseph. The Concept of a Legal System: An Introduction to the Theory of Legal Systems. 2nd ed. Oxford: Clarendon Press, 1980.

LECTURE FIVE

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Lecture 6: Legal Conservatism

The Suggested Reading for this lecture is Ronald Dworkin’s Law’s Empire, chapter 4, “Conventionalism.”

This lecture is titled “Legal Conservatism” because the first interpretive approach Dworkin considers in Law’s Empire is a view he calls “Conventionalism,” many aspects of which coincide with what most of us might call “legal conservatism.” Legal conservatism is the position I discussed previously in Lecture 3, and it generally holds that judges should enforce the law as it is, not invent it or try to improve it as they go. Of course, there are other views that might fit into the category of “legally conservative,” and some of those I will discuss in this lecture. Others, however, such as those that appeal to “original intent,” I will leave aside for now, but will address in later lectures. Conventionalism is the view that the law is only what legal conventions (legislation, judicial decisions, and so on) explicitly say it is, such that all competent legal practitioners would agree about what those conventions require. The aspect of Conventionalism that lines up with the layman’s view of legal conservatism is Conventionalism’s demand that judges not enforce anything other than explicit conventions (such as moral or political views). However, unlike the layman’s view, Conventionalism recognizes that existing legal conventions do not provide clear answers in all cases. Conventionalism must acknowledge that the law is incomplete in this way because Conventionalism is an interpretive approach to the law, and as such, it recognizes the fact that despite considerable agreement, there are areas in which one finds “gaps” (at least that’s Conventionalism’s view). To address these gaps, Conventionalism allows judges to use their “discretion” to decide cases when legal conventions do not explicitly require a particular decision one way or the other—and once they do, those decisions themselves become legal conventions lawyers and judges will follow. This part of Conventionalism is reminiscent of moves Legal Realism and Legal Positivism suggest for judges when the law “runs out.” We should evaluate Conventionalism using the methodology I suggested in the last lecture for evaluating constructive interpretations in general: first, we must ask if this interpretation of the law fits the law as it is practiced, then ask if it justifies the law better than other interpretations. We can use this two-stage evaluative process, fit and justification, for all three candidate interpretations Dworkin considers in Law’s Empire. In the end, Conventionalism does not actually fit with present practice, 23

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though it might seem to at first: since most cases that deal with explicit legal conventions would not come before a judge (because they would never be brought as cases or would be settled out of court, given that the law would be clear in such cases), Conventionalist judges would end up using their discretion and filling in gaps far more often than they would just “follow the law as it’s written.” Such a picture does not fit with present practice: we do not see judges claiming that the law has run out and that they are thus using their discretion. To the contrary, judges seem focused on figuring out what the law is or demands in a given case. A true Conventionalist would not scrutinize law that was controversial or unclear—in such cases, he would simply use his discretion. Also, the kind of agreement we find in the law seems more like a principled consensus rather than mere convention or a particular way we just happen to do things. This point is important because Conventionalists would not look to principles that underlie the law to help them decide cases (as real judges do), because then they would be appealing to something other than explicit legal conventions. Even if it did fit present practice, however, Conventionalism would still have to justify our practice of law better than other interpretations. In order to do that, one would have to show that the dominant value behind Conventionalism, the political value of protected expectations,1 plays a major role in portraying the law in its best possible light. In other words, for Conventionalism to pass muster at the level of justification, the law must be best understood as a system that, first and foremost, protects the expectations of those subject to it. However, if that is the best goal for the law to have, there seems to be an interpretation of the law that achieves it and protects expectations far better than Conventionalism does. Unilateralism holds that unless there is something explicit in the law that would require a judge to decide in favor of the plaintiff, the judge must decide for the defendant. Unilateralism would protect expectations much better than Conventionalism ever could, but Unilateralism cannot even pass the basic threshold of fit: though criminal law resembles Unilateralism in some ways, no other areas of our law operate this way at all. Beyond that point, Unilateralism is too rigid and cannot provide the kind of flexibility (and account for undermining rather than protecting expectations when that needs to happen) we have and need in the law as it is practiced. What we need is the right balance between stability and flexibility. But rather than argue directly that Conventionalism does not have the right balance, we can look toward Pragmatism, the next theory we’ll consider. Pragmatism holds that state coercion is justified not by appeal to legal conventions, but rather by how defensible the decision is in general terms. The claim is that Pragmatism provides both more flexibility than Conventionalism and as much predictability as Conventionalism, though we’ll have to wait until the next lecture to see how Pragmatism achieves this. If Pragmatism does in fact offer a better balance of predictability and flexibility, then Conventionalism cannot justify the law better than the alternatives and thus fails as an overall interpretation of the law.
LECTURE SIX

1. “Protected expectations” refers to a kind of stability in the law that keeps surprise changes to a minimum. So understood, protecting expectations is clearly valuable in a legal system, as too much surprise introduces confusion and inefficiency in the administration of the law.

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FOR GREATER UNDERSTANDING

Questions
1. When and why would a Conventionalist employ discretion? 2. How does Unilateralism protect expectations better than Conventionalism?

Suggested Reading
Dworkin, Ronald. Law’s Empire. New ed. Oxford: Hart Publishing, 2003.

Articles of Interest
Coleman, Jules L. “Negative and Positive Positivism.” Chicago: The Journal of Legal Studies, vol. 11, p. 139, 1982. Postema, Gerald. “Coordination and Convention at the Foundations of Law.” Chicago: The Journal of Legal Studies, vol. 11, p. 165, 1982.

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Lecture 7: Judicial Activism

The Suggested Reading for this lecture is Ronald Dworkin’s Law’s Empire, chapter 5, “Pragmatism and Personification.”

As with Lecture 6, this lecture gets its title from the view that most generally resembles Pragmatism, the interpretative approach Dworkin takes up in chapter 5 of Law’s Empire. Pragmatism rejects the Conventionalist claim that past political decisions justify the use of state coercion and holds instead that it is the moral or political value of the decision itself that justifies such coercion. If the phrase “the moral or political value of the decision itself” here seems vague, it is: a Pragmatist judge decides cases based on her particular view of what decision is best for the community—and different judges will tend to employ different moral or political standards to determine what “best” means. Dworkin argues that Pragmatism would likely guarantee predictability as well as Conventionalism would, since undermining legal expectations tends to be disruptive for the community (because then citizens have a harder time, among other things, avoiding sanctions or lawsuits). Just about any approach to what is best for the community will recommend that judges generally uphold the most explicit legal conventions to avoid such disruption. Beyond this point, however, Dworkin suggests that Pragmatist judges would tend to go even further and guarantee some notion of rights, even though Pragmatism would ground legal rights by appeal to moral or political values beyond past political decisions. The result would be what Dworkin calls “as-if rights,” or the practice of treating citizens for the most part as if they have rights—when doing so turns out to be best for the community—even though, if pressed, Pragmatists would deny that there are any legal rights in the strongest sense (that would override any policy considerations weighing against them). So understood, Pragmatism would achieve a level of predictability roughly equivalent to Conventionalism’s, but with much greater flexibility to modify the law when doing so would be better for the community. On the question of fit, however, Dworkin argues that even though Pragmatism fits practice better than Conventionalism does, Pragmatism nevertheless seems at odds with the way actual judges reason in hard cases. On the one hand, actual judges take into account past political and legal decisions and work hard to reason from them to find principles upon which they base their decisions. Pragmatist judges, on the other hand, would not need to work nearly so hard reasoning out their decisions: all they would need to do is appeal to their preferred moral or political value systems, since past political and legal decisions have at best only indirect impact on how a Pragmatist judge decides a case. Dworkin also seems to think that real judges actually worry quite a bit about rights and not just “as if” they existed. Of course, real judges could be Pragmatists in disguise, cloaking their own moral or political views under disingenuous talk of legal conventions and rights, but then 26

