FALLON 1987 Constructivist Coherence Theory of Constitutional Interpretation

Citation: 100 Harv. L. Rev. 1189 1986-1987

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VOLUME 100 APRIL 1987 NUMBER 6

HARVARD LAW REVIEW_

A CONSTRUCTIVIST COHERENCE THEORY OFCONSTITUTIONAL INTERPRETATION

Richard H. Fallon, Jr.*

Judges and constitutional lawyers generally acknowledge that a variety ofdifferent kinds of argument have a legitimate place in constitutional inter-pretation and debate. Among the kinds of argument commonly invoked arearguments based on the plain or necessary meaning of the constitutional text;arguments concerning the framers' intent; arguments of "constitutional the-ory"; arguments based on judicial precedent; and arguments asserting moralor policy values. In this Article, Professor Fallon address what he terms"the commensurability problem": the important question of how the differentkinds of argument fit together or weigh against each other in a single,presumptively coherent, constitutional calculus. Rejecting the solutions tothe commensurability problem that are latent in leading constitutional the-ories, Professor Fallon seeks a solution in an interpretive account of theimplicit normative structure of our actual constitutional practice. His "con-structivist coherence theory" holds that the various categories of constitu-tional argument, though distinct, are sufficiently interconnected so that itusually is possible for a constitutional interpreter to reach constructivistcoherence - a reflective equilibrium in which arguments of all five types,following a process of reciprocal influence and occasional reassessment, pointtoward or at least are not inconsistent with a single result. In those fewinstances in which coherence cannot be achieved, Professor Fallon arguesthat the various types of argument must be ranked hierarchically.

INTRODUCTION

C ONSTITUTIONAL law has a commensurability problem. Theproblem arises from the variety of kinds of argument that now

are almost universally accepted as legitimate in constitutional debateand interpretation. With only a few dissenters,1 most judges, lawyers,and commentators recognize the relevance of at least five kinds ofconstitutional argument: arguments from the plain, necessary, or his-torical meaning of the constitutional text; arguments about the intentof the framers; arguments of constitutional theory that reason fromthe hypothesized purposes that best explain either particular consti-

Assistant Professor of Law, Harvard University.See infra pp. 1209-23 (discussing "privileged factor" theories).

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tutional provisions or the constitutional text as a whole; argumentsbased on judicial precedent; and value arguments that assert claimsabout justice or social policy.

The commensurability problem is to show how arguments of allof these various kinds fit together in a single, coherent constitutionalcalculus. A slightly caricatured example illustrates the challenge. Be-thel School District No. 403 v. Fraser2 presented the question ofwhether a high school student's speech to a school assembly, whichconsisted almost entirely of sexual innuendo, enjoyed constitutionalprotection under the first and fourteenth amendments. 3 Without prob-ing the hypothetical thought process too deeply, it is possible to imag-ine a Supreme Court justice concluding, provisionally, that the strong-est argument based directly on the constitutional text suggested thatthe speech ought to be protected: when the first amendment, whichis applicable to the states through the fourteenth amendment, saysthat "no law" shall abridge the freedom of speech, its literal proscrip-tion should be taken as absolute. 4 Thus, if the textual language alonewere determinative, the student's speech would have received consti-tutional protection.

Turning to arguments about the framers' intent, however, ourhypothetical justice might have found that the student's remarks werenot the sort of speech that the framers were concerned about protect-ing. Although "we cannot say with certainty precisely what effect theframers of the Bill of Rights intended the first amendment to havewith respect to freedom of expression," she might have concluded,"we can say that at most they intended it to prohibit any system ofprior restraint and to modify the* common law of seditious libel."

5 If

the framers' intent independently controlled the outcome, the justicemight therefore have reasoned, the student's speech could be punishedwithout offending the Constitution.

Plausible arguments of constitutional theory would support eitheroutcome. Suppose, however, that our imagined justice was mostimpressed by an argument, based on the federal structure of American.government, that called for deference to state authority in cases wherethe state had not tried to thwart the communication of a particularmessage. 6 This conclusion would have accorded with that reachedconcerning the framers' intent: the speech should not be protected.

2 io6 S. Ct. 3159 (1986).

3 See id. at 3162-63.4 See H. BLACK, A CONSTITUTIONAL FAITH 45 (1968).

5 Perry, Interpretivism, Freedom of Expression, and Equal Protection, 42 OHIO ST. L.J.261, 287 (i98i) (footnote omitted). See generally L. LEVY, LEGACY OF SUPPRESSION (i960).

6 Cf. J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEw IO5-6 (1980)

(arguing that "strict review" of restrictions on free speech is not always appropriate when thegovernment is not trying to stifle communication of a particular message).

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But it would have diverged from the provisional conclusion derivedfrom the most natural reading of the constitutional language.

Arguments based on precedent might have added to the emergingpattern of disparity. Supreme Court authority establishes that stu-dents do not shed their first amendment rights at the schoolhousedoor. 7 Precedent also indicates that vulgar speech is protected in avariety of settings.8 For these reasons a justice might have concludedthat the best arguments of precedent demonstrated that the speechmerited constitutional protection.

Moral and policy arguments would have remained for considera-tion. If we suppose that the imagined justice determined that as apolicy matter, the states should be allowed not only to preserve de-corum but also to teach decency in the public schools, 9 her overallassessment of the various arguments would have reflected a sharpdivision. Arguments in two categories - those involving the plainmeaning of the constitutional language and those based on precedent- would have indicated that the speech deserved constitutional pro-tection. But arguments of three other types - based on the framers'intent, constitutional theory, and considerations of policy or justice -would have pointed to the contrary conclusion. What, in these cir-cumstances, ought the justice to have done? Should arguments in oneor more of the categories necessarily have taken precedence? Wassome sort of balancing required and, if so, what sort? Or was theproblem of the best arguments in different categories yielding oppositeresults somehow false or illusory?

These questions, which define what I shall call the "commensur-ability problem," are among the most important in constitutionallaw.' 0 Indeed, it is impossible to reason or argue about the correct

7 See Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969).8 See, e.g., Cohen v. California, 403 U.S. 15 (197).9 See Bethel School Dist. v. Fraser, io6 S.Ct. 3159, 3165 (1986) (finding that "it is a highly

appropriate function of public school education to prohibit the use of vulgar and offensive termsin public discourse"); Board of Educ. v. Pico, 457 U.S. 853, 885, 889-91 (1982) (Burger, C.J.,

dissenting).10 The usefulness of my characterization of this problem as one of "commensurability" does

not depend on the merits of contending positions in debates in the philosophy of science about

the possibility of there being "incommensurable" scientific "theories," "paradigms," "frameworks,"or "discourses." See, e.g., R. BERNSTEIN, BEYOND OBJECTIVISM AND RELATIVISM 51-oS(1983); T. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (2d ed. 1970); R. RORTY,CONSEQUENCES OF PRAGMATISM 5-17 (982). In the context of that debate, incommensurabilityis a relation between two or more theories or discourses; the relation obtains when two theoriesor discourses cannot be translated into each other without loss of meaning and disputes cannotbe resolved by reference to shared criteria. See T. KUHN, supra, at 198-204; R. RORTY,PHILOSOPHY AND THE MIRROR OF NATURE 322-33 (1979). I make limited use of a relatedincommensurability of particular conceptions of what certain kinds of constitutional argumentought to be about. See infra notes 226-27 and accompanying text. Outside of this narrowcontext, however, my use of the term "commensurability" generally follows ordinary rather than

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decision in hard cases - cases made hard by the actual or apparenttendency of different kinds of arguments to point to divergent results- without a theory of how different kinds of constitutional argumentappropriately contribute to a single decision. Yet, astonishingly, thecommensurability problem has received little explicit attention eitherin judicial opinions or in the scholarly constitutional literature.

This Article on the commensurability problem has three relatedobjectives. The first is to illuminate the nature of the problem as itcurrently confronts lawyers and judges. In order to do so, I shallfurther develop the typology of constitutional argument to which Ihave already appealed. I shall also examine the solutions to thecommensurability problem that are implicit in several well knownconstitutional theories and in an intuitively plausible rival.

My second objective is to expound and commend a particularapproach to the commensurability problem in particular and to issuesof constitutional theory in general. A familiar distinction sharplydifferentiates two kinds of legal theories: descriptive and normative.Rejecting that dichotomy, I shall argue in favor of what ProfessorRonald Dworkin has recently termed an "interpretive" approach thathas both a descriptive and a normative aspect."

My third and final objective is to propose an interpretive consti-tutional theory to explain how the various kinds of constitutionalargument combine or weigh against each other within the implicitnorms of our constitutional practice. 12 The "constructivist coherence

any specialized or technical usage. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY

456 (198i) (defining "commensurability" as "the quality or state of being commensurable" and"commensurable" as "having a common measure").

