10.2. The what, how, and why of "free will": A metaphysical digression—Part 2. How "free will"?

New data could conceivably disprove Libet’s results, but the correction would mean nothing metaphysically because at the end of the day, Libet’s contribution was conceptual. Libet solved the mind-body problem en passant; his data forced him to grasp the distinction between the deciding experience and deciding itself, but the data themselves are metaphysically otiose. For metaphysics, Libet’s experimental results serve only as scaffolding for distinguishing deciding from decision and showing that temporal associations in the experience of deciding explain why we feel we exercise mentalistic control. The perception of deciding to act, distinct from the fact of acting, both explains the impression that we have free will and demonstrates free will’s untenability. The objective temporal ordering doesn’t bear on these distinctions and explanations—as long as the experience is that the act of will preceded or coincided with the act of deciding.

Libet (somewhat unknowingly) showed how human experience creates a predilection for a misplaced, impossible, perceived causal relation, and connections experienced create the causal illusion; real temporal relations are irrelevant. Simplicity recommends this explanation of phenomenal free will, and the explanation displays exactly why free will is illusion: sensations don’t cause physical events. Holding that experience interacts with the physical world, Descartes was the only important metaphysician to disagree, and every metaphysician today holds that two substances essentially different can’t interact. Physical laws govern physical events and leave no room for entry of purely mental causes.

A possible source of confusion about these arguments is metaphysicians’ acceptance of one class of mental causes, beliefs and desires. In response—perceiving willful efficacy differs from attributing beliefs and desires, in that nothing in the concept of “belief” and “desire” identify them as phenomenal experience. While belief and desire aren't experiences—available for association with other experiences—the error of considering beliefs experiential, held even by metaphysicians until the 20th century, may have generalized from free will to nonexperiental mental entities like belief and desire, causing the naive error that beliefs and desires are experiential.

Finally, since (if) sensations are brain events, one might contend that associating experienced decisions with actual action results in no anomalous causation. First, nothing in the experience of deciding points to the under-strata, and conditioning usually can target only phenomena. Second, if the objection holds, it’s at the expense of the mind-brain-identity theory’s credibility, in its insistence on a direct relationship between phenomenology and physics.

Next essay: Why free will?

10.1. The what, how, and why of "free will": A metaphysical digression—Part 1. What is "free will"?

The Libet experiments can reinvigorate the free-will debate—now deadlocked and dull—if applied to clarify concepts, not merely refute opponents. In the current standoff, almost every philosopher and scientist rejects libertarian free will, the doctrine that willful acts produce physically unpredictable outcomes, but the scholarly majority wants its physicalism and its free will too. This compatibilist maneuver to have both turns the question of free will’s existence into a jejune debate about words; but unfortunately, free will’s inherent ineffability condemns determinists to rejecting what they can’t define. These essays fill the gap.

Compatibilists equate the exercise of free will with voluntary behavior, as when I move my arm because that’s what I want to do. According to the desiccated compatibilist definitions, free will is comprised of the ability to behave voluntarily, notwithstanding that volition is cortical matter physically causing chemical events. Although it’s hard to describe an alternative, this position seems obviously wrong; a science fiction story can quickly show why. Imagine an intelligent species that directly experienced the causal path between brain and arm, as we might experience the causal connection between pain and object causing injury. Such beings would perform the action voluntarily, but would this tempt anyone to call it “free”? Unfortunately, the answer is affirmative. While the thought experiment can allude to the distinction between voluntary and freely willed behavior, a compatibilist would answer the question, “Yes, that is an example of free will.”

Determinists can concede that volition is one meaning of free will but insist on another meaning, origination, the sense that you are your behavior’s source. Although origination separates determinists from libertarians—by the lights of both—compatibilists circumvent the issue by limiting the manifestation of free will to voluntary behavior. That they’ve gotten the better of the argument, despite their evasiveness, must be admitted, because origination is nebulous, unsuited for creating a clear counterpoint to volition. Free will, the agent’s contribution to the event, the umpf we give an act seemingly making it occur, seems ineffable except by the vaguest allusion. Intuitively, we feel we will freely in a sense distinct from mere volition—most everyone thinks they know this other free will—but unsupported mass intuitions truly deserve little respect.

My trick defines the experience of free will by its cause instead of its experiential quality, much as the ineffable red patch observable in your mind’s eye can be defined as the physical reception of an object reflecting certain long light waves. With a difference. If we define the free-will experience by its cause—as we can define the sensation red by its external cause—then, if the definition posits a demonstrably nonexistent entity, it undermines the doctrine of free will, including its compatibilist version.

Recall that Libet found that subjects perceived the act of deciding, the initiating event of the free-will experience, later than the actual decision—this demonstrated neurologically. Determinists see that misplacement of the subjective experience of deciding disposes of libertarian free will. But who believes in libertarian free will? Since they haven’t described the experience of free will, these scholars haven’t refuted compatibilism.

My small contribution is to articulate a definition of free will:

Free will is the (mis)perception that experienced deciding causes behavior.

This project relies on Fritz Heider’s classic psychological experiments as much as on Libet’s neurological studies. Heider showed that despite the abstractness of the concept of cause, temporal precedence and spatial contiguity produce the direct, noninferential perception of causality. (An animated demonstration lets you experience the direct perception of causality.) This sense of a causal connection, resulting from associating perceived decision with act, is the sense of free will.

Attributing the free-will experience to a unique cause frees determinists from the vexation of defining it experientally, since it explains the experience by an invalidating mechanism: if the experience of deciding regularly precedes an act, it will seem its cause. Determinists, therefore, can demonstrate a sense of free will distinct from voluntary control.

Next part: How free will?

10.0. Free Will and Legal Intent: Consequences of a Myth's Demise

Husband hates wife; in a state of nature he would kill her. Only his cowardice deters him. One evening, cleaning his gun, he accidentally shoots and kills her. Can husband now be punished for any crime?

Depending on the degree of care he took to avoid mishap, the offense is ordinarily negligent homicide or manslaughter. We want to know whether he can be blamed for more. Do his unconscious intentions bear on his culpability?

The Interpretation of Dreams, Sigmund Freud provides a simple illustration of the workings of unconscious motivation. Freud didn't want to return a library book quite yet. He knew that without even forming an intention to delay the return, he could trust his unconscious mind to cause him to forget. Of course, that's how it worked out.

It's surprising that psychoanalysis has so little affected the legal concepts of negligence and intent in either criminal or civil law. Freud taught and clinically supported the thesis that nothing in psychology is accidental: even slips of the tongue having meaning. The most interesting expressions of unconscious motives for psychoanalysis are those symbolically representing some wish, but as with Freud and his library book, accidents can realize unconscious wishes directly.

Many psychologists lack Freud's confidence that all behavior is psychologically determined, but findings in cognitive psychology in recent decades have required a thorough rethinking of the origination of behavior. Today's consensus accepts that all cognition (distinguished from its products) is unconscious. Although the Freudian question of motivated negligence hasn't been directly raised, cognition's unconscious nature invites study of the driving unconscious intentions.

The final blow to a purely conscious approach comes not from philosophy but experimental science, which has proven that consciousness has no direct relationship to the acts conscious thoughts seem to cause. Whereas Freud's theories should prompt questions regarding the involuntariness of apparently negligent acts, these experimental results make the apparently intentional acts less so, directly refuting the theory that behavior is freely willed.

What's implied for law by the undermining of concepts of both negligence and willfulness? Benjamin Libet's 1980's scientific work presents the rare instance when a single scientific finding resolves a philosophical question, as Libet's work rules out simplistic theories of free will, while simplistic theories were the only ones credible. Libet and others have replicated that the decision to act arises in the brain before the subject experiences the conscious act of deciding. If free will consists of conscious decisions causing the designated act, then we clearly don't have it, since real causes occur before, not after, the events they cause. The perception–or rather illusion–that the conscious decision causes the resulting behavior is the basis of the universal naïve belief in free will (although I haven't seen the literature expressly drawing this conclusion).