LECTURE SEVEN

Pragmatism meets the threshold of fit only if we understand judges as wellmeaning liars.1 Despite these problems, Dworkin suggests that Pragmatism’s real failure is at the level of justification, primarily because it offers a view of rights with which he fundamentally disagrees. Before he concludes chapter 5, Dworkin suggests—without much in the way of argument—that rights should be understood as nonstrategic or grounded in principle in such a way that policy considerations almost never override them. Based on this understanding of rights, Dworkin suggests that insofar as Pragmatism would justify the practice of law without reference to overarching principles and rights, Pragmatism cannot justify the law better than an interpretative approach that requires the law as a whole to be consistent in principle or to be coherent. Even though Dworkin appears to attack Pragmatism simply for failing to share his (undefended) view of rights, inasmuch as this rights-based attack leads him to this broader claim about coherence (or integrity), Dworkin seems to have much more of an argument. Pragmatism does seem to allow—if not encourage—judges to make decisions that go against deeper considerations of principled coherence in the law as a whole, primarily because it encourages judges to seek out what is best for the community in making their decisions, regardless of how well that decision is consistent in principle with the rest of the law. To finish off Pragmatism, then, Dworkin must show that coherence or integrity in principle is a central value in the practice of law. This move mirrors the move he makes with respect to Conventionalism at the end of chapter 4, in that he suggests an alternative that appears to justify the law better than the approach in question and that he will discuss in detail in the next chapter. And like last time, if Dworkin turns out to be right that integrity is a central value in our practice of law, then he will have proven that Pragmatism does not provide the best justification for the law, and Pragmatism will have failed as an interpretation of the law.

1. Interestingly, those who rail against judicial activism see activist judges in just this way, and that is part of their case against such judges: activist judges are problematic, in part at least, because they foist their own political and moral views on citizens by smuggling those views into their decisions and making them look like they are supported by actual legal arguments.

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FOR GREATER UNDERSTANDING

Questions
1. How is Pragmatism at odds with the way actual judges reason in hard cases? 2. In what way does Pragmatism allow judges to make decisions that go against deeper considerations of principled coherence in the law?

Suggested Reading
Dworkin, Ronald. Law’s Empire. New ed. Oxford: Hart Publishing, 2003.

Other Books of Interest
Dworkin, Ronald. A Matter of Principle. Cambridge, MA: Harvard University Press, 1986.

LECTURE SEVEN

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Lecture 8: Law as Integrity

The Suggested Reading for this lecture is Ronald Dworkin’s Law’s Empire, chapter 6, “Integrity,” and chapter 7, “Integrity in Law.”

At the end of the last lecture, I noted that if we could show that integrity is a key political value in the law, then we would be able to demonstrate that Pragmatism does not justify the practice of law better than the alternatives. Perhaps not surprisingly, the alternative Dworkin believes to be preferable to Pragmatism is going to depend on integrity as a value in interpretation, and that alternative will be Dworkin’s own adjudicative scheme, which he calls “Law as Integrity.” By “integrity” here, we mean an overall coherence in principle. We can begin defending integrity as a value in law by arguing for integrity from the legislative perspective, as opposed to the judge’s point of view. We begin with integrity in legislation because the best interpretations of the law will speak not only to deciding cases retrospectively or based on existing law, but also to creating law as legislators do. This is why Pragmatism is preferable to Conventionalism: Conventionalism’s ideal of protected expectations is a retrospective value, one that does not address at all the forward-looking concerns we have in legal disagreements. Since Pragmatism can protect expectations and also explain how we should prospectively change the law, Pragmatism is preferable to Conventionalism and provides a rival account to Law as Integrity. To determine whether or not integrity is a value in legislation, we will use the same standards of fit and justification that we have used to evaluate other candidate interpretations. Integrity in legislation fits current practice in part because it explains why we avoid “checkerboard laws,” or laws that are nothing more than a policy compromise between two sides, rather than an expression of a principle. An example of a checkerboard law would be a law that allowed women born on odd years to have abortions, while criminalizing abortions for women born on even years. The fact is that such laws offend our legal sensibilities, and they do so because on matters of such importance

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(especially in matters of rights), we expect a given law, if not the law as a whole, to speak with one principled voice. Since checkerboard laws fail to do that—and instead reflect arbitrary policy compromises—they fail to fit with present practice, and that failure serves as evidence that integrity is a key value in the law as it is practiced. With respect to justification, the question is: Does the law make more sense, is it more easily defended, if integrity is a key value in it? To find the answer, we have to think about whether a political system based on a set of coherent principles (one that has integrity) would be better than one based on no principles at all.1 It seems safe to say that a community of principle would find it easier to generate political obligation and justify state action than would unprincipled communities. If that’s true, then it is the value of integrity that makes communities of principle better. From the perspective of justification, integrity then appears to be a key value in the law. In the end, however, neither the argument from fit nor the argument from justification is conclusive in favor of integrity as a value, and Dworkin admits as much.2 Still, these two arguments do at least create a strong presumption in favor of integrity as a value in the law, especially as it is practiced. That’s really all we need, though, to justify moving on now to exploring integrity in adjudication, or Law as Integrity. The main device Dworkin uses for explaining the simultaneously retrospective and prospective approach of Law as Integrity is the Chain Novel analogy. The idea is that a judge’s work, especially in hard cases, is like the work of an author charged with writing the next chapter in an unfinished novel, in which the previous chapters were each authored by a different writer. The first and more basic aim is to make the next chapter fit with the chapters the chain novelist inherits: one could not take the first chapters of The Old Man and the Sea, for example, and then write a chapter that tells a science fiction story or one that makes no reference to characters or plot lines already established—at least one could not do either of these things and still expect anyone to be willing to call this chapter a good candidate next chapter of the novel. The second and more difficult aim is to write the next chapter in such a way that it both makes the best sense of the preceding chapters and sets up later chapters so as to make the novel the best it can be. Overall, the goal is to write this chapter so that it shows the novel as a whole in its best possible light. The chain novelist’s work, then, is very much like the judge’s in that both must engage in interpreting the subject matter before them before they can begin to contribute the next chapter or decision, whatever the case may be. And in writing the next chapter or decision, both will make sure that their interpretations fit with what’s come before and justify the whole work—or make it the best it can be, both up to this point and as more of it is written.
LECTURE EIGHT
1. Here, there are at least two options: A de facto political system, or one in which we merely “find ourselves,” that grows up inadvertently and organically (say, where individuals shipwrecked on an island find themselves following the most charismatic member of their group); or a purely conventional political system, or one based on mere traditions or agreed-to practices (where those practices are not grounded in principle). 2. This is because integrity tries to balance justice or rights against policy, and a perfectly just or perfectly efficient society may need no such balancing, and thus have no particular need for integrity. Of course, we rarely see perfectly just or perfectly efficient societies.