1 See R. DWORKIN, LAW'S EMPIRE 4-14, 45-86 (1986). Roughly speaking, an "interpretive"

approach to constitutional theory embodies four basic assumptions. First, constitutional inter-pretation is a "practice" with an internal normative structure. See infra pp. 1232-37. Second,to participate in the practice requires conformity to the practice's implicit rules or norms. Seeinfra notes 211-13 and accompanying text. Third, "[viery often, perhaps even typically, theraw behavioral data of the practice - what people do in what circumstances - will underde-termine" any purely descriptive or positive theory of the practice's implicit norms or the valuesor purposes that give the practice its nature. R. DWORKIN, supra, at 52. The data, in otherwords, will be consistent with "different and competing" accounts of the practice's rules, nature,or purposes. Id. Fourth, "[i]f the raw data do not discriminate between these competinginterpretations, each interpreter's choice must reflect his view of which interpretation proposesthe most value for the practice - which one shows it in the better light, all things considered."Id. at 52-53. For a fuller account, and for an explanation of where I depart from Dworkin aswell as where I follow him, see pages 1231-37 below.

12 Although my claims in this Article about the practice of constitutional interpretation will

often be framed in very general terms, several qualifications are necessary. As in most writingabout constitutional theory, the bulk of my arguments and assertions takes as its implicitparadigm decisionmaking, advocacy, and argumentation in the Supreme Court and in lowercourt cases in which there is no Supreme Court precedent closely on point. Although the resultmay be a theory that is excessively Supreme Court focused, this approach has advantages. Atheory that takes the Supreme Court as its paradigmatic decisionmaker is able to address directly

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theory" that I offer has two main aspects. 13 The first asserts that theimplicit norms of our constitutional practice call for a constitutionalinterpreter to assess and'reassess the arguments in the various cate-gories in an effort to understand each of the relevant factors as pre-scribing the same result. The desirability and plausibility of thisstrategy, and its implied claim that coherence of this kind is mostoften attainable, may seem counterintuitive. But within our legalculture, it is the rare judicial opinion, the anomalous brief, the unusualscholarly analysis that describes the relevant kinds of arguments aspointing in different directions. Typically, legal arguments - includ-ing those of judicial and even Supreme Court opinions - find thebest arguments in all of the categories to support, or at least not tobe inconsistent with, a single result. 14 Nor, I shall argue, does thisfamiliar alignment of arguments reflect sheer intellectual dishonestyor rhetorical or argumentative excess. The various kinds of consti-tutional argument are substantially interrelated and interdependent.Reciprocal influences among them make it possible most of the timeto achieve constructivist coherence. The role of value arguments isespecially important in this respect. I shall be particularly concernedwith showing how value arguments infuse and inform the argumentsthat are advanced within other categories.

The second element of my theory comes into play only when theeffort to achieve coherence does not succeed. In such cases, thecategories of argument are assigned a hierarchical order in which thehighest ranked factor clearly requiring an outcome prevails over lowerranked factors. In particular, I shall argue, the implicit norms of our

the central question of how our system assumes that constitutional issues are and ought to besettled by the one authority clearly entitled to decide every case on the basis of its ownunderstanding of highest constitutional principle. Similarly with respect to legal advocacy, atheory developed around Supreme Court argumentation answers the revealing question of howour practice assumes that lawyers ought to argue constitutional issues when questions of highestconstitutional principle are most clearly open for decision.

If the Supreme Court focus is distorting, it may be particularly so with respect to the roleplayed in our constitutional practice by the law school professoriat. Undoubtedly, legal scholarshave an important part in our constitutional practice and, more than judges or practicinglawyers, they may assume a relatively distinctive and detached role. Even here, however, thevast bulk of legal scholarship tends to accept and to argue within the implicit and explicitstandards established by Supreme Court practice.

13 For a discussion of the significance of the name "constructivist coherence theory," see note230 below.

14 This is not to say that legal arguments always, or even typically, refer explicitly to all ofthe factors that sometimes are recognized as relevant. In some cases, one kind of argument isemphasized, while others are omitted entirely. Even when this occurs, however, lawyers, judges,and even Supreme Court justices rarely acknowledge that some relevant factor calls for a resultdifferent from that which is being reached. M'or is it common for dissenting opinions to arguethat the majority has erred by ignoring a relevant factor. Even when factors of general relevanceare not referred to explicitly, it thus seems to be assumed that the conclusions to which theywould point would at least be not inconsistent with the result reached.

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constitutional practice accord the foremost authority to argumentsfrom text, followed, in descending order, by arguments concerning theframers' intent, constitutional theory, precedent, and moral and policyvalues. But a caution is in order. For reasons to be explored later,the highest ranked categories are those in which any particular ar-gument, in hard cases, is least likely to prove uniquely persuasive ordeterminate. Arguments from text and from the framers' intent there-fore possess less independent influence than their hierarchical statussuggests. By contrast, although value arguments occupy the lowestrung in the hierarchy, they are likely to exert a very powerful influenceon conclusions within other categories in a successful effort to reachcoherence.

A brief outline of the structure of the argument may prove helpful.Part I offers a more complete account of the five types of argumentthat generally predominate in constitutional debate. Part I then teststhe adequacy of several leading constitutional theories and of a plau-sible rival. Part III explains and defends the interpretive approachfrom which I devise my answer to the commensurability problem.After an introduction to my proposed constructivist coherence theoryin Part IV, Part V provides a detailed explanation of how the theoryworks with respect to each of the kinds of constitutional argument.Finally, Part VI demonstrates my theory's capacity to explain thedebate within and surrounding some controversial cases in constitu-tional law.

I. A TYPOLOGY OF CONSTITUTIONAL ARGUMENT

The arguments offered by constitutional lawyers, and accepted asproviding grounds that are at least relevant to constitutional decision-making, are highly diverse. But judicial opinions, briefs, and manyscholarly articles tend to rely on five types of authority and argument,several of which are defined with sufficient looseness so as not toexclude arguments that others might classify differently.' 5 The prin-cipal purpose of this Part is to develop a typology of constitutionalargument and to establish that each category has a familiar andaccepted place in our constitutional practice. In addition, some sig-nificant disputes about the force of arguments within the categoriesare pointed out. Despite flagging the issue at several points, I do notattempt in this Part to give a fully developed account of the degreeof autonomy of, or interdependence among, the five categories ofargument that I identify. The question of autonomy later becomes

Is For other typologies of constitutional argument, see P. BOBBITT, CONSTITUTIONAL FATEI-9ig (i982), and Moore, A Natural Law Theory of Interpretation, 58 S. CAL. L. REV. 279(1985).

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crucial, both to my own theory and to my criticisms of those of others.But the issue can fairly be postponed. Although the categories dosometimes blur or otherwise depend on one another, it would be aplain if familiar error to suppose that "unless a distinction can bemade rigorous and precise it isn't really a distinction at all."

' 16

A. Arguments from Text

Arguments from text play a universally accepted role in constitu-tional debate. 17 If there is any surprise, it is how seldom the text isrelied on directly, in comparison with arguments based on historicalintent, precedent, and social policy or moral principle.' 8 But perhapsthis situation only emphasizes the text's importance. The text, andits plain language, are taken for granted. Where the text speaksclearly and unambiguously - for example, when it says that thePresident must be at least thirty-five years old - its plain meaning isdispositive. 19 Where the text is ambiguous or vague, other sourcesare consulted as guides to textual meaning.

If this account is accurate - as I believe that generally it isthen it will be helpful to recognize an important distinction betweenarguments about the text and arguments from the text. In one sense,all constitutional arguments - including, for example, argumentsconcerning precedent and the intent of the framers - are about thetext and what it should be held to mean. It is, after all, a constitutionwe are interpreting. From arguments that are merely about the mean-ing of the text, we can distinguish arguments from the text: argumentsthat purport to resolve a question by direct appeal to the Constitution'splain language. These are arguments that the plain language of theConstitution either requires or forbids a certain conclusion, irrespec-tive of what might be said about that conclusion on other grounds. 20

16 Searle, The World Turned Upside Down, N.Y. REv. BOOKS, Oct. 27, 1983, at 74, 78.17 See, e.g., Richardson v. Ramirez, 418 U.S. 24, 54-55 (1974); United States v. Butler, 297

U.S. 1, 62-64 (1936); Cohens v. Virginia, i9 U.S. (6 Wheat.) 264, 381 (1821) (holding that"authoritative language of the American people" must be respected); P. BOBBITT, supra note 15,at 24-28; Moore, supra note i5, at 288-338; Perry, The Authority of Text, Tradition and Reason:A Theory of Constitutional "Interpretation," 58 S. CAL. L. REV. 551, 554-55 (985); Schauer,An Essay on Constitutional Language, 29 UCLA L. REv. 797 (1979).

18 See, e.g., Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L. REv.204, 234 (198o) (arguing that explicit reliance on the text has played a small role in comparisonwith elaboration of judicial precedents); Grey, Do We Have an Unwritten Constitution?, 27STAN. L. REv. 703, 707-08 (1975) ("In the important cases, reference to and analysis of theconstitutional text plays a minor role."); Jones, The Brooding Omnipresence of ConstitutionalLaw, 4 VT. L. REv. 1, 28 (1979) (noting that as the text "gets older and interpretive precedentsaccumulate, the focus of professional and judicial attention tends to shift from the text andhistory to judicial precedents").