Ironically, Libet was a fervent believer in the existence of free will and proposed a process for its realization in light of his findings. A subject making the conscious "decision" retains the ability to veto the unconsciously engendered act. Libet's theory is free will's last gasp, unsuccessful because the veto is itself an act, with the same unconscious prehistory, thus arising with the same independence from consciousness and bearing the same involuntary character as the original act. The most coherent interpretation at present is that the veto is as little "free" as the act. (See Velleman, David (2000) The Possibility of Practical Reason. Oxford University Press.)

The nonexistence of free will and the intentionality of some unconscious behavior carries both apparent and real implications for law's evolution: 1) directly undermining criminal law's nonrebuttable presumption that voluntary acts are freely determined by the actor; 2) undermining the moral basis for punishment, insofar as it depends on the actor being the originator of acts; and 3) flattening the distinction between negligent and intentional mens rea and negligence and intentional torts.

Commentators commonly cite criminal law's presumption of free will as a potential casualty of discovering it doesn't exist, but the presumption's only legal function is to impose responsibility on all actors for voluntary acts. The demise of one theory doesn't fell an institution. Without logical contradiction, a person without free will can be under legal compulsion to obey.

But is the person responsible; does the unraveling of the explanation regarding why a person can be punished for his voluntary acts undermine the moral basis for criminal punishment? It vitiates the retributionist justification for punishment as desert, a result that is less radical than a crisis of justification but greater than a reshuffling of theories. Desert's demise is a welcomed enlightenment, but some consequences are less benign. Deterrence takes up the justificatory slack from retribution, but from a moral standpoint, deterrence isn't quite up to the job because of its inability to define the set of punishable persons. To rely completely on a deterrence theory turns criminal punishment into a form of social engineering, with no limits but expediency. Such punishment meted out amorally is vulnerable to purely pragmatic enlargement of the set of people who can be incarcerated or otherwise punished. The antipunitive intellectual progress of repudiating free will, paradoxically, fosters punishing more citizens.

Eliminating the conventional rationale for punishment also augurs a certain leveling of the distinction between negligent and intentional torts. Since the premise that voluntary acts are products of free will no longer distinguishes these categories morally, the distinction loses functionality. The recent research even disposes of pragmatic justifications for restricting punishment to intentional acts, as the unconscious has proven more intelligent than most had believed, hence deterrable.

That rehabilitation today is a joke—psychiatric and drug referrals, veiled punishment—contribute to free will's paradoxically punitive death throes: an old ideology crumbles without new institutions arising.

Next in the free will series: What is free will?

9.0 Abolish unlimited-term coercive confinement for civil contempt

Criminal contempt, committed when a party disobeys a court order, is punishable by less than a year in jail. Civil-contempt punishment, imposed to coerce obedience to court orders, may last much longer. The greater potential punishment for the lesser offense is a legal absurdity.

Arguments

Courts use moralistic and pragmatic arguments to benumb lawyers to this anomaly. The moralistic argument is mere incantation: "the contemnor has the key to the cell in his own pocket." (Green v. United States (1958) 356 U.S. 165, 197 [dissenting opn., Black, J.].) This slogan contains a logical fallacy, in implying the defendant exercises a different kind of self-control when the threat of punishment precedes rather than follows disobedience. The fallacy is a pervasive reasoning error, the hindsight bias, where observers perceive past events as determined and future events as free. The illusion created is that the defendant contemplating compliance with the order has free will, while the person having violated a court order is determined. The distinction is false: the defendant has the same potential control or lack of control over his conduct whether the court threatens him with punishment for disobedience or with coercion to induce compliance; the person subject to deterrence is free or both categories are determined. The judges' argument could justify any arbitrarily severe punishment administered after a party violates an order: the contempt respondent could avoid incarceration because he always held the key to his freedom.

The pragmatic argument is that courts couldn't function without the power to compel compliance with their orders. (Gompers v. Buck's Stove & Range Co. (1911) 221 U.S. 418, 438 - 9 [without coercive punishment, law rendered impotent].) This appraisal comes from the courts themselves, as the courts are the primary sponsor of contempt law. Judges' longstanding agreement on the principle is expected, since it concerns judges' most valued prerogative next to their paychecks. While courts must coerce, proponents of long-term coercive confinement haven't said why courts need the level of coercion law allows, when the threat of a few days or the experience of a few hours in jail suffices to persuade most witnesses to testify. Proponents of harsh coercion could argue with the same logic that if perjurers don't suffer life in prison, truthful witnesses would disappear—and with them functioning courts. Just as no perjury or contempt is serious enough to warrant life in prison, so no testimony or other compliance is important enough to justify indefinite detention and no civil matter so crucial to warrant long-term incarceration. Juries have always adapted to procedural limits on evidence and the limited means the law allows for its acquisition.

Threat

Although American citizens rarely suffer coercive confinement for long terms, most jurisdictions issue the potential long-term sentence each time their courts order indefinite coercive confinement for civil contempt. In a well-publicized recent case of long-term civil confinement, Pennsylvania released the defendant after 14-years confinement to coerce payment of alimony. In California, Richard Fine has spent more than a year in coercive confinement.

The case which settled constitutional jurisprudence on coercive confinement for civil contempt proves the threat. (See Gompers v. Buck's Stove & Range Co., supra, 221 U.S. 418.) An employer had enjoined Sam Gompers and other labor leaders from boycott under federal laws outlawing boycotts as restraints on trade. The trial court sentenced them to nine, six, and three months in jail, and the American Federation of Labor appealed the sentence. While the Supreme Court held the case moot because the parties had settled, it upheld the confinement on grounds that the district court erred in sentencing them to any definite term. The contempt was civil, a remedy to coerce compliance with court orders for a party's benefit, not a "punitive punishment" designed to uphold the court's authority.

The court released the union leaders only because the detentions outlived their usefulness, but what if the detention issue hadn't been mooted? If the boycott continued, the employer could use the courts to detain the AFL leaders for the boycott's duration. The disobedience to court order consisted of circulating pamphlets calling the company "unfair." The court decided that the term was a call to boycott, and it probably was, but how does a court facially distinguish a call to boycott from a political denunciation of unfair practices? How did the court expect the union to use its free-speech rights to criticize the company without using words like "unfair," which the court held acquired hidden meaning? How to distinguish between someone reading that the company is unfair and deciding not to buy from it and someone complying with an implicit boycott call? A single judge made these determinations, which threatened the leaders with incarceration during the dispute's duration. Citizens threatened by coercive incarceration aren't limited to millionaires avoiding alimony payments. The courts perfected civil-contempt laws and arguments justifying them by wielding these laws against ordinary working people.

Remedy

Indefinite coercive incarceration for civil contempt should be legislatively abolished because it overdeters or invalidated because it is cruel and unusual punishment. Overdeterrence occurs when the criminal laws punish excessively. The basic concept is that a deterrent not only deters the intended conduct but similar or associated conduct. Oppression through overdeterrence occurs if citizens could be imprisoned for life for stealing a piece of bread: some people would starve instead of committing petty theft. Punishment always harms even when it successfully deters, and it inflicts harm not only on the defendant but on society. Increasing the punishment for criminal contempt causes defendants to interpret injunctions broadly when they should be narrowly tailored. True, the overdeterrent effect is less deadly when the punishment is coercive instead of punitive, as the defendant is free to reverse course and suffer no more. With coercive detention, the main overdeterrence effect overenhances the court's power to get what it wants.