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FOR GREATER UNDERSTANDING

Questions
1. Are there any current laws that could be considered “checkerboard laws”? 2. What is the Chain Novel analogy?

Suggested Reading
Dworkin, Ronald. Law’s Empire. New ed. Oxford: Hart Publishing, 2003.

Other Books of Interest
Feinberg, Joel. Problems at the Roots of Law: Essays in Legal and Political Theory. Oxford: Oxford University Press, 1988.

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Lecture 9: Common Law and Statutes

The Suggested Reading for this lecture is Ronald Dworkin’s Law’s Empire, chapter 8, “The Common Law,” and chapter 9, “Statutes.”

With the Chain Novel analogy as a starting point, the next step is to apply Law as Integrity to real cases and see how it works. But it will not work the exact same way in all sorts of cases. In the Anglo-American legal tradition, there are three main sources of law: common law (focusing on prior judicial decisions or precedents), statutes, and constitutions. As a result, cases tend to fall into one of three main categories—common law, statutory, and constitutional—and each category has a different focus. Law as Integrity reflects those varying concerns and adjusts its focus accordingly. Nonetheless, the general outline of the method Law as Integrity employs to decide cases is the same no matter the type of case or area of law: It will evaluate candidate interpretations using the same standards we used to evaluate Conventionalism, Pragmatism, and integrity in legislation. First, a Law as Integrity judge will see if the candidate interpretation fits with the way other, similar cases have been decided; and second, she will ask whether that interpretation justifies the decision better than other candidate interpretations— meaning that the interpretation and the principle behind it portray the law as a whole in its best possible light. At the initial phase, judges will rule out those interpretations that do not fit at all (or do not fit adequately) with the pattern of decisions in that area of law. Those interpretations that survive the threshold of fit are then evaluated in terms of how well the principles they express justify the law in that area and as a whole. Exactly what the standards of fit and justification look like for a Law as Integrity judge, however, will depend upon what type of case she is considering. Common law refers to deciding cases based on past precedent decisions rather than based on statutes or constitutional provisions. In a common law case, there is no statute to which a judge can refer to help decide it one way or the other. In the United States and the United Kingdom, most civil litigation cases (over contracts, personal injury, and the like) are common law cases, in which there are relatively few laws on the books and precedent decisions play a decisive role. A Law as Integrity judge would decide common law cases by focusing first and foremost on precedent decisions. She would begin the process of deciding a case by listing the possible interpretations of the law in the case at hand, and then would rule out those interpretations that failed to fit with the precedent decisions most directly relevant to the case. She would also rule out any candidate interpretations that didn’t express a principle on which she could decide the case. A good example of an interpretation that failed to express a principle would be one that draws an arbitrary line (and not a principled one) between one kind of case and another (as would the “checkerboard” laws we discussed in Lecture 8). In this way, Law as Integrity is about 32

LECTURE NINE

principles right from the start, and that fact marks a significant difference between Law as Integrity and the other views we have discussed. The Legal Realists and Positivists, for example, do not count the principles expressed in the law as part of what makes something a “law.” Continuing this focus on principles, if more than one interpretation survives the initial threshold of expressing a principle and fitting with past decisions in this area of law, then a Law as Integrity judge would then ask which interpretation makes the best sense of—or best justifies—the precedent cases and the law in other, related areas. This test of justification requires arguments about which principles are at play in a given case and, if they compete, how they ought to be weighed with respect to one another. The best arguments will treat judges who had made the relevant precedent decisions as earlier authors of the “chain novel,” honoring the principles upon which they had based their decisions and striving to carry their “story” forward in a way that makes the most sense and that makes the whole law the best it can be. When a Law as Integrity judge approaches a case dealing with a statute, and not common law decisions from the past, she will apply standards of fit and justification in much the same way she does in common law cases. However, in statutory cases, a Law as Integrity judge will treat the legislative body that made the statute, and not other judges, as an earlier author in the chain novel of law. She will also ask, at the level of justification, what view the statute portrays the political history of that statute and of the law in general in the best possible light.

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The main rival to Law as Integrity when it comes to interpreting statutes is the “speaker’s meaning” or “legislative intent” approach (a variant of which is what some call “original intent” theory). To focus on legislative intent to figure out a statute’s meaning, however, is to abandon a constructive interpretation in favor of something that operates like a conversational one.1 This sort of interpretation poses a number of difficulties for a judge: First and foremost, it is often impossible to determine legislators’ exact intentions with respect to a statute they pass, especially if they died long ago and likely never even contemplated the sort of problem a judge might face now with respect to an old statute. Furthermore, it is not clear whose intentions should count or whose should count more than others when legislators may have had different views on, reservations about, and reasons for voting for a statute. The difficulties only multiply when one factors in those legislators who decided not to repeal or amend the statute after it was passed and thus implicitly endorsed the statute and a given understanding of it along the way. Considered together, all of these difficulties make the legislative intent approach inferior to Law as Integrity. Faced with these problems, a thoughtful judge following the legislative intent approach will ultimately be forced to focus on the legislators’ convictions as a means of gaining insight into their intentions. By “convictions” here, we mean principles one holds dear and understands as having a particular weight when they conflict with each other or other principles. Once the legislative intent judge shifts to focusing on convictions, not only is he no longer really focusing on legislator’s intentions, but he is also essentially taking the same approach a Law as Integrity judge takes. This move only weakens the legislative intent approach further, especially as an alternative to Law as Integrity.

1. I discuss these two very different approaches to interpretation in detail in Lecture 5.

LECTURE NINE

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FOR GREATER UNDERSTANDING

Questions
1. How would a Law as Integrity judge decide a common law case? 2. In statutory cases, how will a Law as Integrity judge treat the legislative body that made the statute?

Suggested Reading
Dworkin, Ronald. Law’s Empire. New ed. Oxford: Hart Publishing, 2003.