19 But see Peller, The Metaphysics of American Law, 73 CALIF. L. REv. 1151, 1174 (x985).20 An example may clarify the distinction. The first amendment provides that "Congress

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One reason we see relatively few arguments from the text is thatthe language of the Constitution, considered as a factor independentfrom the other kinds of argument familiar in constitutional debate,resolves so few hard questions. 21 Nonetheless, arguments from textcan fulfill three functions. Occasionally, an argument from text willrequire a unique conclusion - for example, that the President mustbe at least thirty-five years old.2 2 More commonly, arguments fromthe text achieve the somewhat weaker but nontrivial result of exclud-ing one or more positions that might be argued for on nontextualgrounds. 23 Thus, although the text of the eighth amendment may nottell us precisely what "cruel and unusual punishments" are, 24 thelanguage does require that the amendment's prohibition apply only toactions that can plausibly be described as "punishments." 2 5 Finally,among the meanings that are not excluded by arguments from text, anarrowly text-focused reading will sometimes yield the conclusion thatsome are more plausible than others.

In talking about "arguments from text," the "meaning" of the text,and even its "plain meaning," I do not deny that any attribution of

shall make no law... abridging the freedom of speech." U.S. CONST. amend. I. In decidingfirst amendment cases, Justice Hugo Black often emphasized "no law" and argued that thislanguage established the unconstitutionality of any statute punishing speech. J. ELY, supra note6, at 1O5; see H. BLACK, supra note 4, at 45. His was an argument from, as well as about,the text. Justice Harlan, on the other hand, typically espoused a methodology in which hebalanced competing arguments to determine what rights existed. Rejecting Justice Black'sargument from text as unpersuasive, Justice Harlan found that the plain language of the textleft open a range of possible meanings, with the choice among them appropriately determinedby other factors. See, e.g., Konigsberg v. State Bar, 366 U.S. 36, 49 (g61) (rejecting "the viewthat freedom of speech and association, as protected by the First and Fourteenth Amendments,are 'absolutes' . . . in the sense that the scope of that protection must be gathered solely froma literal reading of the First Amendment" (citation omitted)).

21 The first amendment again provides an apt example. Even if read in wholly literal terms,the language does not forbid abridging all speech, but only "the freedom of speech." See A.MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 21 (ig6o).It is by no means obvious what "the freedom of speech" encompasses. Cf. Konigsberg, 366 U.S.at 49 & n.io (noting that an "absolutist" view that the first amendment protects all speech"cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity,perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, andthe like").

22 But see Peller, supra note ig, at 1174.23 See Schauer, supra note 17, at 802-12, 824-31. Although I cannot argue the point here,

I acknowledge that certain post-structuralist, deconstructionist writers would regard as conten-tious the claim that the range of possible meanings of any text is significantly constrained. See,e.g., Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997, ioo6-07 (1985); Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1, 9-25(1984).

24 U.S. CONST. amend. VIII.2S Some incidents cannot be so described. Cf. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979)

(relying in part on an argument from the text that the government's infliction of harm couldnot be "punishment" in the constitutional sense unless it occurred subsequent to criminal con-viction); Ingraham v. Wright, 430 U.S. 651, 664 (1977) (same).

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meaning requires a reader as well as a text, or that readers inevitablywill be infused with, and thus have their interpretations influenced,if not determined, by assumptions, conventions, and morality.

26 I

also assume that the reader, even in assessing arguments about "plainmeaning," will understand that she is reading a constitutional text,which implies that the language is situated in an interpretive traditionand must be read with at least a tacit awareness of the range ofextratextual concerns that constitutional interpretation conventionallytakes into account. 27 Nevertheless, the labeling of "arguments fromtext" as a distinct category of argument presupposes that it is possibleto read the Constitution with more or less of a narrowly textualfocus. 2 8

One further complication needs discussion. Beneath the generalagreement that arguments from text are legitimate and important inthe practice of cons itutional interpretation lies a significant distinctionand source of disagreement. There are at least two possible concep-tions of the nature of arguments from text. One is "originalist": 29 todetermine the meaning of the text, we must inquire into what it meantat the time of its ratification. 30 From another view, however, it is theessence of arguments from text that they appeal directly to contem-

26 There is a raging debate about the precise characterizations of the elements that lead

particular interpreters to reach particular conclusions at particular times. Among the leadingcontributions to the philosophical debate are H. GADAMER, TRUTH AND METHOD (1982); E.HIRSCH, VALIDITY IN INTERPRETATION (1967); and S. FISH, Is THERE A TEXT IN THIS CLASS?THE AUTHORITY OF INTERPRETIVE COMMUNITIES (i98o). For an intellectually accessible in-troduction to this literature, see Hoy, Interpreting the Constitution: Hermeneutical and Post-structuralist Perspectives, 58 S. CAL. L. REV. 135 (1985). Important and controversial contri-butions to the legal literature include R. DWORKIN, cited in note ii above; R. DWORIN, AMATTER OF PRINCIPLE 146-76 (1985); Brest, Interpretation and Interest, 34 STAN. L. REV.765, 771 (1982); Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 97HARV. L. REV. 4 (1983); Fish, Fish v. Fiss, 36 STAN. L. REV. 1325 (1984); Fish, Working onthe Chain Gang: Interpretation in Law and Literature, 6o TEX. L. REV. 551 (1982) [hereinafterChain Gang]; Fiss, Comment, Conventionalism, 58 S. CAL. L. REv. 177 (1985); Fiss, Objectivityand Interpretation, 34 STAN. L. REV. 739 (1982); Levinson, Law as Literature, 6o TEX. L.REV. 373 (1982); and White, Law as Language: Reading Law and Reading Literature, 60 TEX.L. REv. 415 (1982).

27 See Brest, supra note 18, at 206; Fish, Fiss v. Fish, supra note 26, at x335-36.28 See Moore, supra note 15, at 320-2I.29 For a fuller discussion of "originalism" as a fully developed constitutional theory, see pages

1211-14 below.30 See, e.g., South Carolina v. United States, 199 U.S. 437, 448 (1905) ("The Constitution

is a written instrument. As such, its meaning does not alter. That which it meant when adoptedit means now."); T. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST

UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 55 (Da Capo Pressed. 1972) (ist ed. 1868) ("The meaning of the Constitution is fixed when it is adopted, and it isnot different at any subsequent time when a court has occasion to pass upon it."); Brest, supranote IS, at 208-09; Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REv. 353, 373-77(i98i); Munzer & Nickel, Does the Constitution Mean What it Has Always Meant?, 77 COLUM.L. REV. 1029, 1043-44 (1977).

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porary meanings. 3 1 In developing a typology of constitutional argu-ment, it is enough to recognize that both types of arguments from thetext can and do get made. Consideration of how these competingclaims get resolved must await later parts of this Article.

B. Arguments About the Framers' Intent

Searches for the meaning of a constitutional provision frequentlyinvolve inquiries into the intent of the framers and ratifiers. 3 2 Con-troversy abounds concerning the weight that intent ought to have.Although "interpretivists" view the intent of the framers as control-ling,33 most other constitutional lawyers regard intent as entitled toonly some, not very clearly specified, weight. 34 Moreover, severalimportant scholars have recently argued that the intent of the framersgenerally has no justifiable place in constitutional argument. 35 Butthis form of nonintentionalism is more plausibly viewed as a prescrip-tive proposal than as an account of existing practice. It is relativelyuncontroversial that the Supreme Court regards the framers' intent asan important factor in constitutional adjudication.

36

Notoriously, searches for intent divide into several types. 3 7 Onehelpful division distinguishes between "specific" or "concrete" and

31 See P. BOBBITT, supra note I, at 25-26; Perry, supra note 17, at 564-65.32 See, e.g., Ford v. Wainwright, io6 S. Ct. 2595, 2600-02 (1986); Marsh v. Chambers, 463

U.S. 783, 788 (x983); P. BOBBITT, supra note 15, at 9-24; Monaghan, supra note 30, at 375-

79.33 See infra pp. 1209-17.

34 See, e.g., Brest, supra note 18, at 224, 229-34; Perry, supra note 17, at 569-70.35 See R. DwoRKIN, supra note ii, at 359-81; Moore, supra note I5, at 338-58; Simon,

The Authority of the Framers of the Constitution: Can Originalist Interpretation Be Justified?,73 CALIF. L. REV. 1482 (1985); see also Sandalow, Constitutional Interpretation, 79 MICH. L.REv. 1033, io62-64 (i981) (arguing that although there has been little incentive to develop aninterpretive framework justifying departures from the framers' intentions, it is mistaken to thinkthat the framers' intentions and expectations furnish even a "core" of constitutional meaningthat must be respected).

36 See cases cited supra note 32. To deny this assertion, it would be necessary to adopt a

thoroughly "realist" attitude toward arguments from the framers' intent. On this interpretation,even though the Supreme Court frequently talks about the intent of the framers, the Courtmanipulates its findings, or adjusts the level of abstraction at which the framers' intent is

specified, see infra text accompanying notes 37-41, in order to rationalize results reached onother grounds. I certainly have no quarrel with the common observation that the Supreme

Court frequently relies on poorly executed historical scholarship to identify the intent of theframers. See Kelly, Clio and the Court: An Illicit Love Affair, x965 SuP. CT. REv. ixg. Norwould I question that, when the Court does so, result-orientation frequently provides the mostplausible explanation. But the realist interpretation of the role of the framers' intent is ultimatelyunpersuasive, because it mischaracterizes the phenomenology of constitutional argument andinterpretation: it omits the sense of the judge or constitutional lawyer that, as she searches thelegislative history, it does and ought to matter what she finds there.