Holding punishment to moderate levels avoids oppression: moderately punitive laws don't scare citizens into complying more than society needs, and flouting the law sometimes benefits society. Just as acceptable laws become unacceptable when they excessively pressure citizens, so coercive detention can force excessive compliance. In the Gompers case, it would have been oppressive for the employer to break the back of the boycott through the courts; better that Gompers not suffer an infinite potential punishment; better that he be allowed to try to distribute his pamphlets in defiance than collapse before the will of a single judge. In a case like Richard Fine's in California, it doesn't promote democracy to allow a court to apply all necessary coercion to force financial disclosure. Better to leave Fine room to protect his principles and his privacy. Let the punishment fit the crime; let coercion fit its end.

Criminal contempt caps the justifiable deterrent force for civil contempt. If a year's incarceration is the longest punishment justifiable for acts of contempt, then one year is the limit on coercive confinement before it overdeters. The amount of justified coercive punishment can be no more than the amount of justified punitive punishment because coercive-punishment's immediacy and certainty augments its effectiveness.

The prospects for invalidating indefinite coercive detention are small: you won't find a judge who agrees that sometimes flouting a judge's lawful orders is in order. In judges' minds, concepts of overdeterrence can't apply to contempt remedies. Except when the legislature intervenes, courts swallow absurdity and embrace unlimited detention.

Coercive detention for more than a year is legally absurd, and under the Eighth Amendment, the limit for coercive detention should be set no higher than three months, after which coercive detention changes from a deprivation to the deliberate infliction of suffering. Coercive detention has no rehabilitative goals which could justify it, and at a point, holding a prisoner becomes nothing more than inflicting sufficient misery to induce compliance. Indefinite coercive detention is torture.

8.0 Legal ethics: Agential versus moralistic

Ethical rules governing legal practice are framework considerations in that they help determine broadly what cases are brought to trial, what arguments are brought to bear, and with what effect they are presented to court or jury. Professional ethics purport to have two purposes—public protection and consumer protection—but ethical rules for the practice of law should protect lawyers' clients exclusively. The law should eschew contra-agential ethics; ethics that purport to serve the general public thwart loyal service to lawyers' client principals. Since legal representation is a prerequisite to parties' exercising various fundamental rights, provisions curtailing attorney responsiveness to client interests compromise litigants' fundamental rights.

Contra-agential ethical rules for lawyers (also termed moralistic or prosocial ethics) harm both clients and lawyers. Contra-agential ethics encumber clients' rights to representation; the right to be heard is the most important component of due process, but most citizens lack the forensic skill to cause a court to have heard what they say. Permission to be heard is a popular right only when it includes representation by counsel, and additional rules applying to attorneys attenuate the right to appear by counsel. Ethical rules punishing attorneys' litigation misconduct by career loss further empower the judges over litigants by controlling their attorneys and dampening attorney aggressiveness. These rules include the harsh penalties for disobedience to court orders, rules that make a lawyer tremble at testing an injunction's validity.

Contra-agential ethics fare no better from the lawyer's standpoint; they defame lawyers as unethical for infractions that don't involve ethical lapses. An attorney's ethical duties follow from the requirements of the attorney role, a role that must be one of strict agency to respect the represented party's right to be heard; strict-agency's requirements dictate the ethical imperatives: loyalty to the agent's principal and truthfulness in matters of the agency. A lawyer's ethical character is reflected in his obedience to these ethical mandates, not to court orders. Contra-agential ethics taint lawyers with allegations of moral turpitude when the offense consists of acts that are ethically neutral, such as violating administrative rules, or even ethically exemplary, such as defying judicial authority at personal risk to protect a client.

2.1.1 Abolish vexatious-litigant security deposits

Like every witch-hunt, the persecution of the litigious damages general jurisprudence. In California the judiciary's self-serving ratification of the vexatious litigant statute's security-deposit procedures has done the worst damage. The statute permits the court or other party to move to condition the vexatious litigant's right to prosecute the action on his posting a security deposit to cover the opposing party's reasonable expenses, including attorney fees. To grant the motion for a security deposit, the court must find that the plaintiff doesn't have any reasonable probability for success on the merits. In the California Supreme Court case dealing with the provision's constitutionality, the court erroneously held the trial court can weigh the evidence to condition civil trials on vexatious-litigation security deposits without violating California's state-constitutional right to trial by jury. (See Moran v. Murtaugh Miller Meyer & Nelson (2007) 40 Cal.4th 780.)

The right to a jury trial is the strongest argument against allowing the court to weigh the evidence at a summary proceeding, but the Supreme Court was cursory in analysis and fatuous in conclusion: "The grant of a [motion for plaintiff to post security] does not preclude a trial; it merely requires a plaintiff to post security." (Moran, supra.) The court ignores settled law holding that "while the Legislature can adopt reasonable procedural requirements for the enforcement of [a self-enforcing constitutional right such as to a jury trial], it can do nothing which would unreasonably curtail or impair it." (Vinnicombe v. State (1959) 172 Cal.App.2d 54, 56.)

California's anti-SLAPP statute provides for a summary procedure for lawsuits potentially aimed at inhibiting exercise of basic rights. A SLAPP suit is a kind of vexatious lawsuit, and other potentially vexatious lawsuits shouldn't face obstacles exceeding those imposed by the anti-SLAPP statute, which prohibits weighing the evidence. The most coherent way to adjudicate potentially vexatious litigation summarily is to expand the anti-SLAPP statute to include lawsuits that are demonstrably part of a vexatious pattern.

7.1 Is “same-sex marriage” coherent?

In re Marriage Cases (2008) 43 Cal.4th 757, Chief Justice George designed a silly argument to claim that limiting marriage to heterosexual couplings violated a fundamental California right: the right to marry. California courts recognized a fundamental right to marry when they invalidated a Jim Crow law against interracial marriage. Held, the fundamental right to marriage can't be abridged. Blacks had been told that they already had the right to marry–other blacks—but limiting whom they could marry restricted the exercise of a fundamental right. (Perez v. Sharp (1948) 32 Cal.2d 711). In Perez, no question existed that the interracial relationship the court sanctioned was properly termed "marriage." A right to x is limited precisely and expressly by x's definition, an impediment to transposing the logic of black marital integrationism to same-sex marriage. If marriage means pair bonding between oppositely gendered persons, one can't derive from a right to "marriage" the marital prerogative for persons identically gendered. Limiting the right to marry by the definition of the term "marry" itself isn't artificial. A legal right to "marry" can only follow the definition of "marry."

The semantics of "marriage" don't determine the civil rights of gays. To argue same-sex marriage based on a right to marriage is absurd: marriage means opposite-sex bondings; to argue against a right to same-sex marriage merely because a "right to marry" cannot justify it is unwarranted. If gays should be allowed to enter into official "marriages" because legal right so requires, the right in question is not the right to "marry." The argument required of Chief Justice George is more complicated than demonstrating "marriage" is a right: he needs to infer a broader right which the right to marry merely expresses. This broader right, not Chief Justice George's tortured justification, is same-sex marriage's vision. To construct this broader right, the gay visionary purifies the ordinary meaning of the term "marriage"—which includes two elements: pair bonding and sexual complementarity—to a pair-bonding core, notwithstanding that by ordinary meaning sexual complementarity is a stronger requirement than pair bonding, polygamy and group marriage forms of "marriage" stretching the terms only slightly. Ordinary language's emphasis on sexual complementarity bespeaks an ordinary-meaning definition of "marriage" centered on bringing up children born of the supporting parents; but gay visionaries celebrate a different virtue, the dyadic bond combining sex, economic responsibility, and affection.