Other Books of Interest
Greenawalt, Kent. Legislation: Statutory Interpretation: 20 Questions. New York: Foundation Press, 1999.

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Lecture 10: Constitutional Law The Suggested Reading for this lecture is Ronald Dworkin’s Law’s Empire, chapter 10, “The Constitution,” and chapter 11, “Law Beyond Law.” Despite its title, this lecture is just the first of many devoted to constitutional law—in fact, the remaining lectures in this course will examine constitutional law issues in one form or another. Constitutional law cases are some of the more challenging to interpret, given that constitutional cases focus on common law, statutes, the Constitution, and the relationship between them—all at the same time.1 Also, constitutional law cases tend to be among the more philosophically complex cases, since they often have to do with rights. For these two reasons, along with the fact that constitutional law cases attract more interest than most other cases, it is important to see how well Law as Integrity handles constitutional law cases. And for these same reasons, we will examine in subsequent lectures an alternative to this approach as well. At the constitutional level, Law as Integrity will appeal to the same general standards of fit and justification it used to decide common law cases and statutory cases. However, since the Constitution is the most fundamental law, the Law as Integrity approach will draw on all aspects of the law in deciding constitutional cases, including previous decisions of courts and U.S. political and legislative history. As such, it will treat the American people, as they express themselves through their laws and through their judicial system, as prior authors in the chain novel of constitutional law.
1. Most constitutional law cases require the Supreme Court to determine whether a statute is constitutional or unconstitutional. Of course, constitutional law cases bear on common law decisions and on regulations as well, but in this lecture, I will focus on judicial review of statutes.

LECTURE TEN

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We can compare this approach to three other popular approaches to deciding constitutional cases: Historicism, Passivism, and Activism.2 Historicism is basically Conventionalism applied to constitutional cases: Historicism requires judges to look first at the clear textual meaning of the Constitution and the statute in question, and when the texts are not clear, it relies heavily on Supreme Court precedents. When neither the texts nor the precedents yield a clear answer, then Historicists turn to legislative intent (which we discussed in Lecture 9). Some would argue that current Supreme Court Justices Scalia and Thomas are the most obvious examples of real Historicist Justices. The problem with Historicism is that, like Conventionalism, it values the stability of the law over all else, and it is not clear that stability is the highest value in constitutional law: many of our founding principles have found new application as time has passed, and this fact alone undercuts the importance of stability in constitutional jurisprudence. Activism refers to the stereotypical view of judges who decide cases based on their political views (as Pragmatism recommends, as we discussed and criticized in Lecture 7). Passivism maintains that judges should defer to the legislature when it has made a decision on a given issue. The basic approach here is skeptical of the view that the judiciary should check the legislative branch by enforcing constitutional provisions against it. This fact alone makes it hard to see Passivism as presenting a good fit with our practice: checks and balances and the Supreme Court’s role in judicial review are widely accepted in our legal system. Nonetheless, even if somehow Passivism passed the test of fit, it would not pass the test of justification, because it places democratic values above all else, even though almost all Americans understand the Constitution as providing rights against the government (or the majority). To the extent that we have already explored the faults of Conventionalism, Pragmatism, and the speaker’s meaning (or legislative intent) view, we have already seen how Law as Integrity is distinct from and preferable to Historicism, Passivism, and Activism. Still, it is helpful to see how a Law as Integrity judge will decide a constitutional law case to draw the distinctions more clearly. In a case like Brown v. Board of Education (1954), a Law as Integrity judge would consider a list of candidate interpretations, each one appealing to a different way of treating laws that make racial classifications: 1) suspect classification, 2) banned categories, and 3) banned sources. Suspect classification holds that racial classifications are suspect, or that the Constitution is predisposed against them, but would nonetheless permit such classifications if it can be shown that they treat equally the groups the law distinguishes between. This is the standard used in the most direct precedent case, Plessy v. Ferguson (1896),3 which established the doctrine of “separate but equal.” A Law as Integrity judge would rule out deciding Brown according to suspect classification, because that interpretation did not fit the view of the
2. Dworkin defines and names these views Historicism, Passivism, and Activism, even though few, if any, jurists would refer to themselves as Historicists, Passivists, or Activists. These terms refer to groups of interpretive approaches. Aggregating and categorizing them under these labels allows one to offer general criticisms of the type of approaches each group represents. 3. Plessy v. Ferguson, 163 U.S. 537 (1896).

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Court or U.S. Constitutional law in 1954. Banned categories holds that the Constitution simply forbids laws that make classifications based on certain things, and race is one of those. Banned sources holds that the Constitution allows laws that make certain kinds of classifications (like racial ones) but only when the classification is not motivated by any racial prejudice or bias (and it serves some rational purpose of the state). A Law as Integrity judge would find that either of these candidate interpretative standards would work for the sake of deciding Brown, and both would lead the judge to decide in favor of Brown, as the Court actually did in 1954. Once the Court is faced with an affirmative action case (like Bakke4), however, a Law as Integrity judge would say then the better interpretation, the better justification for the law as a whole—for both Bakke and Brown—would be the one that appealed to banned sources, not banned categories. What this shows is that Law as Integrity can respond to changes in society and in the country’s political morality. But because Law as Integrity responds only to those changes as they are expressed through various sources of law, its response is based on various sources of law, not on judicial activism. And since Law as Integrity sees the Constitution as the most fundamental law and as guaranteeing citizens’ rights against the legislature, it will not decide cases as Passivism recommends. Finally, to the extent that Law as Integrity accounts for and well handles change in the law, it is at odds with Historicism and its focus on stability. Overall, as I have stated several times now, Law as Integrity will strive to portray the law in its best possible light. At the constitutional level, that means constantly reinterpreting and refining earlier decisions in light of changes in the law and in the country’s political morality, opening up the possibility that as time goes on, the law will, through the efforts of judges and legislators, become more and more unified as a whole, will have more and more integrity.
4. Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

LECTURE TEN

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FOR GREATER UNDERSTANDING

Questions
1. What fact undercuts the importance of stability in constitutional jurisprudence? 2. What are the distinctions among suspect classification, banned categories, and banned sources?

Suggested Reading
Dworkin, Ronald. Law’s Empire. New ed. Oxford: Hart Publishing, 2003.

Other Books of Interest
Scalia, Antonin. A Matter of Interpretation. Princeton, NJ: Princeton University Press, 1997. Tribe, Laurence H. American Constitutional Law. 3rd ed. Emeryville, CA: West Publishing Company, 1999.

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Lecture 11: Dualist Democracy

The Suggested Reading for this lecture is Bruce Ackerman’s We the People: Foundations, chapters 1 and 2.