37 See, e.g., Brest, supra note 12, at 223; Speech by Judge Robert H. Bork (Nov. x8, 1985),reprinted in THE GREAT DEBATE: INTERPRETING OUR WRITTEN CONSTITUTION 43, 47-48

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"general" or "abstract" intent. Specific intent involves the relativelyprecise intent of the framers to control the outcomes of particulartypes of cases. For example, legal historians generally agree that theauthors of the first amendment had the clear and self-conscious ob-jective of prohibiting prior restraints on publication. 38 This, in otherwords, was a specific intent of the framers. Abstract intent refers toaims that are defined at a higher level of generality, sometimes en-tailing consequences that the drafters did not specifically consider andthat they might even have disapproved. An example comes fromequal protection jurisprudence. The authors of the fourteenth amend-ment apparently did not specifically intend to abolish segregation inthe public schools. 39 Yet they did intend generally to establish aregime in which whites and blacks received equal protection of thelaws40 - an aspiration that can be conceived, abstractly, as reachingfar more broadly than the framers themselves specifically had in-tended. Despite the absence of any relevant specific intent, this ab-stract intent is consistent with and supports the conclusion that thefourteenth amendment forbids government segregation based onrace. 4 1 It clearly is an interesting and important question how thechoice is and ought to be made between the types of intent - espe-cially between specific and abstract intent - that sometimes are re-sorted to in constitutional argument. I shall return to this issue inParts IV and V.

(Federalist Society 1986). The most prolific expositor of distinctions has been Professor Dworkin.See, e.g., R. DWORKIN, TAKING RIGHTS SERIOUSLY 134-37 (1977) (distinguishing the "concepts"that the framers incorporated into the Constitution from their "conception" of what, in particular,those concepts require); R. DWORKIN, A MATTER OF PRINCIPLE, supra note 26, at 44 (distin-guishing the framers' interpretive hopes from their interpretive expectations).

38 See Perry, supra note 3, at 287.39 See R. BERGER, GOVERNMENT BY JUDICIARY 117-33 (1977); Bickel, The Original Under-

standing and the Segregation Decision, 69 HARv. L. REv. 1, 58-59 (1955). Even Berger's criticsgenerally have not disputed this point. Perry, supra note 3, at 292 n.131; see Soifer, ProtectingCivil Rights: A Critique of Raoul Berger's History, 54 N.Y.U. L. REv. 651, 705 (I979).

40 See generally Bickel, supra note 39.41 See Brown v. Board of Educ., 347 U.S. 483 (i954). The situation would of course be

different and more complicated if the framers had specifically and explicitly intended that theequal protection clause not under any circumstances be construed to require desegregated schools.But the problem of "negative intent" was not presented by Brown. See infra text accompanyingnotes 390-94.

Paralleling the distinction between specific and general intent is Professor Dworkin's distinc-tion between "concepts" and "conceptions." See R. DWORKIN, TAKING RIGHTS SERIOUSLY,supra note 37, at 134-37. Within this terminology, the authors of the fourteenth amendmentintended to constitutionalize a requirement of equal legal treatment. This concept, however,admits of many conceptions or interpretations. While the framers' own conception may havebeen a narrow one - possibly permitting, for example, segregation in the schools - the conceptof equal treatment also may have more exacting conceptions. Dworkin argues that it is theconcept of equal treatment, not the narrow conception of the framers, that the fourteenthamendment properly expresses.

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C. Arguments of Constitutional Theory

A third familiar kind of argument involves the purposes, describedin a general, functional, or theoretical sense, of the Constitution as awhole or of its provisions individually. Arguments of this kind pushbeyond what could plausibly be considered the plain meaning ofconstitutional language. Instead, they claim to understand the Con-stitution as a whole, or a particular provision of it, by providing anaccount of the values, purposes, or political theory in light of whichthe Constitution or certain elements of its language and structure aremost intelligible. Arguments asserting that particular values or prin-ciples enjoy constitutional status because of their role in a theory ofthis kind I shall refer to as arguments of constitutional theory.

This category is, admittedly, rather loosely defined. A few ex-amples may help to clarify its contours. At one end of the theoreticalspectrum stand arguments based on comprehensive constitutional the-ories, such as that propounded by Dean John Hart Ely.42 Accordingto Ely's theory, the Constitution, read as a whole, creates a predom-inantly democratic and majoritarian structure of government; therights with which it is, and must be, most concerned are those relatingto failures of the democratic process. 43 From this democratic andprocess-based account, Ely derives the principle that the courts gen-erally should read open-ended provisions of the Constitution to inval-idate legislative and executive action where - and, without cleartextual warrant, only where - a rights-protective interpretation isnecessary either to provide fair and equal access to the political processor to correct for what he regards as process failures. 44 An argumentbased on Ely's theory would be a clear example of an argument ofconstitutional theory.

At the middle level of theoretical argumentation would be argu-ments about, for example, the reasonable implications of our federalstructure or many of the arguments that Professor Charles Black hascharacterized as arguments from structure and relationship. 45 Sucharguments support constitutional conclusions on the basis of their fitwith, or even their entailment by, the necessary presuppositions ofthe governmental structure that the Constitution creates. A famousexample of structural argument comes from Chief Justice Marshall'sopinion in McCulloch v. Maryland,46 forbidding state taxation offederal entities on the ground that the power to tax is the power todestroy. 47 With the state and national governments structured as they

42 See J. ELY, supra note 6. For a fuller discussion of Ely's theory, see pages 12 17-23 below.43 See J. ELY, supra note 6, at 4-9, 73-104.44 See id. at 102-03.45 See C. BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (I969).46 17 U.S. (4 Wheat.) 316 (i8i9).47 See id. at 427.

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were under the Constitution, it would make no sense, Marshall rea-soned, for the states to be able to frustrate constitutionally legitimatefederal policies. 48 Arguments of this kind can be viewed as ones ofconstitutional theory because, although they do not rely on either theprecise linguistic meaning of particular constitutional provisions or onthe historically identifiable intent of the framers, they are text focused.

Finally, closer to the particularistic end of the theoretical spectrumlie such assertions as the commonplace that it is the purpose of thefirst amendment to protect a marketplace of ideas. 49 It would bepossible, of course, to cast this claim as an account of the framers'general intent. But the argument that courts should protect the mar-ketplace of ideas might also issue, entirely independently of any in-quiry into the attitudes of the framers, from a view about the values,assumptions, or political theory in light of which the language of thefirst amendment makes the most sense. 5 0

Arguments of this kind are closely analogous to, if not identicalwith, what have sometimes been characterized as "clause-bound" in-terpretivist arguments.3 1 Clause-bound interpretivist arguments pur-port to "derive" a value from some relatively clear and secure foun-dation in a particular provision of the constitutional text; thearguments are classified as interpretivist because the aspiration is todraw "inferences" purely from textual sources.5 2 But the terminologyof "derivation" and "inference" is misleading. At least after we haveleft the domain of arguments from text, it is always necessary toformulate a theory about a constitutional provision, or ascribe a pur-pose to it, before any "derivation" of particular conclusions can occur.Moreover, because the text commonly is so spare, it frequently willfail to determine any one theory but will, instead, be consistent withseveral. Thus the first amendment appears to some to create a generalmarketplace of ideas. But others ascribe to the free speech guarantee

48 Chief Justice Marshall also relied importantly on structural arguments in his even morefamous opinion in Marbury v. Madison, 5 U.S. (i Cranch) 137 (1803), in which he reasoned,for example, that a written constitution would be meaningless in restraining legislative power,as it was clearly intended to do, if the courts were incompetent to engage in judicial review.See id. at 178.

49 See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969); Abrams v. UnitedStates, 250 U.S. 616, 630 (i919) (Holmes, J., dissenting).

so It is for this reason that John Stuart Mill, who authored a celebrated essay on the values

and purposes served by preserving wide liberties of thought and discussion, is frequentlyclassified as a first amendment theorist. See, e.g., Wellington, On Freedom of Expression, 88YALE L.J. 1105 (1979). Although Mill's ON LIBERTY (D. Spitz ed. 1975) made no reference to

the first amendment or its framers, his arguments establish a framework of values and purposesthat can usefully be referred to in defining the "freedom of speech" that the first amendmentshould be construed to protect.

51 See J. ELY, supra note 6, at 11-41.52 See, e.g., Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J.

1, 3-7 (971).

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the purpose, for the most part, of protecting the value only of indi-vidual - as opposed, for example, to corporate - self-expression. 5 3

Still others view the object as limited to preserving the freedom ofpolitical speech essential to a democracy.

5 4

This disparity of views should not be surprising. A constitutionaltheory must seek not only to explain constitutional guarantees andprohibitions but also to do so in a normatively attractive way. Andwhere more than one theory plausibly accounts for the text havingbeen written as it was, an assessment along a normative dimension,whether undertaken consciously or unconsciously, becomes inevitableand desirable. The upshot is that the "derivation" of constitutionalvalues can seldom if ever be a value-neutral enterprise.5 5 That iswhy what others sometimes call clause-bound interpretivist argumentsare more accurately classified as arguments of constitutional theory.