A right for gays to marry each other needn't derive, as a matter of logic, from principles that mention "marriage," but Chief Justice George must maintain that when courts held that people have the right to "marry" they actually meant state recognition for pair-bonding relationships identical to marriage except not featuring sexual complementarity. This concept of the sanctity of marriage-like pair bonding is the same-sex marriage vision. What deserve protection on this view are long-term relationships based in prototype on romantic love, combining sexual and economic commitment. Advocates hold that celebrating and protecting this relationship is what truly justifies upholding marriage as a legal status.

When fleshed out, the same-sex marriage issue, a question of social vision, isn't judicial, and the logical leaps are not merely legal. Psychology hasn't seriously addressed whether the affective core of same-sex pair bonding is identical to that prototypically found in sexually complementary relationships.

7.0 “In re marriage cases” and the problem of nondiscrete suspect classes

Starting in the late 30s, U.S. jurisdictions have favored — as the framework mechanism for prioritizing equal-protection rights — delineating suspect classes, whose interests call for searching scrutiny and a presumption of impropriety when laws specifically disadvantage them. The California decision In re Marriage Cases (2008) 43 Cal.4th 757, better known for briefly providing gays with the option of intermarriage, again raised issues concerning how suspect classes are determined. Does admitting gays to the status of a suspect class expand the equal protection of the law, or does it dilute "suspect class," hence, protections offered to the classic exemplars, race and national origin?


While political reasons explain why gays are now a suspect class in California but aren't even entitled to intermediate scrutiny under federal law, the difference between California state law and federal law provides another vantage for comparison. The correct application of the standards each jurisdiction accepts rationally explains the different conclusions, without withdrawing the question of which criterion is sounder.


The federal criteria for a suspect class are usually stated as:

(1) A discrete and insular minority who (2) possess an immutable trait (3) share a history of discrimination, and (4) are powerless to protect themselves via the political process.

These contrast with the California criteria:

(1) An immutable trait with (2) no relationship to a person's ability to perform or contribute to society and (3) associated with a stigma of inferiority and second-class citizenship.

The critical difference — one often ignored and seldom subject to exegesis — is that California lacks the requirement for a suspect class that the minority discriminated against must be "discrete;" assessing California constitutional procedure requires analyzing the meaning and function of this federal requirement. A discrete class is one well defined to set it off from other classes; it has sharp boundaries, rather than being continuous and subtly grading into other categories. Race, for example, is a discrete class, at least formally speaking, because no question of degree is involved in answering whether a person belongs to a given race. As supposedly biological groups, racial categories are not distinct. Not only are races not well-defined separate groups, but a person may be said to belong to a race by degree: one may said, for instance, to be 1/8 black. But as a social category, race is treated as distinct. Races in use typically have a decisive criterion, such as the rule that with any ascertainable black lineage is black.


Why aren't short people a suspect class? Research attests to the disadvantages of being short, attests to the prejudice of the taller population and even of the short themselves against the short of stature. Short people do not form a discrete class. No boundary demarcates the merely height challenged from the egregiously diminutive. The nondiscreteness of a class such as short people is significant for constitutional analysis for two reasons. First, a nondiscrete category will be less apt to be subject to serious discrimination because the very short will tend to find political allies among the shortish. The very short might indeed be subject to serious animus if they were isolated from their similars. The prejudice against a man 5 feet six inches may represent only a statistical trend. But might a man 4 feet six inches often be perceived as strange, even creepy? But the absence of any point where degree changes to kind makes it unlikely that the very short will be singled out for persecution. An attack on the 4-feet-six inchers will threaten the 5-feet-two inchers, of whom there might be many enough to preclude the persecution of the first group. Second, short people are hard to protect in the unlikely circumstance they are the object of persecution. Because short people aren't a discrete class, protection offered to those discriminated against by height knows no natural limits. A six footer might make the case that a person 6-feet-6 inches received unjustified favored treatment based on the irrational stereotype that tall people are smarter or in other ways better.


Discreteness's importance as a criterion for suspect classes is apparent when discreteness is greater than for height but less than for race or national origin. City of Cleburne v. Cleburne Living Center considered whether denial of a permit to build housing for the mentally retarded violates their right to equal protection. The City of Cleburne court claimed to apply a rational-basis test for equal protection, but the case provides the kind of searching scrutiny that would be warranted only if the mentally retarded were a suspect class or, at least, entitled to heightened scrutiny. The court seemed unable to make up its mind because of the borderline status of mental retardation respecting class discreteness. (See City of Cleburne v. Cleburne Living Center (1985) 473 U.S. 432.) Mental retardation might be thought the nondiscrete low end of the intelligence continuum, so that prejudice against the retarded is checked in its implementation by numerous nonretarded dullards who might be threatened by discrimination against the retarded, but mental retardation means more than having a low IQ; psychologists have tried to define a class with more definite functional significance: a diagnosis of mental retardation represents a judgment that the person's mental equipment isn't good enough for surviving independently. The mentally retarded are arguably a discrete class.


Discreteness's importance is highlighted by considering the constitutional protection (not) afforded the impoverished: does impoverishment or indigence create a suspect class? While American law's nonchalance about the disparate financial resources of parties cries out for correction, the impoverished are unlikely to be recognized as a suspect class, even if the political prospects were more favorable. One's ability to legally defend one's rights depends in continuous fashion on one's financial resources. Carving out a discrete class of indigent citizens deserving of strict or heightened scrutiny founders on the absence of any natural boundaries circumscribing those legally disadvantaged due to poverty.


If a gene caused homosexuality, gays would form a discrete class, a consideration that may go far to explain the unlikely popularity of the biological-determinist theory among gay-rights supporters. The scientific reality is different. As Freud observed and Masters and Johnson demonstrated, humanity is inherently bisexual; what differs is the weight a person's constitution and personality allocates to adult sexuality's heterosexual and homosexual components. No discrete population of "homosexuals" exists; only varying degrees of orientational masculinity and femininity. To protect gays as a suspect class must entail protecting everyone against discrimination by the more masculine (speaking of males). Homosexuality's continuity also protects against discrimination. An attack on the flagrantly gay meets opposition from the somewhat gay, who sense that hypermasculinity run amuck would compromise their interests.


Yet, reality seems otherwise. There seems a discrete group of gays intent on marrying one another, who identify themselves as gay and thus seem to form a discrete class. This appearance is the key to understanding one of the main reasons the constitution cannot effectively protect against discrimination to a nondiscrete class. A discrete group identifying itself as "gay" no doubt exists, but the discreteness derives not from a qualitative difference between homosexuals and heterosexuals but from the discreteness of the very category consisting of those identifying themselves with the label. Protecting this category as a suspect class not only bumps up against the requirement of immutability. It also contradicts the requirement that membership in a class deemed protected not raise rational questions about group membership's relevance to the societal contribution of the group members.

6.0 Constitutional interpretation and the scope of birthright citizenship

Who counts as a citizen of the country is a framework question. Does the 14^th Amendment confer birthright citizenship on the sons and daughters of all immigrants, even those illegally present? Or does the ambiguity of the concept of "jurisdiction" leave room for laws defining natural citizenship less broadly? The puzzle's solution depends on what method of constitutional interpretation you apply.