Bruce Ackerman’s We the People: Foundations offers an understanding of the Constitution and constitutional law that is as focused on political history as Dworkin’s view in Law’s Empire is focused on legal philosophy. At the same time, legal philosophy is as much a part of the background Ackerman assumes as political history is part of the background Dworkin assumes. Given the way these views complement each other and the influence Ackerman’s work has had in legal circles, his Dualist Democracy approach provides a particularly interesting and helpful alternative to Dworkin’s Law as Integrity. Ackerman calls his view “Dualist Democracy” because it sees in the U.S. legal system two “tracks” for lawmaking: the constitutional or “higher” lawmaking track and the everyday or “normal politics” track, which results in statutes and regulations. These two tracks are embodied in the U.S. Constitution itself: there are separate and different rules expressed in it for creating ordinary, everyday laws on the one hand, and for amending the Constitution on the other. Given these different sets of rules, the government (via elected representatives) makes normal laws, while the People are responsible for making higher law.1 On this view, the Supreme Court plays the role of preserving the higher law from being undermined or chipped away by normal politics and everyday lawmaking. Despite its intuitive appeal, the Dualist approach stands in stark contrast to several other popular approaches to understanding our system of constitutional law. Monism focuses almost exclusively on the democratic decisions of elected officials and thus objects when the Supreme Court invalidates some law, and it objects on the grounds that the Court’s invalidating it is “countermajoritarian.” As such, Monism seems to collapse the two tracks of Dualism into one dominant track (thus its name). Against Monism, it’s important to notice that both of the tracks Dualism suggests are essentially democratic and that it is appropriate that the one that requires more people approve of it (the higher law track) has prominence over the other. Rights Foundationalism holds that rights are more fundamental to our constitutional law than democratic procedures are, and for this reason, rights serve as a check on normal politics. Foundationalists maintain that these rights are better understood through appeals to philosophy than through appeals to any sort of politics. Against this view, Dualism argues that any understanding of constitutional rights must be grounded in democratic processes—and not in

LECTURE ELEVEN

1. Here, “the People” seems the appropriate term, given the supermajorities (two-thirds of the House and Senate and three-quarters of the state legislatures) required for higher lawmaking.

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philosophical theories—to have any legitimacy. Unlike Foundationalism, then, Dualism is first and foremost a democratic approach, in which rights play a secondary and dependent role. Interestingly, Ackerman identifies Dworkin as a Rights Foundationalist. While some of Dworkin’s writings certainly suggest that he leans in this direction, it is not clear that Law as Integrity is necessarily a Rights Foundationalist view. Law as Integrity does hold that justice—or an appeal to rights—is the dominant value at the level of constitutional law, but it understands those rights as developing through the political and legislative history of the United States. The third view we can contrast with Dualism is Historicism, or the view that constitutional change should be incremental and brought about by statesmen who can keep the change from being disruptive for the nation. On the one hand, Historicism is deeply skeptical of the People’s ability to understand what is best for society and of the People’s ability to figure out how to change the Constitution accordingly. On the other hand, Dualism holds that developments in American constitutional history tend to be more revolutionary than incremental, brought about by mass mobilization of the People themselves rather than by statesmen. To back up this view, Dualist Democracy points to three main “constitutional moments” in American history: the Founding, Reconstruction, and the New Deal. Each of these moments involved sweeping constitutional changes, and each saw the American people unify behind major changes and express its will more directly with respect to fundamental issues than it did during the periods between these moments. Paying attention to the politics that led to these moments gives us insight into the constitutional changes they introduced.

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© Mason Jenkins/shutterstock.com

The way Dualism understands these three constitutional moments, however, is at odds with the prevailing “professional narrative” of constitutional history. The professional narrative is an understanding of the Constitution, held by many legal practitioners, that buys into what Ackerman calls the “Bicentennial Myth” or the “Myth of Rediscovery.” This myth, focusing mostly on the Supreme Court, sees the three main constitutional moments as follows: Since the Founding ignored the Articles of Confederation and went in a new direction, the Founding was a substantively and procedurally original constitutional moment. Meanwhile, since Reconstruction Republicans followed the set amendment procedures in making their sweeping changes, Reconstruction is understood as substantively, but not procedurally, creative. Finally, the Bicentennial Myth holds that the New Deal marked a rediscovery of Founding values, so it was neither substantively nor procedurally original. The argument here is that the professional narrative is a skewed interpretation of our constitutional history that keeps us from seeing into the real meaning of our Constitution. Against this narrative, a perspective focusing on all of the major institutional players in constitutional politics—and not just the Court—offers us a very different picture of our constitutional history. For example, American history rarely shows the Supreme Court to be the dominant player in important constitutional moments. Instead, when our Constitution has changed, it has changed as a result of the democratic efforts of the People. If we focus on the major political movements of the People instead of focusing only on the Supreme Court’s decisions, we begin to see that we can make much more sense of our Constitution than we can under the professional narrative.

LECTURE ELEVEN

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FOR GREATER UNDERSTANDING

Questions
1. In “Dualist Democracy,” what are the two tracks for lawmaking in the U.S. legal system? 2. What is the prevailing “professional narrative” of constitutional history?

Suggested Reading
Ackerman, Bruce. We the People: Foundations. Cambridge, MA: Belknap Press, 1993.

Other Books of Interest
Ely, John. Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA: Harvard University Press, 1980.

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Lecture 12: Regime Perspective

The Suggested Reading for this lecture is Bruce Ackerman’s We the People: Foundations, chapters 3 and 4.

If we’re going to understand the Constitution properly, Ackerman’s argument goes, we need to understand it through a “regime perspective,” or a perspective focusing on our history of constitutional politics. When we take a regime perspective, we see that the professional narrative and the Bicentennial Myth are wrong about important facts in our constitutional history, including how the Congress actually employed very creative procedures in getting the Reconstruction amendments passed,1 how the New Deal innovations departed greatly from Founding values (rather than embodying their rediscovery),2 and how procedurally creative the New Deal was.3 Only after we get clear on facts like these can we understand how the Supreme Court operated during these periods. The first step in taking the regime perspective is to look closely at how the President, the Congress, and the Supreme Court operated with respect to each other during the period following the Founding and leading up to Reconstruction (or the “Early Republic”). In the process, it’s important to recognize how differently these branches operated with respect to each other compared to the ways they operate with respect to each other now. The biggest difference between the Early Republic and present-day America (or the “Modern Republic”) is the role of the Presidency. In the Early Republic, the Presidency was a relatively weak position: the President was not popularly elected (but was selected by the Electoral College), and the one tool the President did have—the veto—he almost never used. Another difference was that people in the Early Republic understood the Constitution as granting more power to the states than to the federal government. At that time, the state legislatures played a bigger role in constitutional politics than either the President or the Congress, given that they were (and still are) empowered to ratify constitutional amendments. And despite the efforts of Jefferson and Jackson to claim more power for the Presidency, the Supreme Court, which played a preservationist role almost from the start,4
1. One example is that many Southern states were told that they would not be readmitted into the United States (after the Civil War) if they did not approve the Fourteenth Amendment. 2. Most notably, the New Deal rejected the primary focus on property and contract rights present in the Founding conception of the Constitution. Also, the New Deal continued the power shift away from the states and toward the federal government that Reconstruction had begun, but took it much further and established a national activist government the Founding never envisioned. 3. The New Deal introduced constitutional changes in a way the United States had not seen before: through very strong presidential leadership, along with congressional and presidential pressure on the Supreme Court to change its understanding of many constitutional principles. 4. In Marbury v. Madison (1803), the Supreme Court claimed for itself the constitutional role of judicial review and very self-consciously set itself to protect the Constitution as the fundamental law enacted by the People, and to protect it against being undermined in normal politics.