D. Arguments from Precedent

Constitutional disputes frequently abound with analysis of themeanings of judicial precedents.5 6 Indeed, constitutional argumentssometimes address themselves almost entirely to the meanings of pre-viously decided cases:5 7 read one way, precedent indicates one resultin dispute, whereas if read another, it leads to a different conclusion.More commonly, however, prior judicial decisions form a patchworkinto which a current problem must be fitted through a combinationof analytical, analogical, and theoretical reasoning.5 8 The problemthen is one of developing a theoretical account of what the decidedcases stand for.

As Professor Shapiro has recently observed, our legal system sup-ports "two coexisting doctrines of precedent: a narrow one for getting

s3 See Pacific Gas & Elec. Co. v. Public Util. Comm'n, io6 S. Ct. 903, 917 (1986) (Rehnquist,J., dissenting); see also Baker, Commercial Speech: A Problem in the Theory of Freedom, 62IOWA L. REv. 1, 4 (1976) (arguing that the first amendment protects only speech connected withindividual liberty and self-realization).

54 See Bork, supra note 52, at 26-35.55 I am, in short, deeply skeptical of claims that an interpretivist methodology makes it

possible to identify with precision "a value judgment the framers constitutionalized at somepoint in the past." M. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS IO-

ii (x982) (explaining, although not endorsing, the aspirations of interpretivism).56 For interesting and useful accounts of the role of precedent in constitutional adjudication,

see, for example, Michelman, Constancy to an Ideal Object, 56 N.Y.U. L. REV. 406 (I981);Monaghan, supra note 30, at 387-91; Monaghan, Taking Supreme Court Opinions Seriously, 39MD. L. REv. 1 (1979) [hereinafter Court Opinions].

57 See Jones, supra note 18, at 28; see, e.g., Skipper v. South Carolina, io6 S. Ct. 1669,1670-73 (1986) (interpreting two earlier decisions to elucidate the standard of admissibility ofmitigating evidence in a criminal case); Michigan v. Jackson, io6 S. Ct. 1404, 1407-1I (1986)(discussing earlier cases on the admissibility of confessions in criminal cases).

58 See generally E. LEVI, AN INTRODUCTION TO LEGAL REASONING (1949).

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rid of troublesome decisions, and a broad one for taking advantageof helpful decisions."5 9 In this context, the construction of theories ofdecided cases will inevitably be influenced by the beliefs and valuesof the individual constitutional interpreter. To cite a suggestive ex-ample, in Pennhurst State School & Hospital v. Halderman,60 JusticeStevens, in his dissenting opinion, accused the majority of "repu-diat[ing] at least 28 cases."'6 1 Answering for the majority, JusticePowell asserted that nearly all of the cases that were relied on by thedissenting Justices could be distinguished and that many of the deci-sions were "simply miscited." 62 Bad faith need not have obtained oneither side.

63

An adequate theory of the meaning of legal precedents, like anylegal theory that seeks to guide future conduct, must satisfy twocriteria. First, it should achieve descriptive accuracy by fitting thedata that the theory attempts to explain. Second, a theory of prece-dent should depict the data in the normatively most attractive lightthat the implicit conventions of our constitutional practice will permit.The criteria of fit and attractiveness are both theory dependent andcontestable. 64 With respect to fit, some judges and lawyers simplywill "see" or "read" the cases differently. Moreover, even if this prob-lem could be passed over, different constitutional interpreters maydisagree as to what constitute permissible bases for distinction underthe loose doctrine of precedent and how much past decisions fairlycould be claimed to establish under a broader approach. This is notto suggest that purposive theory construction cannot go too far. Some-times "a precedent cannot be distinguished away under the narrowestapproach consistent with fair argument, and ... there are other timeswhen no controlling or even persuasive precedent can be found nomatter how broadly the existing decisional corpus is viewed."

6 5

59 Shapiro, In Defense of Judicial Candor, ioo HARV. L. REv. 731, 734 (987). Shapiroattributes this view, which he describes as being "close" to his own, to K. LLEWELLYN, THEBRAMBLE BUSH 74-75 (1951).

60 465 U.S. 89 (1984).61 Id. at 165 (Stevens, J., dissenting). Joining Justice Stevens' opinion were Justices Brennan,

Marshall, and Blackmun.62 Id. at o9.63 For an insightful assessment of the competing arguments, in Pennhurst, see Shapiro, The

Supreme Court: 1984 Term - Comment: Wrong Turns: The Eleventh Amendment and thePennhurst Case, 98 HARv. L. REV. 6x (1984).

64 Modern philosophy of science holds that none of our beliefs about the world is independentof theory. See, e.g., H. PUTNAM, REASON, TRUTH AND HISTORY 135 (198); IV. QUINE, TwoDogmas of Empiricism, in FROM A LOGICAL POINT OF VIEW 20-46 (2d ed. 198o). Theimplication is that the data to be explained along the dimension of "fit" are not independent oftheory, because theory is needed to establish what will count as data and what will not.

65 Shapiro, supra note 59, at 734. Thus, in Pennhurst, either Justice Powell or JusticeStevens may have been mistaken in his judgment about what readings the narrower and broaderdoctrines of precedent would permit.

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Nevertheless, a significant latitude exists for good faith argument andfor normative choice based on moral and political attractiveness. Andthe moral and political attractiveness of a reading of the precedentsdepends relatively straightforwardly on the political values and as-sumptions of the interpreter.

66

E. Value Arguments

Sometimes openly, sometimes guardedly, judges and lawyers makearguments that appeal directly to moral, political, or social values orpolicies. 67 Every now and then, of course, courts assert that valuechoices are never for them to make but are solely the domain of thepolitical branches. 68 However, protestations of this kind are simplynot credible. Indeed, at least occasionally they signal that the courtis about to implement a value choice so controversial that denial iseasier than explanation. 69 Value arguments are even more prominent;indeed, they enjoy almost total predominance, in much of the mostrespected modern constitutional scholarship.70

66 A subsidiary issue within the category of arguments from precedent concerns the questionof when a case or line of cases should be overruled. The principle is clear that stare decisis isgenerally entitled to less weight in constitutional than in nonconstitutional cases, see, e.g.,United States v. Scott, 437 U.S. 82, io (1978) (citing Burnet v. Coronado Oil & Gas Co., 285U.S. 393, 406-08 (2932) (Brandeis, J., dissenting)), and that in the former sitution the SupremeCourt stands ready to "correct its errors even though of long standing," United States v. Barnett,376 U.S. 681, 699 (1964).

67 In some cases, such arguments provide a basis for accepting claims of constitutional rights.See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion) (holdinga housing ordinance restricting rights of extended families to live together invalid because "theinstitution of the family is deeply rooted in this Nation's history and tradition" and therefore isprotected by the due process clause); Rochin v. California, 342 U.S. I65, 169-74 (1952) (con-cluding that extracting evidence from a defendant's stomach "shocks the conscience" and thusconstitutes an unreasonable search forbidden by the due process clause). In other cases, thesearguments provide a basis for denying claims of right. See, e.g., Bethel School Dist. No. 403v. Fraser, zo6 S. Ct. 3159, 3164 (1986) (reasoning that schools may punish the use of obscenityby students because it is the school's duty to enforce "fundamental values," including the "habitsand manners" of civility essential to a democratic society); Paris Adult Theater I v. Slaton, 413U.S. 49, 57-70 (1973) (concluding that obscenity is of "slight social value" and upholding againstasserted first amendment claims the right of communities to preserve a decent society).

68 See, e.g., Harris v. McCrae, 448 U.S. 297, 326 (I98O); Ferguson v. Skrupa, 372 U.S.726, 730-32 (1963); Williamson v. Lee Optical, Inc., 348 U.S. 483, 488 (i955); Olsen v. Nebraskaex rel. Western Reference & Bond Ass'n, Inc., 313 U.S. 236, 246-47 (1941).

69 See, e.g., Roe v. Wade, 410 U.S. 113, x16 (I973) (asserting that the Court's task indetermining whether restrictions on abortion offend the Constitution "is to resolve the issue byconstitutional measurement, free of emotion and of predilection").

70 For a survey, see Wiseman, The New Supreme Court Commentators: The Principled, the

Political, and the Philosophical, io HASTINGS CONST. L.Q. 315 (1983). For criticisms of thisvalue-laden approach, see Monaghan, cited in note 3o above, at 375-87, and Van Alstyne,Interpreting This Constitution: The Unhelpful Contributions of Special Theories of JudicialReview, 35 U. FLA. L. REV. 209 (1983).

