12/08/2017

Mark Movesesian on the Constitutional Right to Go Topless
Michael Ramsey

At Liberty Law Blog, Mark Movesisan (St. John's): Tradition and Going Topless.  It begins:

Last month, a three-member panel of the U.S. Court of Appeals for the Seventh Circuit handed down an important decision in Tagami v. City of Chicago, the “GoTopless” case, a constitutional challenge to a Chicago public nudity ordinance that prohibits women, but not men, from appearing topless in public. The court upheld the ordinance by a vote of 2 to 1. The debate between Judge Diane Sykes, who wrote the majority opinion, and Judge Ilana Rovner, who wrote the dissent, offers fascinating insight into the role of tradition in constitutional law.

And a key substantive point:

First, Judge Sykes’s opinion suggests that, even after cases like ObergefellLawrence, and Casey, tradition continues to have an important place in constitutional law. It’s true those decisions held that traditional moral norms cannot serve as a legitimate basis for law, at least not where they infringe on personal identity or the individual’s search for meaning. But it’s also true, as the late Justice Scalia and others repeatedly pointed out in response, that the  Court cannot possibly have meant what it said. Too much law relies on traditional morality as a justification; to deny that tradition can legitimate law would throw our legal system into chaos. Judges will need to find some way to distinguish between those cases where traditional norms can serve to justify state action and those where they cannot. Judge Sykes’s opinion, which suggests that traditional norms can still govern questions of “public order,” is perhaps a start.

12/07/2017

William Michael Treanor: The Genius of Hamilton and the Birth of the Modern Theory of the Judiciary
Michael Ramsey

William Michael Treanor (Georgetown University Law Center) has posted The Genius of Hamilton and the Birth of the Modern Theory of the Judiciary (Cambridge Companion to The Federalist (Jack Rakove & Colleen Sheehan eds., Cambridge University Press Forthcoming)) on SSRN.  Here is the abstract:

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern scholars have made Madison’s political and constitutional theory the great story of the Federalist, and Federalist 10, in particular, has long been “in the center of constitutional debate.” But careful study of essays 78 through 83 reveals that Hamilton had an innovative and consequential vision of the law and the judicial role that deserves at least as much attention as Madison’s contributions.

12/06/2017

The President and Obstruction of Justice (Again)
Michael

In the New York Times, Saikrishna Prakash and John Yoo: Don’t Prosecute Trump. Impeach Him.

As to prosecution, they argue:

The Constitution imposes on the president the duty to “take care that the laws be faithfully executed,” which vests the authority to oversee all federal law enforcement. As Alexander Hamilton observed in Federalist 70, “good government” requires “energy in the executive,” and a vigorous president is “essential to the protection of the community from foreign attacks” and “the steady administration of the laws.” Ever since the framing, presidents have enjoyed the right to drop prosecutions as a waste of resources. Indeed, this is the very theory that President Barack Obama raised when he unilaterally reduced the enforcement of the immigration laws under the Dreamers and Deferred Action for Parents of Americans programs.

Because of the original constitutional design, President Trump ultimately can order the end of any investigation, even one into his own White House. He even has the power to pardon its targets, including himself. Mr. Trump can decide tomorrow that pursuing Mr. Flynn and others for lying to the F.B.I. agents is a waste of time and money. Though he claimed that he fired Mr. Comey for not doing “a good job,” the president can fire any cabinet and high-ranking Justice Department official for any reason or no reason.

And as to impeachment:

If Mr. Trump has truly impeded a valid investigation, Congress should turn to impeachment, which allows for the removal of a president for “high crimes and misdemeanors.” Impeachment does not require the president to commit a crime, but instead, as Hamilton explained in Federalist 65, encompasses significant misdeeds, offenses that proceed from “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Such offenses, he said, “are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

The House and Senate can make their own judgments — political as well as legal — about whether the Trump team’s involvement with the Russians or Mr. Trump’s comments to Mr. Comey fit this constitutional standard. Congress can begin this course of action by forming a special committee to investigate the Russia controversy and the Trump-Comey-Flynn affair, which could also find any predicate facts for a case of impeachment. If Congress believes that these events do not merit obstruction of justice or illegal conspiracy, it should go on the record with its judgment, too — a result Mr. Trump would welcome.

I think this is all correct as a matter of the Constitution's original meaning.  On the first point, it's important to emphasize that a President most certainly could be guilty the crime of obstructing justice -- for example, for threatening witnesses or destroying evidence.  Professors Prakash and Yoo (and others making this argument, including President Trump's counsel) aren't arguing otherwise.  The claim instead is that the President can't be guilty of the crime of obstructing justice when exercising his constitutional powers to direct investigations and prosecutions.  That seems right -- the President is in charge of all of the executive branch, and ultimately he makes the decisions about prosecutions as part of his executive authority to enforce the law (granted, I would say, by Article II, Section 1 of the Constitution).  The executive power over prosecution traditionally included the power not to prosecute for a range of reasons -- to avoid wasting resources, among others, but also for reasons of fairness, or national security, and many others.  Neither the FBI nor the special prosecutor exist outside the executive branch; they are subject to presidential oversight and direction as a constitutional matter (irrespective of what a statute might purport to say, but in any event the relevant statutes don't appear to clearly say otherwise).  