LECTURE TWELVE

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wouldn’t allow the Presidency any more power than it was given at the Founding. The second step in taking the regime perspective is to move on to examine Reconstruction in exactly the same way. The process of ratifying the Fourteenth Amendment established that the federal government was to have power over the states. The three Reconstruction amendments also put new emphasis on individual rights against the states. In the period following ratification of these amendments (or the “Middle Republic”), while several attempts to strengthen the Presidency failed,5 Congress was dominant in constitutional politics, bringing forward four amendments on behalf of the People. The role of the Supreme Court, meanwhile, became much more complicated in the Middle Republic. No longer able to focus on just the Founding, the Justices of the Middle Republic found themselves having to make sense of the Reconstruction amendments against the background of the Founding. Justices in this period, according to the regime perspective, had to engage in a two-stage, multigenerational synthesis, determining first which aspects of the Founding were left untouched by Reconstruction, and then trying to figure out how to best understand the old and new parts as fitting into a coherent whole. Based on the way Justices in the Middle Republic handled this project, it seems that Justices deciding cases shortly after the amendments were ratified tended to interpret the new amendments more narrowly—or offered a more “particularistic” synthesis. A generation or two later, when new Justices came along who had no personal memory of the ratification process and after jurists and scholars had time to go back and forth about how best to interpret the whole Constitution, new parts and all, then the Supreme Court tended to develop a more “comprehensive” synthesis, treating the new amendments in the same way it treated older ones and arriving at broader understandings of the new developments. This progression between constitutional moments helps make sense of many decisions that the professional narrative struggles to explain and cannot justify. This move from particularistic to comprehensive synthesis Ackerman illustrates using an analogy to a train: Supreme Court Justices are standing on the back of the caboose of a train as it moves forward; and as a new constitutional moment erupts (like a mountain from volcanic activity) nearby, the mountain looms large and detailed in the Justices’ vision. But as the train moves away from those mountains, they recede from close view and begin to appear as a unified mountain range. Also, as new mountains erupt nearby (or as the train passes new mountains), the new ones seem particularly large and detailed to the Justices and also block some of the old mountains from view. As such, it’s understandable that the Justices would have difficulty seeing how these new mountains fit into the overall mountain range when those new ones are so close to them. At the same time, though, it’s also understandable how, over time, even the newest mountains blend into the range in the distance and the Justices then have a more comprehensive view.

5. Abraham Lincoln’s success on this front was undercut by his assassination. Subsequently, Andrew Johnson, Theodore Roosevelt, and Woodrow Wilson had moderate success on this front, but all also met with failures at the end of their terms that loomed larger than their successes.

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Though we will discuss this analogy further in the last two lectures, it is important to note a couple of key features of this analogy. First, the Justices always look backwards—a point consistent with the Court’s preservationist function. Second, the Justices are not in any way driving the train. This point supports the view that judges shouldn’t play politics and shouldn’t use their positions to drive democracy in one direction or the other. The challenge, then, is to show that this view of how judges reason is consistent with how judges have decided some of the most important, but also most controversial, cases. In the next lecture, I’ll do just that, and in the process show that what the Justices did in those cases wasn’t really controversial at all.

LECTURE TWELVE

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© Fritz Kocher/shutterstock.com

FOR GREATER UNDERSTANDING

Questions
1. What did the Supreme Court claim for itself in Marbury v. Madison? 2. Why would Justices interpret amendments more narrowly shortly after their ratification?

Suggested Reading
Ackerman, Bruce. We the People: Foundations. Cambridge, MA: Belknap Press, 1993.

Other Books of Interest
Berger, Raoul. Government by Judiciary. Cambridge, MA: Harvard University Press, 1977.

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Lecture 13: Interpretive Synthesis

The Suggested Reading for this lecture is Bruce Ackerman’s We the People: Foundations, chapter 5.

Under the “regime perspective” I outlined in the previous lecture, the focus of constitutional law will be on our country’s three big constitutional moments: the Founding, Reconstruction, and the New Deal. And as Justices from the Middle Republic—the period between Reconstruction and the New Deal—looked back to try to synthesize the innovations of the Reconstruction amendments with the surviving Founding values, Justices since the New Deal will also work to synthesize values from multiple periods. But Justices from the Modern, or most recent, Republic will have an even tougher job, since they’ll have to synthesize the views from three periods instead of just two: in some cases, this requires synthesizing Reconstruction values with those of the New Deal, while in others, it requires making sense of the New Deal in light of Founding values that survived later constitutional moments. In very general terms, however, the processes will be the same for Justices of the Middle and of the Modern Republic: soon after a given constitutional “moment,” Justices will naturally tend to incorporate the changes from that moment in a narrow or particularistic fashion. And the history of the Supreme Court supports this view: Justices right after Reconstruction tended to view the Fourteenth Amendment as applying just to issues of race, and Justices right after the New Deal tended to view the changes of the New Deal as applying just to economic and property rights issues. As the next generation of Justices comes along, they tend to read the importance of these moments differently, seeing the most recent changes in the same way they view those of earlier constitutional moments. Also, they have the benefit of a generation’s worth of debate over how the law should understand the most recent changes. As a result, this next generation tends to interpret the new values stemming from the last constitutional moment more broadly or comprehensively. Again, in the case of Reconstruction, it took a generation of debate and discussion before Justices began interpreting the Fourteenth Amendment more broadly, eventually reading it as applying the entire Bill of Rights to the states. After the New Deal, the development of the “interpretative synthesis” of the three constitutional moments in our history followed an especially interesting path. By allowing the federal government to tax individuals and take money from their paychecks to fund programs like Social Security and Unemployment Insurance, the Supreme Court during the New Deal effectively reduced the importance of property and contract rights within the Constitution. This change created something of a rights vacuum; and over time, the Supreme Court began to understand the rights that remained as more important and began to reinterpret them so that they would be more relevant to a post-New Deal America. In particular, Justices came to see the guarantees of the First Amendment as central; freedom of speech and association provide political 48