Our issue is interpreting the first clause of Section 1 of the 14^th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The ambiguity of "jurisdiction"—a context-bound concept in U.S. law—sets the problem. I earlier concluded that textualist interpretation offers much to recommend jurisprudentially, as it comports with American Constitutionalism. Using essentially textualist methods, the U. S. Supreme Court held for the broadest birthright-citizenship in dicta in the thorough opinion United States v. Wong Kim Ark (1898) 169 U.S. 649. The Wong Kim Ark court found the term's meaning authoritatively interpreted in the earlier decision The Exchange (1812) 7 Cranch. 116. (See Wong Kim Ark, supra at p. 683.) Note the rule-governed, text-based nature of the interpretation in this passage:

By the civil rights act of 1866, 'all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,' were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, it can hardly be doubted that the words of that act, 'not subject to any foreign power,' were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright; or, for instance, for the first time in our history, to deny the right of citizenship to native-born children or foreign white parents not in the diplomatic service of their own country, nor in hostile occupation of part of our territory. But any possible doubt in this regard was removed when the negative words of the civil rights act, 'not subject to any foreign power,' gave way, in the fourteenth amendment of the constitution, to the affirmative words, 'subject to the jurisdiction of the United States.'

(Wong Kim Ark, supra at p. 688.)

Notice the use of analytic rules, a kind of common law of interpretation. In construing "jurisdiction" the court solves the puzzle like an equation, substituting a definition obtained from an earlier case. This is excellent textual analysis, but as authority, it is dicta: Wong Kim Ark found that one foreigners' son was not a citizen because he was born outside the U.S.

The Wong Kim Ark dictum wouldn't deter an Originalist; he observes that the 14^th Amendment, designed to grant citizenship to slaves, did not have the offspring of illegal immigrants in contemplation: the United States hadn't yet passed any immigration laws. Strong Originalists are loathe to restrict the power of Congress when the legislation forbidden was outside the originators' contemplation, but omission of any protection not in the original contemplation is an extreme Originalist variant, which struggles hopelessly against vagueness, as it supplies no guidance on how much information about a future event must fall outside the originators' anticipation to disqualify. Professor Richard A. Posner proposed a more moderate Originalism, according to which the judge must place himself in the position of the originators: what would the originators advocate if they could foresee the new conditions, assuming the least historical modification yet placing the matter in the judge's purview. Using this approach, a court could imagine what the originators would have provided if immigration restrictions had existed at the time of the 14th Amendment's promulgation. An Originalist judge would likely rule that the patriotic originators, having won a war to preserve the Union, would not have intended to provide a law-breaking incentive which yielded no offsetting gain for the extant inhabitants. Such a judge would be likely to rule that an illegal immigrant's child is not—in the sense the proponents and ratifiers intended—born within the "jurisdiction" of the United States.

5.15 Conclusion. So, how is judicial statutory interpretation possible in the absence of a consensual interpretive theory?

(Fifteenth in series: The interpretation of statutes and the denial of judges' powers.)

To sum up this investigation — what's the solution to the interpretive enigma: judges agree on interpretations, despite disagreeing on what a legal interpreter should do? The solution consists of two constraints: the logically inevitable common law of statutory interpretation and the politically necessitated convergence of judicial interpretations.

The common law of interpretation — the reigning theory articulating a legal culture's interpretive practices — includes such loose and defeasible constraints like the maxims of construction. Other examples from the common law of statutory interpretation are some jurisdictions' rules governing when "shall" is construed as "must" versus "may." The common law of statutory interpretation is underarticulated.

Why has the important role of the common law in statutory interpretation suffered neglect, this obvious concept sometimes rejected on jurisprudential principle? Scholars underestimate the interpretive common laws' constraint because it works in tandem with a second constraint, one not necessarily within jurists' awareness. Scholars ignore that constitutions can cause themselves to be construed a certain way without the construction being implied by its provisions. The historical tendency for interpretations to converge in line with the constitution's structural designations is proposed an example of how a constitution influences its long-term construction.

5.14 Checks and Balances at Trial

(For best understanding read the companion kanBARoo court 68th Installment first: No to Victim-Impact Statements.)

(Fourteenth in series: The interpretation of statutes and the denial of judges' powers.)

The system of checks and balances at the core of the American constitutional system penetrates the government structure and, increasingly, legal categories are conceived in its terms. Does the system expand even to legal domains whose constitutional logic demands other principles? Applying balancing concepts to rights where rights are absurd — asserting the so-called rights of victims of crime — may be an example.

The oxymoronic victims'-rights movement asserts the rights of the victims of crime against criminal defendants, although the U.S. Constitution provides no victims' rights and the logic of giving criminal defendants rights' protection, when defendants must battle an opponent as powerful as the state, doesn't logically generalize to supplying victims — who are not even the defendants' legal adversaries — parallel rights. Yet, the 50 states and federal government, under intense political pressure, have granted victims the right to stage diatribes against criminal defendants in noncapital cases, in 38 states in capital cases, for which the U.S. Supreme Court holds provisions for victim-impact statements are valid, overturning two of its decisions taken within five years.

The opinions of the justices who legitimatize victim-impact statements are largely based on balancing the rights of defendants to introduce evidence in mitigation. The dissenting justices' opinions in the cases overturned are striking in demonstrating how far astray the checking-and-balancing framework can lead when misapplied.

Consider Justice White's dissent in Booth v. Maryland:

If anything, I would think that victim impact statements are particularly appropriate evidence in capital sentencing hearings: the State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in [citation] by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.

(Booth v. Maryland (1987) 482 U.S. 496, 517 [dis. opn. White, J.])

Or consider Justice Scalia's dissent in the same case:

To require, as we have, that all mitigating factors which render capital punishment a harsh penalty in the particular case be placed before the sentencing authority, while simultaneously requiring, as we do today, that evidence of much of the human suffering the defendant has inflicted be suppressed, is in effect to prescribe a debate on the appropriateness of the capital penalty with one side muted.

(Booth v. Maryland, supra at p. 520 [dis. opn. Scalia, J.].)

Justices Scalia, White, and O'Connor, who joined the opinions, make a balancing argument in which victim-impact statements balance mitigating evidence, despite the wholly different constitutional logic applying to victim and criminal defendant.

5.13 Constitutionalism is secessionist

(Thirteenth in series: The interpretation of statutes and the denial of judges' powers.)

The obvious reason to think secession is Constitutionalism's weakest point is that's where Constitutionalism almost broke. The Federal government won the Civil War militarily and morally, but neither victory meant the North had the better legal theory. Secessionist movements continue to lurk at the social margins because Constitutionalism's logic favors the right of states to secede.

The U.S. Constitution contains vertical as well as horizontal checks and balances, the federal government balanced by the states. The federal government can preempt the states in distinct domains, but outside, the States have exclusive jurisdiction. Yet, the system is ultimately unbalanced, in that a branch of the federal government resolves conflicts between the states and the federal government. Unlike other checks, where each evokes a potential countercheck, the states can't answer an adverse decision by the U.S. Supreme Court. The Supreme Court may be sympathetic to states' rights, but the long-run trend is in the opposite direction to the extent the structural factor determines the drift.

The federal government continually gains power at the states' expense. To note this trend is not to extol states' rights or to maintain they beneficially check the federal government but only to mention a consequence of structural imbalance; nor is it to say that the imbalance — the structural deviation from blueprint — lacks adverse consequences. Missing for a true system of mutual checks is the necessary counterweight in a system where states' rights are supposed to endure: the right of the states to secede. That secessionism is simultaneously inimical to the Constitutional system points to Constitutionalism's peril, not its salvation, but secessionist movements' failure also shows that for general historical determinism legal structure isn't omnipotent.

5.12 Checking and balancing a country until it disintegrates

(Twelfth in series: The interpretation of statutes and the denial of judges' powers.)

Freed from Europe's traditional fetters, the American republic quickly invented its own. A pluralist society might seem ideal for instituting checks and balances, but pluralism undermines the Constitutionalist system. Pluralism causes the system to check the functioning of the system itself by stymying the process of one governmental branch stymying another. Each branch is itself subject to checks and balances, each balancing act involving so broad a mix of sectoral interests that the law of large numbers eliminates the possibility that government branches will ever differ deeply on policy.

