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.

5.6 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.