LECTURE THIRTEEN

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liberties that are key to citizens’ efforts to control a much larger, more intrusive federal government; and freedom of religion marks off an area of private liberty that is much more important within a constitutional system that no longer gives priority to property and contract rights. In general, the broader comprehensive synthesis that has occurred over the generations following the New Deal has filled the property rights vacuum by reinterpreting existing rights as more obviously political in their character or as rights of privacy against the modern welfare state. An example of the first way in which the Court filled the property rights vacuum is Brown v. Board of Education. Within the context of a welfare state, in which the federal government takes more of an activist role in taking care of people and providing for them (and in which individuals play less of a role in taking care of themselves), the Supreme Court eventually came to see part of the Constitution’s role to be to protect people from being treated unfairly within that welfare state or from not having equal or fair access to that welfare state. Like other social programs, the Court understood that education is very important and should be distributed equally to all. This understanding stems from a synthesis of Reconstruction values with the New Deal creation of the welfare state: equal protection of the laws takes on new meaning within the welfare state, and part of that new meaning is expressed in Brown, in which the Court argued that “separate but equal” is not really possible within a system of public education. An example of the second way in which the Court filled the property rights vacuum is the development of privacy rights through such cases as Griswold v. Connecticut 1 and, later, Roe v. Wade.2 Once the New Deal reduced the
1. Griswold v. Connecticut, 381 U.S. 479 (1965). 2. Roe v. Wade, 410 U.S. 113 (1973).

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importance of property and contract rights in favor of a larger and more intrusive welfare state, the Supreme Court eventually reinterpreted the Constitution as providing protections for individual citizens against the government. Since these protections could no longer focus on property or contract rights, the Court came to understand them as protecting other sorts of private behavior—eventually marking off “zones” of privacy into which the government could not intrude.3 And given how much the government had come to insert itself into the lives of individual citizens, this move not only makes sense, but it also reinterprets constitutional protections so that they have relevance for individuals in society today.
3. In Griswold, the Supreme Court, after considering a number of precedents mentioning a right to privacy, ruled that the First, Third, Fourth, Fifth, and Ninth Amendments mark off various areas of life—or zones—as private and protected (to some degree) from government intervention. To be more specific, the Court interpreted constitutional guarantees of free speech, freedom of religion, freedom over one’s personal effects and one’s home, freedom from self-incrimination, and unenumerated rights as coming together to extend protections to cover private decisions within marriage, including reproductive choices. Later in Roe, the Supreme Court considered Griswold as a precedent and ruled that the Fourteenth Amendment’s Due Process clause requires a state to demonstrate a “compelling state interest” before it could infringe upon one’s privacy with regard to reproductive choices.

LECTURE THIRTEEN

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FOR GREATER UNDERSTANDING

Questions
1. After the New Deal, what path did the development of the “interpretative synthesis” of the three constitutional moments in our history follow? 2. How is Brown v. Board of Education a good example of how the Supreme Court filled the property rights vacuum?

Suggested Reading
Ackerman, Bruce. We the People: Foundations. Cambridge, MA: Belknap Press, 1993.

Other Books of Interest
Graham, Hugh Davis. The Civil Rights Era: Origins and Development of National Policy, 1960–1972. Oxford: Oxford University Press, 1990.

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Lecture 14: Judicial Politics versus Interpretation

The Suggested Reading for this lecture is Bruce Ackerman’s We the People: Foundations, chapter 6.

If Ackerman is right that the Constitution is really about a higher track of democracy, then it seems perfectly reasonable to ask whether or not the Supreme Court sometimes plays politics and thereby takes onto itself the role of changing the Constitution (by something other than democratic means). This question seems especially relevant with respect to cases in which the Court seems to lead the way toward a new understanding of the Constitution. In the previous lecture, I discussed two such cases: Brown v. Board of Education and Griswold v. Connecticut. Since the Court articulated rights (to desegregated education and to privacy) in these cases that had not been recognized previously, many people view these cases as instances of judicial politics, cases in which the Court got out in front of the rest of the country and foisted its own moral or political agenda on the American people. Seen from this perspective, Justices ruled against desegregated schools not because they were actually unconstitutional, but because the Justices thought segregation was immoral, even though the People had not decisively rejected segregation. Similarly, Justices “found” the right to privacy in the Constitution not because the Constitution actually protected (or had always protected) privacy, but because those Justices wanted the Constitution to protect privacy. On this view, the Court acted on its own and against the expressed wishes of the People, instead of playing its traditional preservationist role. The problem, though, is that this view ignores how hard the Supreme Court worked in its decisions to provide careful and thoughtful interpretations of the constitutional issues at play in these cases. If you read the actual decisions, it’s very hard to believe that the Justices were merely playing politics. For example, the majority opinion in Brown went to great lengths to uphold Plessy v. Ferguson and to distinguish Brown from Plessy by focusing on differences between private businesses and public education. If the Court were just playing politics, then why not just overrule Plessy ?1 For another example, the Justices who wrote dissenting opinions in Griswold argued against the majority’s articulation of a right to privacy by offering competing interpretations of the Constitution in light of the New Deal.2 If the majority of Justices were just playing politics, then why did the dissenters challenge the majority’s interpretation on its merits, rather than simply accusing them of making stuff up?

LECTURE FOURTEEN

1. It’s telling that most people believe that the Supreme Court actually overruled Plessy and rejected the “separate but equal” doctrine in the Brown decision. 2. They argued that the New Deal did not just reject the Constitution’s earlier emphasis on property and contract rights, but that it rejected any restrictions the Constitution may have placed on the federal government’s role in administering an activist welfare state.

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The most obvious answer to both of the questions above is that the Justices wouldn’t do those things if they were just playing politics, which gives us good reason to think that they weren’t actually playing politics. In fact, these examples indicate very strongly that the Justices were working through difficult interpretive problems in deciding these two cases. By saying this, I don’t mean to imply, of course, that Justices never play politics or that Justices never disguise their political views as constitutional interpretations. But with no more evidence of judicial fraud than we have in these cases, it’s hard to make the case that the Court crafted careful constitutional interpretations just to pull the wool over the People’s eyes. Now, if we take a different approach and try to understand Brown and Griswold as examples of interpretative synthesis (as Ackerman portrays them and as I portrayed them—albeit briefly—in the previous lecture), these two cases represent key points at which the Supreme Court was forced by the facts of particular cases to go further than it had before to explore the full implications of the latest constitutional “moment” on the whole Constitution. And in these two cases, after decades of narrow, particularistic interpretations, the Supreme Court found itself faced with finding new meaning in constitutional protections whose old meanings had been undermined, but not destroyed, by the last constitutional moment. From this perspective, Brown and Griswold both represent brilliant attempts (and largely successful ones) to interpret and make sense of a Constitution whose full meaning was, at the time, undefined and unclear. But more importantly, these two cases represent pivotal junctures in the Court’s attempts at preserving the protections We the People had enshrined in higher law: In light of the creation of an activist welfare state after the New Deal, the Court preserved the “equal protection of the laws” (which had been defined in terms of property and contract) by reinterpreting it so as to provide equal protection within government programs (like education). And in light of that activist state’s increasing intrusion into various aspects of individual life, the Court preserved the individual rights the Founders created against undue government interference by reinterpreting them to mark off zones of privacy into which the activist state could not intrude. In the end, though, how different is Ackerman’s interpretive synthesis from Dworkin’s Law as Integrity? In some ways, I think they’re very similar: both focus on principles in constitutional law and both focus funda© Michael D. Brown/shutterstock.com