Multiplicity of interests neutralizes the top levels of the system of checks and balances as these ramify downward. A system of checks and balances leads to the balancing test as the basic decisional mechanism in constitutional law because diverse substantive matters, such as rights, express a conflict between upstream institutions that the courts must keep in balance. Balancing tests ramify downward because of the mechanism's logic and the metaphor's power. If in deciding A you balance B against C, and over time changes in law and in society make C controversial, at that point it is natural to balance D and E as factors contributing to C. Changes in law and social circumstance require balancing at progressively lower levels: balancing ceases to be about balance if subordinate allocations disregard relative weight.

Checks and balances encourage interests to manipulate branches of government to maintain the status quo because interests can readily impose themselves, even when only mildly concerned. Interests are encouraged to feed omnivorously because their influence depends on relation to the decisionmaker, rather than issue relevance. Every controversy embroils numerous interests. The most powerful interests stay most powerful, but their influence is felt across the board, not selectively. The result engages the whole system and nullifies the topmost checks and balances.

With checks and balances in a politically sectoralized society, which the Founders vainly imagined capitalist pluralism could avoid, the government suffers paralysis when it must choose among options affecting numerous interests. Checks and balances in a politically sectoralized society translate as paralysis rather than caution, this in an era when the presumption against state action disappears. A different structural principle, notably parliamentary supremacy, differs in the engendered pattern of interested intervention. Government form is a source of American backwardness in areas such as infrastructure and education.

The Constitutional system chokes structural change — so, for example, the Government offers handouts to huge malfunctioning banks because achieving nationalization is systemically impossible — yet, Constitutionalism is so entrenched that a run around the law is unlikely. Fears arise that Constitutionalism will fracture at its weakest point — secession.

5.11 Rights: appendages of government structures

(Eleventh in series: The interpretation of statutes and the denial of judges' powers.)

If the drift of constitutional construction conforms to the structural blueprint, then what about protective, as opposed to structural, constitutional doctrines? The constitutional blueprint describes much more than government structure, but if checks and balances lies deep within a constitutional blueprint that emphasizes the division of powers between government branches, then civil rights come to comprise an aspect of the structural division of powers. Regardless of "original intent," interpretation will drift toward a structural alignment between rights and governmental branches, exercise of some rights strengthening one branch and diminishing another; the reverse for other rights. Some easy examples: the writ of habeas corpus strengthens the judicial branch and checks the executive branch; procedural due process checks both the executive and judiciary and strengthens the legislature.

Free speech at first blush seems less amenable to a structural interpretation, but the apparent complexity comes from the two separate free-speech components, each playing a different functional role. Restricting free speech means both regulating the viewpoints expressed (content restriction) and regulating the amount of speech allowed (time-place-and-manner restriction). Power's Congressional exercise depends on public opinion, as monolithic swings enhance the legislature's ability to act. Viewpoint discrimination preserves a monolithic public, as is in the legislative interest. Interpreting the First Amendment as primarily against viewpoint discrimination is encouraged by the First Amendment's targeting Congress for its directive: "Congress shall make no law ... abridging the freedom of speech ..." While Congress instinctively favors viewpoint discrimination, Congress naturally opposes restrictions decreasing the quantity of speech. A huge volume of speech nourishes the swings of unified opinion that empower Congress. The threats to speech quantity come primarily from the executive branch, too much speech upsetting administrative quietude.

A system of checks and balances gives rise to checks nested within other checks, division of the legislature into two houses a high-level example. In smaller grain, the same regulatory system emerges for the exercise of rights themselves, one right checking another. Although First Amendment law isn't cast in the form of a balancing test, the reigning clear-and-present danger test essentially involves balancing.

5.10 Against the writ of certiorari

(Tenth in series: The interpretation of statutes and the denial of judges' powers.)

Let's apply this theory of constitutional interpretation to the modern problem of nonprecedential opinions: oppositionists interpret the judicial power, limited to cases and controversies, as excluding the right to choose which cases make law. To apply the structure-function theory, first evaluate the interpretation for fit with the separation of powers and the system of checks and balances. The separation of powers departmentalizes the major government functions; so the interpretation offered strengthens separation of powers by drawing a firmer line between judicial and legislative functions. Giving government branches certain contrafunctional duties furthers the system of checks and balances, but checks and balances, partly countervailing against separation of powers, is harder to assess. The checking power must facilitate the intruding branch's stymying of other branches but not initiating their functions. The power to choose which cases are precedential is suitable for fostering an independent judicial agenda, not well tailored to block those of other branches: think of the presidential veto or congressional ratification of presidential appointments.

Nonprecedential opinions violate a core structural feature of the U.S. Constitution, but criticism hasn't been influential among most judges. To assess the practice's durability under the structure-function theory, you must also consider how far our other norms depart from constitutional blueprint. If even without the distortion introduced by nonprecedential opinions, the judiciary still assumes legislative functions, the pull toward reforming the practice diminishes. Seemingly unnoticed by the critics of unpublished opinions, the judiciary's usurpation of legislative functions long predated nonprecedenntial opinions. A still more important deviation from norms occurred when the Judges Act of 1925 gave the U.S. Supreme Court the power to choose its cases.

Case selection invokes a legislative function in the same way as nonprecedential opinions; choosing which cases to review is even further removed from deciding cases and controversies than deciding which cases to publish. The legislative nature of nonprecedential cases may seem greater because delaying the decision allows the court to base precedent creation on firmer nonjudicial information. Although the court must decide before hearing the case, and it doesn't know how the case will go, the appellate courts do well in prediction. The U.S. Supreme Court reverses 75% of cases it selects for review, a good percentage if the court wants to make law. When a court selects its cases, it makes a restrictive legislative selection without even hearing the other cases.

Little fanfare accompanied huge change introduced by the Judges Act, which Chief Justice William Howard Taft pushed for efficiency's sake. Lawyers missed the judicial-expansionist nature of the writ of certiorari because the Supreme Court was almost unreservedly popular during this politically reactionary era, and commentators viewed the Judges Act as decreasing the Supreme Court's power, Taft hardly being an "activist." The Judges Act of 1925 gives opponents of the political power of unrepresentative officials today an obstacle and an avenue seldom mentioned. Congress should strip the Supreme Court of its power to select cases. Limiting Supreme Court review to cases which show a conflict between federal circuits is one alternative, provided the Supreme Court must review all conflicting cases where a party appeals from the Court of Appeals. The Supreme Court's power to select cases for review burdens democracy at the same time as it conflicts with constitutionalism. Politicians who tempt Supreme Court justices to exercise legislative power while criticizing them for pursuing a political agenda act as ineffectually or hypocritically as U.S. bank regulators.

5.9 The common law of statutory and constitutional construction

(Ninth in series: The interpretation of statutes and the denial of judges' powers.)

Can we really avoid a deliberative theory? Perplexity comes from the apparent incoherence of interpretation without defined constraints. "What are we searching for when we construe a statute [or a constitutional provision]," asks Justice Scalia in Common-law Courts in a Civil-Law system: The Role of United States Federal Courts in Interpreting the Constitution and Laws. From the perspective of a legal formalist like Justice Scalia, the absence of an ultimate objective — of the whole point of the interpretive enterprise — is deeply disturbing and fatal indictment of contemporary jurisprudence.

Justice Scalia claims that the common law method of developing the law is restricted to certain traditional fields like torts, contracts, and property. The common law has become irrelevant to the bulk of legal rules, and, today, the courts must construe statutes, instead of creating rules of law in common-law fashion. Even assuming the dubious notion of statutory interpretation without rule creation, Justice Scalia refrains from analyzing interpretive-principle creation — whether canonical or local, express or tacit.