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Although various other definitions would be possible, I shall usethe term "value argument" to refer only to claims about the moral orpolitical significance of facts or about the normative desirability ofoutcomes. Defined in this way, value arguments assert claims aboutwhat is good or bad, desirable or undesirable, as measured againstsome standard that is independent of what the constitutional textrequires. Value arguments do not claim that the particular valuejudgments they assert are necessarily ones that the framers intendedto constitutionalize, or that they express the best constitutional theory.Rather, value arguments advance conclusions about what is morallyor politically correct, desirable, or expedient as measured against somestandard. 71

To make these claims somewhat more concrete, it may help toposit a provisional distinction between two kinds of cases in whichvalue arguments have a conventionally accepted role. One involvesconstitutional language whose meaning has a normative or evaluativecomponent. Examples include the due process clauses, 72 the equalprotection clause, 73 the fourth amendment's prohibition of "unreason-able" searches and seizures, 74 and the eighth amendment's guaranteeagainst "cruel and unusual punishments.175 These phrases constitu-tionalize particular concepts or values. But those values or conceptsare, in the idiom of ordinary language philosophy, "essentially con-testable. ' 76 Although the evaluative judgments that the concepts areused to express are wholly intelligible even to those who disagree withthem, consensus breaks down over the proper criteria for determiningwhen such labels as "procedurally fair" or "unfair," "equal" or "un-equal," "reasonable" or "unreasonable," and "cruel and unusual" areapt. Different people apply the terms differently, not because somemisuse the language, but because the full meaning of each term de-pends upon a background network of philosophical values and as-sumptions that is itself disputable. 77 To decide when an essentially

71 This definition of "value arguments" sweeps in arguments that assert the moral rights of

groups or of individuals and those that appeal instead to goals or policies of the society that donot give rise to rights. Cf. R. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 37, at 82(distinguishing "arguments of policy," which "justify a political decision by showing that [it]advances or protects some collective goal of the community as a whole," from "arguments ofprinciple," which "justify a political decision by showing that the decision respects or securessome individual or group right"). Although I shall generally use the term "policy arguments" torefer to the former and "moral arguments" to refer to the latter, my purposes in this Articlerequire no sharp distinction between the two.

72 U.S. CONST. amend. V.; id. amend. XIV.73 Id. amend. XIV, I.74 Id. amend. IV.75 Id. amend. VIII.76 See Gallie, Essentially Contested Concepts, 56 PROC. OF THE ARISTOTELIAN SOC'Y 167

(1956); MacIntyre, The Essential Contestability of Some Social Concepts, 84 ETHICS I (1973).77 To avoid reliance on the moral and political judgment of judges, one conceivable position

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contestable concept "properly" applies therefore requires the consciousor unconscious undertaking of moral and political commitments.

As a result, in a variety of areas, the Supreme Court not onlyengages in but also prescribes an analytical process that addressesitself to the force of competing value arguments. The jurisprudenceof "cruel and unusual punishment" reveals a clear strand of moraland political argumentation: the Court has held that the eighth amend-ment must be construed in light of the "'evolving standards of decencythat mark the progress of a maturing society.' '78 An analogous struc-ture of argument and reasoning prevails in judicial efforts to determinewhen, under the fourth amendment, searches and seizures should beheld "unreasonable." To reach a judgment as to reasonableness, courtsfirst must determine whether the person claiming the right had ajustifiable expectation of privacy in light of what society would beprepared to recognize as "reasonable" and then balance the individualinterest against the interest of the state in effective law enforcement.

79

Similarly, in order to determine whether procedures are adequateunder the due process clause, the Supreme Court has developed acalculus in which judicial decisionmakers must identify the point atwhich "the benefit of an additional safeguard to the individual affected... and to society in terms of increased assurance that the action is

just [is] outweighed by the cost."80 This process plainly depends onan assessment of value arguments concerning the significance of boththe individual and social interests that are implicated.

81

would be that judges, in construing these provisions, should never give weight to value argu-ments about what is, for example, fair or unfair, reasonable or unreasonable; instead, theyshould base their decisions in every case either on the framers' views or on the value schemethat generally obtained at the time of the provision's enactment. See Monaghan, supra note 30,at 367 ("No relevant evidence on the ninth amendment and very little with respect to theprivileges and immunities clause supports an inference that either was intended to have adynamic character."). But that view has not prevailed.

78 Ford v. Wainwright, io6 S. Ct. 2595, 2600 (1986) (quoting Trop v. Dulles, 356 U.S. 86,ioi (1958) (plurality opinion)).

79 See Hudson v. Palmer, 468 U.S. 5,7, 525-28 (1984); see also New Jersey v. T.L.O., 469U.S. 325, 337 (i985) (stating that courts must identify "the individual's legitimate expectationsof privacy and personal security" and weigh them against "the government's need for effectivemethods to deal with breaches of public order").

80 Mathews v. Eldridge, 424 U.S. 319, 348 (1976).81 For an insightful critique of the Court's approach to assessment of the values actually at

stake in procedural due process cases, see Mashaw, The Supreme Court's Due Process Calculusfor Administrative Adjudication in Mathews v. Eldridge, 44 U. CHI. L. REv. 28 (1976).

A more controversial example of judicial reliance on value arguments emerges from "sub-stantive due process" cases. Substantive due process doctrine assumes that the due processclause protects at least some substantive values deemed to be "fundamental." See, e.g., Roe v.Wade, 410 U.S. 113, 152-55 (i973); Poe v. Ullman, 367 U.S. 497, 541 (196i) (Harlan, J.,dissenting). But substantive due process methodology also postulates that the protected valuesmust not only be given content, but actually identified, by appeal to some authority outside ofthe explicit constitutional text. In Moore v. City of East Cleveland, 431 U.S. 494 (i977), for

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In a second kind of case, the invocation of value arguments ap-pears to reflect the slightly different assumption that, where argumentswithin other categories are indeterminate or closely balanced, it iseither necessary or at least reasonable to take account of considerationsthat value arguments address. The claim here, though difficult todocument, resonates with both experience and common sense. A clearexample, already discussed at some length, lies within the category ofarguments from precedent. The implicit norms of our constitutionalpractice frequently permit both broad and narrow readings of pastjudicial decisions. 82 Which approach ought to be preferred in anyparticular case, and how a string of decisions ought to be ordered intoa pattern or subsumed under a theory, often will and should beresolved on normative grounds. Similar results occur within othercategories of argument, such as arguments of constitutional theory.Confronted with contending theoretical arguments that are equally ornearly equally plausible, judges prefer those that accord with theirviews of justice or sound policy.8 3

Although I have provisionally distinguished between two kinds ofvalue arguments - those needed to give meaning to constitutionalprovisions that expressly require value judgments and those invokedin making choices where other kinds of arguments are closely balancedor indeterminate - this distinction is not one that I shall try tomaintain. There are too many unclear cases. Within the Bill ofRights, for example, the protection of "the freedom of speech"8 4 ar-

example, the plurality reasoned that the due process clause protects certain family relationshipsbecause "the institution of the family is deeply rooted in this Nation's history and tradition."Id. at 503. This argument presupposes that the Constitution authorizes the protection ofnonenumerated rights. It does not claim, however, that the constitutional text expressly, oreven within the terms of a constructivist theoretical interpretation, marks family relationshipsas deserving of protection or indicates how much protection they ought to get. Rather, theargument assumes that protection is warranted because history and tradition provide familyrelationships with the pedigree necessary for them to deserve weight in constitutional argument.Cf. Poe, 367 U.S. at 542 (Harlan, J., dissenting) (arguing that in giving content to the dueprocess clause, the Court cannot rely on any "formula" or "code" but must refer to "the traditionsfrom which [the country] developed as well as the traditions from which it broke").

82 See supra text accompanying note 59.83 Value arguments of this type are frequent in first amendment jurisprudence. See Wel-

lington, Common Law Rules and Constitutional Double Standards, 83 YALE L.J. 221, 267-700973). For instance, in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council,Inc., 425 U.S. 748, 763 (976), the leading case establishing that the first amendment protectscommercial advertising, the Supreme Court argued that the "interest in the free flow of com-mercial information" was frequently more important to consumers than their interest in "theday's most urgent political debate" and that courts could properly take this consumer interestinto account. Although this argument could be characterized as one of constitutional theory, itappears to have played a different role in Justice Blackmun's opinion. With plausible argumentsof constitutional theory available on both sides, the Court appealed to the value of consumersatisfaction - one that is not clearly established as a "constitutional value" by provisions of theconstitutional text - to determine how the balance should be struck.

64 U.S. CONST. amend. I.

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guably constitutionalizes a value judgment that is as essentially con-testable as the prohibitions of "cruel and unusual" punishments and"unreasonable" searches and seizures. To determine whether the ut-terances of a high school student are constitutionally protected, theSupreme Court has asserted, "[t]he undoubted freedom to advocateunpopular and controversial views in schools and classrooms must bebalanced against the society's countervailing interest in teaching stu-dents the boundaries of socially appropriate behaviour."8 5 Is it ac-curate in this case to say that the concept of "freedom of speech"requires the interpreter to resort to sources of value outside the con-stitutional text to determine how the constitutional guarantee oughtto be construed? Or should we say instead that a constitutionalinterpreter may be guided by considerations of value in resolving acase in which other factors - such as arguments from text, the intentof the framers, constitutional theory, and precedent - are nearly inequipoise or at least would be viewed differently by people whosevalues are different? All that seems clear is that value arguments willsomehow enter the judicial calculus.

Within the category of arguments of value, a final distinction willprove helpful. It involves the sources of values to which a judgemight appeal. One kind of value argument refers to some repositoryof values, outside of herself, that a judge or lawyer believes to be alegitimate source of authority in constitutional interpretation.8 6 Thatsource might be traditional morality,8 7 consensus values,88 naturallaw,8 9 economic efficiency, 90 or the original position liberal method-ology of John Rawls. 91 Another imaginable kind of value argument

85 Bethel School Dist. No. 403 v. Fraser, io6 S. Ct. 3159, 3164 (1986).

86 See generally Bennett, Objectivity in Constitutional Law, 132 U. PA. L. RaV. 445, 447(1984) (defining objectivity in constitutional law in terms of "sources for decision external to thedecider's own .. .standards or values" even if those external sources are not authoritative inthe sense of determining one right answer to a constitutional question).