On the second point, it's important to emphasize that (as the authors say) impeachment does not require a criminal offense, even though at first glance the Constitution's text ("high Crimes and Misdemeanors") may appear to say so.  Misdemeanor here means "misconduct in office" not "minor criminal offenses."  As a result, even though a President would not be guilty of a crime for wrongfully discontinuing a prosecution (that is, doing so for a bad reason), he would be subject to impeachment if Congress felt the misconduct ("Misdemeanor") was sufficiently grave to warrant it.  This process provides the check on a corrupt President that some commentators claim would be lost without the possibility of criminal prosecution.  But it should also be emphasized that the impeachment process itself is discretionary, in that Congress could decide that, even if a "Misdemeanor" occurred, the harm of pursuing it would outweigh the benefit.  Nothing in the Constitution requires Congress to proceed with an impeachment.

(On impeachment, see this earlier post; on the two issues together, see the article by Noah Feldman linked in this post, reaching roughly the same conclusion that I do).

Josh Blackman has related thoughts here: Obstruction of Justice and the Presidency: Part I.  I'm not sure what to make of his second-to-last paragraph, but if his position is that the President cannot be impeached for improper use of the prosecutorial discretion power, I strongly disagree.  I'll wait to see what he says in "Part II".

12/05/2017

The Fourteenth Amendment and Masterpiece Cakeshop
Chris Green

David Upham and I, following up on our amicus brief in the case, have posted an essay at Public Discourse: The Fourteenth Amendment and Masterpiece Cakeshop: Equal Citizenship, our Inclusive Republic, and Anglo-American Common Law. Our summary: "The government cannot impose creedal and exclusionary limits on occupational freedom by compelling particular citizens to provide goods and services contrary to their beliefs, unless those citizens have such a monopoly market power as to exclude other citizens from the market."

Several of the justices at the oral argument today sounded themes relevant to our position, particularly the distinction between those with and without local-natural-monopoly market power.  Asking questions of Solicitor General Noel Francisco, who supported the baker, Justice Sotomayor at pp. 28-30 expressed concern about markets with local natural monopolies, such as professionals serving military bases. Our proposed resolution of the case would sidestep such markets.  Justice Kennedy followed up on this sort of concern at pp. 44-45, worrying that more and more professionals might take positions like Masterpiece. If and when they did, the change in market power would pose a different police-power question.

Several justices also pressed the lack of tailoring of Colorado's regulation to those with market power: Justice Breyer at pp. 57-58 noted that Colorado had not made any effort to accommodate those whose beliefs would not imperil the tangible goals of the law, returning at pp. 63-64 with a hypothetical about a referral-down-the-street accommodation, which Colorado rejected (flatly at first, then more tentatively). Justice Breyer also referred at p. 78 to "an important public policy, the policy of opening the doors to everyone, including minorities, in the public commercial area." Limiting the holding to low-market-power dissenting creedal minorities would leave that policy unimpaired, and indeed, the entire point of our Fourteenth Amendment argument is to preserve such a policy: "opening the doors to everyone, including [creedal] minorities [like Masterpiece], in the public commercial area."

The one place at which Justice Kennedy seemed most clearly to tip his hand about his inclinations in the case, at page 62, used similar reasoning. Because there were "other good bake shops that were available," Kennedy said, "It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs."

It is true that no one on the Court (or at the podium) used the phrases "Fourteenth Amendment" or "original meaning," and commentators like Eric Segall tweaked Justice Gorsuch for the failure. Time was tight, however, and in looking for a doctrinal hook on which to hang a readily-available-substitutes holding, the Justices may yet turn Fourteenth-Amendment-ward. One can always hope!

Update (12/6): Reacting to the portion of the argument where Francisco answered Justice Sotomayor, Andy Koppelman comments on the readily-available-alternatives rule (part of Koppelman's argument that any and all resolutions in favor of the plaintiff would "lead to chaos"):

But notice how impossible this makes the burden for the discrimination claimant: now, in addition to proving the discrimination, the complaint would have to survey the neighborhood to prove that no substitute was available, which would mean contacting every other service provider to ask what they would have done. (And hope for truthful answers: Those who discriminate often don’t want to advertise that fact.)

This does not seem right to me at all. Those seeking wedding cake are, after all, seeking wedding cake, and it should be relatively easy to find out whether they found one and with what difficulty. The burden of showing the unavailability of a product is no different from the ordinary burden that a contract or tort plaintiff has in showing damages. Consider, for instance, one of the cases we discuss here at pp. 32-33: the 1844 plaintiffs in Hawthorn v. Hammond, who sued because they were "obliged to go on to Bridgenorth" after a hotel refused them entry. Assessing the "trouble, inconvenience, and expense" of a change in plans requires exactly the sort of assessment Koppelman calls impossible. It is not only possible, but near-ubiquitous in the law.