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mentally on interpreting and reinterpreting those principles so that they work together best as an integral whole. But one key difference is that Law as Integrity tries to portray the law in its best possible light in a way that is somewhat detached from the democratic processes that created it, especially when compared to the Dualist’s approach. As a result, Dworkin understands the Supreme Court to be concerned with protecting rights— expressed in legal sources—instead of with preserving higher law against erosion in normal politics. There isn’t a huge difference between these two, and in many cases they would lead to the same conclusions. But it’s not clear how Dworkin would expect Justices to interpret the law immediately following a constitutional “moment.” Given his focus on integrity, there’s reason to think that Dworkin might expect something more like a comprehensive synthesis right from the start, rather than the particularistic synthesis Ackerman points to in our history. Whether or not such an expectation is reasonable, however, is another question, but a question that drives home a key point in comparing Ackerman’s view to Dworkin’s: Ackerman is arguing that judges reason a certain way and that we understand what they do best when we understand the way they actually do reason, while Dworkin is arguing that Judges ought to decide cases a certain way.

LECTURE FOURTEEN

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FOR GREATER UNDERSTANDING

Questions
1. How do Brown v. Board of Education and Griswold v. Connecticut represent attempts to interpret the Constitution? 2. How is Ackerman’s interpretive synthesis different from Dworkin’s Law as Integrity? How is it similar?

Suggested Reading
Ackerman, Bruce. We the People: Foundations. Cambridge, MA: Belknap Press, 1993.

Other Books of Interest
Ackerman, Bruce. We the People: Transformations. Cambridge, MA: Belknap Press, 2000. Perry, Michael. The Constitution in the Courts: Law or Politics? Oxford: Oxford University Press, 1994.

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COURSE MATERIALS

Suggested Readings: Ackerman, Bruce. We the People: Foundations. Cambridge, MA: Belknap Press, 1993. Dworkin, Ronald. Law’s Empire. New ed. Oxford: Hart Publishing, 2003. Frank, Jerome. “Legal Realism.” Philosophy of Law. 8th ed. Pp. 125–127. Eds. Joel Feinberg and Hyman Gross. Belmont, WA: Wadsworth Publishing Company, 2007. Hart, H.L.A. The Concept of Law. 2nd ed. Oxford: Oxford University Press, 1997. ———. “Positivism and the Separation of Law and Morals.” Harvard Law Review. Vol. 71, p. 593. Cambridge, MA: Harvard Law Review Association, 1958. Holmes, Oliver Wendell. “The Path of the Law.” Vol. 10. Harvard Law Review, p. 457, 1897.

Recorded Books also offers these other courses on American law by renowned scholars Alan Dershowitz, Lawrence M. Friedman, and Kermit L. Hall.
Fundamental Cases: The Twentieth-Century Courtroom Battles That Changed Our Nation Professor Alan M. Dershowitz, Harvard Law School The courtroom trial has fascinated human beings from the beginning of recorded history. Trials are theater, trials are history, and the great trials of the twentieth century and beyond provide a unique window into American history and the sense of America’s enduring commitment to law.

The American Legal Experience Professor Lawrence M. Friedman, Stanford University The legal system in America is the basis of freedom as we know it today. The system is based on the common law of England, but it has grown, developed, and changed over the years. American law has been a critical factor in American life since colonial times. It has played a role in shaping society, but society—the structure, culture, economy, and politics of the country—has decisively shaped the law.

COURSE MATERIALS

The Law of the Land: A History of the Supreme Court Professor Kermit L. Hall, Utah State University This course explores the court as a living, breathing institution—one subject to the press of public opinion yet removed from its direct impact—one whose members have as often as not been vilified or praised. Listeners will come to know the court through a thorough study of its most significant decisions. The individual lectures explore both the personalities and legal reasoning behind, as well as the political impact of, these landmark cases.

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Other Books of Interest: Ackerman, Bruce. We The People: Transformations. Cambridge, MA: Belknap Press, 2000. Austin, John. The Providence of Jurisprudence Determined. New ed. Lecture I, pp. 18–37; Lecture VI, pp. 164–293. Cambridge: Cambridge University Press, 1995. Berger, Raoul. Government by Judiciary. Cambridge, MA: Harvard University Press, 1977. Coleman, Jules L. “Negative and Positive Positivism.” Chicago: The Journal of Legal Studies, vol. 11, p. 139, 1982. Dworkin, Ronald. A Matter of Principle. Cambridge, MA: Harvard University Press, 1986. ———. Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1978. Ely, John. Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA: Harvard University Press, 1980. Feinberg, Joel. Problems at the Roots of Law: Essays in Legal and Political Theory. Oxford: Oxford University Press, 1988. Frank, Jerome. Law and the Modern Mind. Reprint. Piscataway, NJ: Transaction Publishers, 2008. Fuller, Lon L. The Morality of Law. Rev. ed. New Haven, CT: Yale University Press, 1969. Graham, Hugh Davis. The Civil Rights Era: Origins and Development of National Policy, 1960–1972. Oxford: Oxford University Press, 1990. Greenawalt, Kent. Legislation: Statutory Interpretation: 20 Questions. New York: Foundation Press, 1999. Hart, H.L.A. Law, Liberty, and Morality. Oxford: Oxford University Press, 1963. Holmes, Oliver Wendell. The Common Law. New York: Dover Publications, 1991. Leiter, Brian. “American Legal Realism.” The Blackwell Guide to Philosophy of Law and Legal Theory. Pp. 50–66. Eds. W. Edmundson and M. Golding. Oxford: Blackwell, 2003. Perry, Michael. The Constitution in the Courts: Law or Politics? Oxford: Oxford University Press, 1994. Postema, Gerald. “Coordination and Convention at the Foundations of Law,” Chicago: The Journal of Legal Studies, vol. 11, p. 165, 1982. Raz, Joseph. The Concept of a Legal System: An Introduction to the Theory of Legal Systems. 2nd ed. Oxford: Clarendon Press, 1980. Scalia, Antonin. A Matter of Interpretation. Princeton, NJ: Princeton University Press, 1997. Tribe, Laurence H. American Constitutional Law. 3rd ed. Emeryville, CA: West Publishing Company, 1999. Waluchow, W.J. Inclusive Legal Positivism. Oxford: Clarendon Press, 1994. These books are available online through www.modernscholar.com or by calling Recorded Books at 1-800-636-3399.

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