87 See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)("[T]he Constitution protects the sanctity of the family precisely because the institution of thefamily is deeply rooted in this Nation's history and tradition."); Poe v. Ullman, 367 U.S. 497,542 (i96i) (Harlan, J., dissenting) ("The balance of which I speak is the balance struck by thiscountry, having regard to what history teaches are the traditions from which it developed aswell as the traditions from which it broke."); Wolf v. Colorado, 338 U.S. 25, 28-30 (i949)(examiming traditions of the "English speaking world" to determine views on the exclusionaryrule).

8s See Wellington, supra note 83, at 284.89 See Dworkin, "Natural" Law Revisited, 34 U. FLA. L. REv. I65 (1982); Moore, supra

note I5.90 See generally R. POSNER, ECONOMIC ANALYSIS OF LAWv (3d ed. 1986).91 J. RAWLS, A THEORY OF JUSTICE (1971); see Michelman, In Pursuit of Constitutional

Welfare Rights: One View of Rawls' Theory of Justice, 121 U. PA. L. REv. 962 (1973); Richards,Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. PA.L. REV. 45, 59-70 (i974).

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would be one in which a judge or theorist simply asserts her ownvalues and claims their entitlement to constitutional weight. Thissecond sort of argument may never be made explicitly, but criticsfrequently claim to find it only barely concealed in invocations of suchsources of authority as traditional morality and natural law. 92

H-. THE INADEQUACY OF TRADITIONAL THEORIES

The problem of commensuration or cumulation of the variousfactors in constitutional argument has seldom been explicitly formu-lated. Nevertheless, possible solutions can be extrapolated from sev-eral of the better-known constitutional theories. Two types of theoriespredominate. Privileged factor theories give determinative significanceto arguments within one or two of the categories and virtually ignoreother kinds of argument. Open-system theories hold that it is impos-sible to give rule-like specifications of how different kinds of argumentshould be assessed and thus maintain that answers to the problemmust vary with the situation.

At least one intuitively plausible alternative also merits discussion.Balancing theories would weigh arguments within each of the cate-gories proportionately to the arguments' independent power or deter-minacy. Although each of these kinds of theories possesses initialplausibility, all of them ultimately have disabling defects.

A. Privileged Factor Theories

One approach to what I have termed the commensurability prob-lem is to privilege one or two types of constitutional argument. Whena privileged factor indicates a result, its conclusion controls the con-stitutional issue. Other kinds of argument come into play, if at all,only in cases where arguments within the privileged categories areindeterminate or yield a tie. Perhaps the best known privileged factortheory is "interpretivism." But Ely's theory also falls within thisrubric.

i. Interpretivism. - A prominent school of constitutional theoristsasserts that a court should hold government action unconstitutionalonly on the basis of one or both of two privileged factors: argumentsfrom text and the intent of the framers. 93 Interpretivism, as this

92 See, e.g., Rochin v. California, 342 U.S. 165, 175-77 (1952) (Black, J., concurring);

Adamson v. California, 332 U.S. 46, 69-75, 90-92 (1947) (Black, J., dissenting); J. ELY, supranote 6, at 44, 5o, 67.

93 For slightly varied statements of what "interpretivism" is, see J. ELY, cited in note 6above, at i, and M. PERRY, cited in note 55 above, at lo-Ii. However it is defined, interpre-tivism is more an ideal type than a descriptive label. Examples of important work approximatingthe ideal type are R. BERGER, cited in note 39 above; Bork, cited in note 52 above; andMonaghan, cited in note 30 above.

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school is called, attempts to exclude value arguments insofar as pos-sible from the constitutional calculus. The logic of the interpretivistposition calls for reducing arguments from precedent to prior inter-pretations of text and the framers' intent. 94 Interpretivism also rejectsarguments of constitutional theory that depart from the intent of theframers.

95

Interpretivism's intellectual attractiveness derives from two closelyrelated sources. The first is the assumption that the Constitutioncreates a predominantly democratic and majoritarian structure of gov-ernment. 96 With democracy representing the norm, interpretivistsargue that society has consented to be bound by decisions of theSupreme Court, which is nondemocratic, only "within defined areasby certain enduring principles believed to be stated in, and placedbeyond the reach of majorities by, the Constitution." 97

The related attraction of interpretivism stems from the notion thatcourts as well as legislatures should be subject to the rule of law.98Sometimes constitutional norms and standards will be discoverablefrom the language of the text; other times, however, the textual lan-guage will be ambiguous or vague. In the latter situation, interpre-tivists require that a judge assess the permissibility of legislative actionfrom within rather than above the Constitution, by adhering to theintentions, to the extent that they can be identified, of those whowrote the operative words. 99

94 See R. BERGER, supra note 39, at 297-98. But see infra note 120 (discussing the inter-pretivist suggestion that stare decisis must sometimes prevail against arguments from text andthe framers' intent).

95 See Bork, Styles in Constitutional Theory, 26 S. TEx. L.J. 383, 390 (1985) (criticizingEly's theory for portraying the Constitution as more democratic than it really is).

96 The two classic modern statements of this view, neither the work of a strict interpretivist,

are A. BICKEL, THE LEAST DANGEROUS BRANCH (1962), and J. ELY, cited in note 6 above.The Constitution is, of course, not wholly majoritarian. See, e.g., L. TRIBE, CONSTITUTIONALCHOICES I I (1984); Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J.1013, 1013-16 (1984); see also U.S. CONST. art. I, io (contracts clause); id. art. VI (supremacyclause). Nonetheless, it is a powerful interpretivist argument that the countermajoritarianelements of the Constitution define an exception, which must be carefully cabined so as not to

displace the rule.97 Bork, supra note 52, at 3; accord Adamson v. California, 332 U.S. 46, 89 (i947) (Black,

J., dissenting) ("I fear to see the consequences of the Court's practice of substituting its ownconcepts of decency and fundamental justice for the language of the Bill of Rights."); id. at 69-75, 89-92.

9s This theory of the Constitution's role and status traces to the foundational decision ofjudicial review, Marbury v. Madison, 5 U.S. (I Cranch) 137 (1803). See Brest, supra note i8;Grey, supra note 18, at 705.

99 As will become clear later, this is not an argument that I accept, although I believe thatit must be taken seriously and that its attractiveness helps to explain the power of interpretivism.The argument's crucial gap involves the implicit assumption that judicial conformity to theConstitution necessarily requires that judicial decisions be "determined" in every case by some-

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Without further refinement, however, interpretivism is ambiguouson two crucial questions. The first involves the permissible scope ofarguments from text: is textual meaning confined to the original un-derstanding or can the Constitution's meaning change over time?' 0 0

A similar ambiguity attends the interpretivist claim that the intent ofthe framers should control constitutional issues: is the intent of theframers limited to their specific intent, or may it sometimes encompassgeneral or abstract intent as well?' 1

These ambiguities define a divide within the interpretivist camp.On one side stand "originalists." Originalists take the rigid view thatonly the original understanding of the language and the framers'specific intent ought to count. 102 On the other side, "moderate inter-pretivists" allow contemporary understandings and the framers' gen-eral or abstract intent to enter the constitutional calculus. 103

Originalism purports to be the purer and more rigorous alterna-tive.10 4 But its purity proves its undoing, because originalism cannotsatisfy the standards that it sets for itself. The problem is that ar-guments from text and the framers' intent cannot be kept independentof other kinds of factors that originalists, with their conception ofwhat the rule of law requires, insist on excluding. Originalists concedethat arguments based on the original understanding frequently willprove indeterminate unless appeal also is made to the intent of theframers; to know what words meant at periods remote in time, wecommonly must refer to the intent of the drafters and ratifiers.10 5 Yetif originalism relies on the psychological intent of the framers, it

thing other than the reasoned, and publicly explained and defended, value judgments of theinterpreting judges. For an insightful discussion of this and related issues, see Michelman,Justification (and Justifiability) of Law in a Contradictory World, in 28 NOMOS: JUSTIFICATION71 (J. Pennock & J. Chapman eds. 1986). For a fuller discussion of the fallacies of interpretiv-ism's implicit theory of the rule of law, see note 13x below.

100 See supra text accompanying notes 29-31.101 See supra text accompanying notes 37-41. It is a minor irony of theories emphasizing

the intent of the framers that the framers themselves apparently thought that their "psychologicalintent" - as distinct from the natural import of their words - was a concept of little if anyvalidity in constitutional adjudication. See Powell, The Original Understanding of OriginalIntent, 98 HARV. L. REv. 885, 887-88, 902-13 (1985). To the extent that intent was useful atall, many of the framers argued that the relevant intent would be not their own but that of theratifiers. See id. at 888, 9o6-07.

102 This is the view of Professor Berger. See R. BERGER, supra note 39, at 283-418. Italso appears to be one to which Professor Monaghan is attracted, see Monaghan, supra note30, at 374-81, though less clearly committed, see id. at 382.