Justice Scalia and most theorists ignore the ongoing common-law evolution of interpretive rules because they think interpretive principles and small-scale inference patterns don't bind as precedent, but terming the interpretive methods narrow, fact-specific, and defeasible would be more precise than terming them nonprecedential. Commentators who say interpretive methods lack even subjective precedential force conceive "methods" broadly, as though these must apply with the same scope as deliberative theories of interpretation, like Interpretivism and Originalism: theories that describe process, rather than outcome.

The deliberative theories bear the same relationship to narrow-scope and defeasible principles of interpretation as statutory law bears to the common law. Both replace tentative standards amenable to piecemeal evolution—having determinate rules and a reliable evolutionary mechanism—with a method perfectible in principle and dependent on consciously taken singular acts, which are sometimes broad in impact. Justice Scalia, exponent of codification, is consistent in also embracing the interpretive analog of codification, broad deliberative theory of interpretation; but the principles of statutory and constitutional construction are subject to common-law development because most judges resist interpretive theories.

5.8 Constitutions are inherently meaningless

(Eighth in series: The interpretation of statutes and the denial of judges' powers.)

The present theory expounds a manner of Constitutional construction as a trend issuing from the Constitution's structural features and their central role in using the Constitution as a government blueprint. For the constitution to produce a workable government, it must cause, not recommend, obedience to its structural design and the goals normally served by these design features. This theory differs from the usual run of theories, such as Originalism and Interpretivism, in absence of mandate. The only thing to be said for relying on this structure-function theory of interpretation in performing interpretation is that it will help you pick the interpretation with some likelihood of being deemed right in the long-term. Arguments tend to gain force to the extent that they line up with the predictions the theory makes. Described is the only theory needed to solve the problem for a theory of interpretation, the interpretive enigma.

Not merely the only theory we need, it is as much of a theory as we can have. The constitutions of some jurisdictions, containing clauses instructing on the manner of interpreting the constitution, show why we can't have a deliberative theory. Express provisions often instruct to look first to the ordinary meaning of the terms and stop there in the absence of ambiguity. Interpreters of constitutions without explicit provision for their interpretation usually arrive at this conclusion, and it doesn't rescue them from interpretive conflict; this provision could increase interpretive-method differences because it causes an explicit focus on a particularly subtle meta-theoretic issue. Whether it increases or decreases the interpretive variance, it doesn't eliminate or trivialize it. Any written standard must be interpreted. It is fundamentally in a position no different from other constitutional provisions.

Sometimes theorists maintain that a method of interpretation is implicit in having a written constitution. Since the constitution enacts words for the general public obedience, these theorists say, having a written constitution implicitly means using a textualist method of interpretation, but a text can't adequately dictate methods to interpreters. A common rejoinder points out that the people enacted the text, not some associated meanings or not the intent behind the text, and so, if the Framers had wanted the country to look to their motives, they could have said so in the text. The rejoinder begs the question. Provisions were enacted; but to construe the voting ritual as an endorsement of the text may seem natural, yet it is logically arbitrary.

Why does it seem natural to interpret a provision as equivalent to its text? Not because in interpreting cultural products in general we impose these limits. When a drillmaster counts the march beat, the numbers or other sounds he uses are beside the point. To interpret is to assign meaning relative to current purposes channeled by habit; interpreting laws by the public meaning of their text is natural because of myriad legal habits. A constitution means nothing except in a culture prepared to receive it, and it means what it does only because of the manner of reception given by habits of thought.

If a culture prepared to interpret the constitution preconditions its playing an actual governing role, a constitution will produce workable government only to the extent that interpreters are impelled to choose an interpretation that reliably ensures sufficiently coherent development. The constitution's actual provisions must cause their "correct" interpretation by means other than direct mandate or implicit direction.

5.7 Exploring the Interpretive Enigma

(Seventh in series: The interpretation of statutes and the denial of judges' powers.)

The interpretive enigma shows that it is impossible to interpret the constitution without a theory of constitutional interpretation. What it doesn't show is that there must be a unique reigning theory of interpretation. A different theory for different circumstances remains within the model. If courts use different theories depending on circumstances, the conceptual device assigning situation to theory is itself an overarching theory. Rather than choosing a theory based on a shared rationality, judges might choose theories arbitrarily, or they might use different overarching theories. Then no underlying idealization would depict the causal propensities in interpretive discourse.

How can we distinguish these conditions? If judges used different theories of constitutional interpretation, over time interpretations of the constitution would increasingly diverge. Increasingly, as schools of thought multiply, any consensus on the meaning of constitutional provisions would thin unless matters change with stare decisis. Broad precedential holdings may replace constitutional amendment in clarifying the constitution. The convergence new constraints impelled would offset the divergence of views, but this solution presupposes what it tries to explain, the progressive clarification of text by interpretation, a broad amendment-like holding requiring interpretation no less than the provision it construes. Precedent doesn't solve the clarification problem if precedential holdings also require interpretation, and the need to revisit interpretations seems too rare in comparison to construing the underlying text. The progression implies that the constitution is not only adapted to new circumstances but is better understood or at least more narrowly understood, so it is more reliably applied as it is further interpreted.

The underlying features that require consistent application to create a stable system are predominantly the formal functional characteristics of the structures the Constitution creates. Checks and balances and separation of powers are among the key formal functions of U.S. Constitutional structures.

5.6 Adjudicating without a theory of Constitutional interpretation

(Sixth in The interpretation of statutes and the denial of judges' power series.)

Substantive Constitutional questions are eventually settled semi-permanently, but methods of Constitutional interpretation are rarely settled. This order of business is irrational because fundamental disagreement about interpretive methods obstructs judicial debate about specific provisions' meaning. How can you debate what the Constitution means when you don't agree about what it means for the Constitution to "mean" something?

One proposed pragmatist solution (Mitchell N. Berman, Originalism is Bunk (2009) 84 N.Y.U. L. Rev. 1; hat tip, Legal Theory Blog) illustrates the problem besetting pluralist resolutions of the problems of interpretation. As a description of much of the judiciary's workings, this account seems approximately right, but it doesn't solve the interpretive enigma: how can judges debate Constitutional meaning when they disagree about the basic nature of the meaning they're trying to elucidate? If the courts solve the problem of interpretation in tandem with the substantive issue presented, as Berman argues, what interpretive method do the courts use for that amalgamated determination?

The point is easiest to understand from a hypothetical Berman provides concerning a non-Constitutional matter that yet addresses how the court might select interpretive methods contextually. (Berman, Originalism is Bunk, supra, at p. 45.) A radio station offers a reward to the first call-ins after 12 a.m., which the offeror believed means noon. Listeners satisfying the literal (earlier) midnight opening sue based on public meaning. To avoid considerations of equity unrelated to meaning, imagine the governing statute refers simply to "meaning." Should the court respect the offeror's meaning or the public meaning?

Claims Berman, the court doesn't need an interpretive theory to read "meaning" as public meaning because it is least disappointing to the rightful expectations of participants and most consistent with the function of announcements, but what makes those factors criterial? A tacit interpretive theory leads Berman to select interpretive methods according to the public purpose of the message and the expectations of the recipients. A pragmatist standard, it elevates short-term satisfaction and sets shallow goals achievable with certainty. (An alternative standard might be formalist and seek to align the meaning of "meaning" as used throughout the code.) Berman's pragmatist stance injects judicial preferences into the decision, although doing so in the hypothetical is relatively innocuous. Berman's approach in principle amounts to a form of result-driven adjudication, so universally rejected (again, in principle) and deemed so insulting as an accusation that in some jurisdictions an attorney may be sanctioned for disrespect after so describing a decision.