103 See Brest, supra note 18, at 223-24, 231-34.

104 See Monaghan, supra note 30, at 378 (arguing that conceptualizing original intent at highlevels of abstraction, as moderate interpretivists do, "sterilize[s] the concept ... [and,] in effect,removes it as an interpretational constraint").

105 See R. BERGER, supra note 39, at 363-72.

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encounters a daunting array of historiographical, conceptual, and in-terpretive problems. 10 6 If, for example, the framers are taken indi-vidually, a problem exists in defining what, among a person's mentalattitudes, ought to count as an intention. 10 7 Moreover, the originalistconfronts a perplexity that borders on paradox if it turns out thatmany of the framers had a certain kind of "interpretive intent": if theyintended that a constitutional provision be adapted judicially to ac-commodate evolving needs rather than applied only to an historicallydefined set of situations.10 8

Once intentions are identified at the individual level, originalistsconfront the equally formidable challenge of combining them into aplausible concept of group intent. Different concerns may have mo-tivated different drafters or supporters even of a single constitutionalprovision. For any single person or group, the animating principlemay be stated more or less broadly. Probably as a result, no widelyrecognized legal convention establishes precisely how the requiredsumming of individual intentions ought to occur.10 9

Although it is possible to develop an intelligible conception ofgroup intent, the best available theory fails to satisfy the aspirationsof originalism. Far from being a simple fact awaiting discovery bythe industrious researcher, the framers' intent must be viewed as anintellectual construct, developed through a process of interpretation,that seeks to embody the principles that furnish the best politicaljustification for a constitutional provision and that find substantialsupport in the political climate surrounding the provision's framing

106 See, e.g., R. DWORKIN, A MATTER OF PRINCIPLE, supra note 26, at 38-57; Brest, supranote i8, at 221-23.

107 A person voting to accept a constitutional provision or amendment may have given littlethought to its meaning. Others may have had "hopes" about how the provision would beinterpreted that differed from their interpretive "expectations." See R. DWORKIN, A MATTEROF PRINCIPLE, supra note 26, at 44-45; Moore, The Semantics of Judging, 54 S. CAL. L. REV.151, 265-70 (i98I).

108 See Brest, supra note 18, at 212, 215-16; R. DWORKIN, A MATTER OF PRINCIPLE, supranote 26, at 51-55. Professor Dworkin has argued that the framers had this interpretive intentwhen they chose the broad, open-ended language characteristic of, for example, many of theguarantees of the Bill of Rights and of the fourteenth amendment. See R. DWORKIN, TAKINGRIGHTS SERIOUSLY, supra note 37, at 132-37; see also Bickel, supra note 39, at 58-65 (advancingthe "hypothesis" that the framers of the fourteenth amendment chose broad language in orderto permit a process of interpretive growth that they did not specifically mandate). Likewise,the Supreme Court has sometimes assumed that the framers intended to license judicial adap-tation. See Weems v. United States, 217 U.S. 349, 372-73 (9qo) (holding that the cruel andunusual punishment clause of the eighth amendment is not restricted in application to practicescurrent at the time of adoption); see also Harper v. Virginia Bd. of Elections, 383 U.S. 663,669 (1966) ("[T]he Equal Protection Clause is not shackled to the political theory of a particularera."); Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 442-44 (1934) ("It is no an-swer ... to insist that what the provision of the Constitution meant to the vision of that dayit must mean to the vision of our time.").

109 See R. DWORKIN, A MATTER OF PRINCIPLE, supra note 26, at 38-57.

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and adoption.110 With the notion so conceived, particular interpre-tations of the framers' group intent are dependent upon and con-strained by historical materials. But they also embody implicit orexplicit normative judgments. Frequently the historical evidence willfit at least tolerably well with more than one account of the framers'animating intentions.' In this situation, choice among the histori-cally plausible competitors - in a context in which the purpose ofthe inquiry is to guide a judicial decision - is appropriately if notnecessarily made on normative grounds.

This conception of the framers' group intent, of which I myselfshall make use later in this essay, does not imply that the task ofinterpretation cannot be judged as being executed well or poorly,successfully or unsuccessfully. But any conception of the framers'intent is nevertheless theory dependent and contestable in a way thatundermines the originalist's project of "simply" enforcing judgmentsconstitutionalized by the framers. In permitting a political evaluationof contending understandings that find more or less equal support inthe evidence, an "interpretive" conception of the framers' intent affordsarguments of value too much weight to satisfy a consistent originalist.

Nor are originalism's deficiencies limited to its inability to meet itsown standards. Assessed as a descriptive theory of contemporaryconstitutional interpretation, originalism fails spectacularly. Original-ism cannot account for much of our constitutional practice of at leastthe last 50 years. 112 Most of our free speech jurisprudence couldprobably not be justified within an originalist methodology.11 3 Mod-ern equal protection doctrine, including the landmark decision inBrown v. Board of Education,"4 affords a series of telling counter-examples to originalism's descriptive claims. So does fourth amend-ment law. 115 Finally, originalism cannot adequately explain the fa-miliar and important role of precedent in constitutional argument.

Strict originalism does not fare much better when appraised as anormative theory. The Constitution was written to endure through

110 See id. at 326-29. Although Dworkin was concerned with legislative intent as a conceptin statutory interpretation, his idea is easily adapted to the constitutional context. Dworkin,however, has argued recently that the intent of the framers is not a useful concept in constitu-tional interpretation. See R. DWORKIN, supra note ii, at 359-69. For other views similar tothose expressed in the text about how the concept of intent is most intelligibly and appropriatelyunderstood, see Moore, cited in note 15 above, at 349, and White, cited in note 26 above, at438-41.

I See, e.g., infra text accompanying notes 331-35 (discussing the intent of the framers ofthe fourteenth amendment on the issue of affirmative action).

112 See M. PERRY, supra note 55, at 1-2, 61-69; Brest, supra note i8, at 2o5; Grey, supranote I8, at 710-14.

113 See M. PERRY, supra note 55, at 1-2, 64; Grey, supra note 18, at 713.114 347 U.S. 483 (i954).

1- See, e.g., Steagald v. United States, 451 U.S. 204, 217 & n.Io (I98i); Payton v. NewYork, 445 U.S. 573, 591 n.33 (198o); Katz v. United States, 389 U.S. 347, 352-53 (1967).

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different historical ages," 6 and part of the task of constitutional in-terpretation is to produce a body of law adequate to the present day. 117The familiar metaphor of a "living Constitution"' 18 suggests that ourlegal culture assumes a close connection between legal interpretationin general, and constitutional interpretation in particular, and anevolving ideal of justice." 9 In other words, it is, within our tradition,an important aim of constitutional adjudication to achieve a body oflaw that is responsive to perceived modern needs and accepted by thepopulation as tolerably just. The questions of when, how, and towhat extent the rule-of-law ideals associated with a written constitu-tion should accommodate needs for adaptation and change are noto-riously difficult. Yet on a spectrum running from theories that wouldallow no adaptation at all to those that would reduce constitutionallaw to an unmediated clash of value arguments, originalism occupiesthe first untenable extreme. It is a normative deficiency of originalismthat its premises deny any scope whatsoever for accommodation. 120

116 See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819) (noting that the Con-

stitution was "intended to endure for ages to come, and, consequently, to be adapted to thevarious crises of human affairs").

117 Against a functional critique of this kind, an interpretivist might argue that althoughconstitutional law has a function, its capacity to fulfill that function depends not on its malle-ability to accommodate perceived needs but instead on a set of "rule-of-law" virtues associatedwith constancy, predictability, and democratic lawmaking. See R. BERGER, supra note 39, at283-99. But this argument, if offered as a defense of originalism against a charge of functionalmisguidedness, has three flaws. First, as I have argued at length, originalism itself is functionallyunworkable; it cannot satisfy the standards that it erects. See supra pp. 1211-13. Comparativefunctional assessments are therefore deeply embarrassing to the originalist. Second, the rule-of-law argument assumes greater determinacy than in fact exists in our constitutional jurisprudence.Purposive interpretation has no viable formalist alternative. Third, the functional critique oforiginalism stated in the text is not purely instrumentalist in its assumptions. An interpretiveapproach that treats it as an aim of constitutional interpretation to achieve a functionallyworkable and morally just body of law by no means necessarily implies that this is the sole endof constitutional interpretation or that "rule of law virtues" must be discarded entirely. SeeMoore, supra note I5, at 313 (describing "rule-of-law virtues" as "those values that mandatethat judges should not dispense justice in some ad hoc, case-by-case basis"). Text, history, andprecedent both do and ought to impose limitations on how far constitutional provisions draftedin one era may be ascribed new meanings in another.

I's See, e.g., H. McBAIN, THE LIVING CONSTITUTION (1927); Reich, Tie Living Constitu-tion and the Court's Role, in HUGO BLACK AND THE SUPREME COURT 133 (S. Strickland ed.1967).

119 See Dworkin, supra note 89; Grey, supra note 18, at 715-17.120 Sensitive to this difficulty, some originalists have hinted at the possibility of isolated

relaxations. In particular, both Raoul Berger and Professor Henry Monaghan have concededthat, with nonoriginalist doctrines so thoroughly ensconced in our constitutional law, it wouldbe unthinkable to overturn them

FALLON 1987 Constructivist Coherence Theory of Constitutional Interpretation

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