5.5 Textualism = American Constitutionalism

(Fifth in The interpretation of statutes and the denial of judges' power series.)

Textualism better than purposivism represents the American republican form of government, a system of checks and balances with the judiciary co-equal, because textualism supplies the courts with a basis for substantive opposition to the legislature. Textualism's natural fit with American constitutionalism was obscured after the demise of natural-law jurisprudence because the Supreme Court's resistance to progress was broken by an executive and legislative coalition, coercing the judiciary to speak the purposivist language of legislative supremacy. Not that the outcome was unfortunate: the point is that this deviation from constitutional blueprint was an unreliable basis for political planning. That the judiciary would eventually find a substitute for natural law was always likely, maybe inevitable.

If the courts are to check and balance the legislature, their opinions must have a source of legitimatization. The American constitution doesn't envision courts supplanting the legislature by the legislature's own devices, yet the constitution does envision that the judiciary exercise substantive checks and balances. When the Framers debated the constitution, they defended the independent judiciary because it could refuse to apply oppressive or unwise laws, a point Hamilton argued in the language of his time's natural-law jurisprudence. Today the only basis for the courts to disagree with the legislature outside the narrow set of constitutional cases is to oppose statutory text to legislative will. Textualism substitutes for conventional natural law the modern imperative to say what you mean.

Adherence to textualism doesn't let the courts veto any legislation that it thinks "oppressive or unwise," but laws that don't say what they mean are themselves a form of oppression. Such laws not only fail to inform citizens of their duties but allow the legislature to achieve indirectly what it would be ashamed to seek expressly. Misdescribing its intentions can also help the legislature engage in self-deception, so it may oppress by seemingly expressing the opposite.

When natural law broke down under F.D.R.'s direct political attack, the positivists' theoretical fire, and science's siege of theism's credibility, the will of the people was substituted for natural law, but it was a poor substitute. A unitary popular will, manifested in the decisions of elected representatives, can hardly check and balance itself. In retreat waving a purposivist white flag, the courts submitted to domination by other branches of government — at least when compared to the commandingly doctrinal laissez-faire economics that preceded. While the longevity of this arrangement proves the limited strength of interpretation's migratory tendency toward juridical coherence, it also illustrates that tendency. The eventual textualist reversal of direction occurred because the constitutional system allowed — was inherently conducive to — the courts' being much more than Congress's faithful servant. Textualism gave the courts room to assert independent power.

In principle textualism's initial form expanded judicial power beyond constitutional boundaries by providing few real constraints on interpretation, but increasingly textualism has become more restrained, almost merging with a restrained form of purposivism on its near left. This is its present internally driven trend, corresponding to a better fit with the constitutional blueprint and its purposes.

Next: The practical significance of the U.S. Constitution's democratic shortcomings.

5.4 Correctness and Legal Efficacy

(Fourth in The interpretation of statutes and the denial of judges' power series.)

The first concern when evaluating textualism and purposivism against constitutional imperatives is whether talk of "the correct interpretation of constitutions and statutes" is even meaningful. Even if comparison against an objective standard is possible, why does it matter whether the interpretation is correct when the better policy contravenes the so-called correct interpretation? As I am more enthusiastic about the dictates of democracy than the specifics of the U.S. Constitution, what significance should it have, as I will claim, that a form of textualism better expresses constitutional imperatives? My hypothesis is that the correct interpretation of the constitution is significant not because constitutional statutes make better policy but because all else being equal the sequence of judicial interpretations tends to approach the constitutionally correct interpretation. The underlying metaphor is of the correct interpretation representing a constant force acting, like gravity, on the statute's interpretation, and, also like gravity, the force increases as the interpretation enters the correct interpretation's neighborhood.

This interpretive improvement takes place both by assimilation and accommodation. The accommodative version is straightforward. The law moves progressively closer to the correct interpretation. In the assimilative convergence, other laws are interpreted based on the (initially wrong) interpretation, so that what was legally wrong becomes right, as law establishes coherence with (initial) error, creating new masses counteracting the original gravitation pull.

Brown v. Board of Education illustrates by containing divergent possibilities. After Plessey v. Ferguson, separate but equal became entrenched throughout the law, and the segregationist interpretation of the 14th amendment became more legally right with time, not less right, like a "Living Constitutionalist" might say. The interpretation yet remained inferior to the plain-meaning interpretation: separate is not equal because separate means different with respect to spatial disposition, and equal means the same in every respect. When an interpretation really is true by plain meaning, almost nothing can overcome it. So when there intervened other circumstances — such as international revulsion at American racism — seizing on the integrationist interpretation was easy, even though court unanimity allowed only a superficial empirical argument, rather than a broadly applicable (and more correct) plain-meaning one.

Correct interpretations should exert an attractive force that actual law approaches at the limit, but the question of degree can't be resolved at so general level of argument. The degree of interpretive pull the correct view exerts depends partly on the push of the correct method: will judges converge on a version of textualism? We now turn to why the U.S. Constitution is textualist.

5.3 Lessons from the civil law

(Third in The interpretation of statutes and the denial of judges' power series.)

American doctrine of government division is based on two theories: separation of powers and checks and balances. Often presented as complementary, the two contain tensions, even contradictions, for government branches can check each other only by exercising alien functions. The executive checks the legislature partly by encroaching on legislative terrain with the veto power. Congress checks the executive by disapproving appropriations for executive functions, intruding on their exercise. Congress checks the judiciary by over-ruling judicial interpretations by writing new laws re-interpreting old ones. The executive checks the judiciary because its discretion in execution contains more than a modicum of interpretation.

The courts interpret and construe the law to check and balance both the legislature and the executive. The U.S. Constitutional system envisions the courts an active participant in the tripartite division of power. A judiciary rigorously limited to applying the law wouldn't satisfy the constitution's basic requirements, as wouldn't an executive limited to ministerial acts. American constitutionalism here conflicts with democratic ideology: the reason American judges are both respected and reviled. This conflict between American constitutionalism and democracy provides the final analogy for understanding what purposivism and textualism imply about a functioning government, before we look at the conflict itself more directly.

We seek the consequences of this intra-ideological conflict by taking a natural experiment where legislative supremacy is uncontradicted by checking or balancing: the civil-law systems of France, Italy, and Germany. The civil-law's version of separation of powers arose as doctrine after the French Revolution vacated all encroachments on the legislature's exclusive right to legislate. The civil codes aspired to certainty and completeness; interpretation was to be avoided, but, if necessary, the courts were supposed to ask the legislature for guidance. Interpretation, alas, was the norm; despite best efforts, the cases arising are seldom anticipated when legislation is passed. The civil law developed institutions where the courts shamefacedly interpreted the law and unofficially even established precedents. A typical civil code contains instructions to interpret the law based on text and legislative intent; if uncertainties remain, by the overall system of government; and, as last resort, how the judge would decide the matter acting as the legislator.

The civil-law system originated under mandate to strip judges of all real power. Even today, civilian systems view judges as bureaucrats subordinate to the legislature. What powers of interpretation accrued to judges at civil law resulted not from their influence nor the connivance of ruling ideology but the foremost practical necessity, workload reduction. A self-interpreting law is unwritable; the civil law conceded on judicial interpretation, but the civilian system has no imperative to balance legislative power. The original French civil-law system approached the thought experiment at this series' start, subjecting the courts to present legislative purposes. When the system evolved as needs of state expanded, the courts remained under mandate to obey legislative intent, and the courts in civilian countries consult legislative history freely. The civil-law system, unambivalently committed to legislative supremacy, evolved a purposivist approach to statutory interpretation.

Next, what the American system of checks and balances means for statutory interpretation.