William Dodge: Customary International Law, Change, and the Constitution
Michael Ramsey

William S. Dodge (University of California, Davis - School of Law) has posted Customary International Law, Change, and the Constitution (106 Georgetown Law Journal, forthcoming) on SSRN.  Here is the abstract: 

Customary international law has changed in many ways since ratification of the U.S. Constitution. This Article considers the implications of those changes for customary international law’s role under the Constitution. In particular, it challenges the claims made in a new book, The Law of Nations and the United States Constitution, that U.S. courts must respect the “traditional rights” of foreign nations under the law of nations and may not apply the modern customary international law of human rights. The Article argues that the book is not consistent in its approach to changes in customary international law, embracing some while rejecting others. The Article also shows that a full account of how customary international law has changed undercuts each of the book’s two constitutional arguments.

This is another article in the outstanding Georgetown Law Journal symposium on "The Law of Nations and the United States Constitution" (see my post from yesterday on my contribution to the symposium).  I don't dispute the principal conclusion of Professor Dodge's article, that the U.S. courts may apply the modern law of nations (in at least some instances) consistent with the Constitution's original meaning.  But Professor Dodge and I have a deeper dispute over original meaning in this area, namely on the question whether customary international law can be the basis for federal court jurisdiction in human rights (and other) cases.  I will further explain the relevance of that dispute in a future post.

12/04/2017

The Constitution's Text and Customary International Law
Michael Ramsey

I have posted my new paper The Constitution's Text and Customary International Law (106 Georgetown Law Journal, forthcoming 2018) on SSRN.  Here is the abstract: 

The Constitution’s text does not directly address the role of unwritten international law in the U.S. domestic legal system, apart from giving Congress the power to define and punish offenses against the law of nations. This may seem surprising, as the Constitution’s framers were concerned about compliance with international law (then called the law of nations). Modern commentators have advanced various theories of the Constitution’s original relationship to the law of nations, ranging from the view that the Constitution fully incorporated the law of nations as U.S. federal law to the opposite view that the law of nations has no status in U.S. domestic law until incorporated by Congress pursuant to the define-and-punish power. 

This essay defends an intermediate position based on the Constitution’s text and historical background. First, it argues that the law of nations was not supreme over state law nor the basis of federal court jurisdiction under the Constitution’s original meaning. In particular, the text’s distinct treatment of treaties – which it expressly makes part of supreme law and the basis of federal jurisdiction – strongly implies a different status for unwritten international law. The Constitution’s framers confronted parallel problems of states violating U.S. treaties and states violating unwritten international law. But in drafting the Constitution they did not provide parallel solutions. This indicates a distinct approach for unwritten international law, requiring action by Congress (or the treaty-makers) to convert it into supreme domestic law. Second, however, this essay argues that the unwritten law of nations could be a rule of decision for U.S. courts with appropriate jurisdiction if it did not conflict with other domestic law. English and American courts prior to the Constitution routinely used the law of nations as a rule of decision, and there is no reason to suppose that the federal courts’ “judicial Power” granted by Article III did not include this traditional authority. Moreover, U.S. courts in the immediate pre-ratification period routinely used the law of nations as a rule of decision without objection. Thus under the Constitution’s original meaning the law of nations was part of domestic law, but it was not of supreme domestic law established by Article VI nor a basis for federal jurisdiction under Article III.

This essay also considers a different “intermediate” view of the law of nations advanced by Professors Anthony J. Bellia and Bradford Clark in their important new book “The Law of Nations and the U.S. Constitution.” [ed.: here is link to the book's Amazon page.]  Bellia and Clark argue, among other things, that different parts of the law of nations had different roles under the Constitution’s original meaning. Specifically, they argue that the Constitution’s assignment to the federal government of the power to recognize foreign governments implicitly precluded states from interfering with the rights of foreign nations established by the law of nations. Thus, while the law of nations did not become part of supreme law for all purposes, the rights of recognized foreign governments – reflected for example in doctrines such as foreign sovereign immunity and the act of state doctrine – did in effect become part of supreme law, displacing contrary state law. This essay concludes that the Bellia and Clark position is not supported by evidence from the founding era. However, it further concludes that the Bellia and Clark position may be the best way to understand modern judicial practice, which appears to make foreign sovereign rights superior over state law without recognizing a full incorporation of unwritten international law into supreme domestic law.

This paper is part of the Georgetown Law Journal's excellent symposium on the Bellia/Clark book.  Some of the other papers have been posted on SSRN already, and I'll link to others as they become available.

12/03/2017

Judge Brett Kavanaugh on Judge David Barron on War Power
Michael Ramsey

At Lawfare, Judge Brett Kavanaugh reviews Judge David Barron's new book Waging War: The Clash Between Presidents and Congress, 1776 to ISIS (Simon & Schuster, 2016).  From the core of the review:

What does Barron’s survey of historical practice show us about those two major questions of war powers law?

First, Barron argues that, with rare exception, presidents from the founding to the present have led the nation into large-scale foreign wars only when they have obtained congressional authorization.

Commentators and the media sometimes say that presidents have often led the nation into war unilaterally and that presidents lawfully may do so. But Barron says that those assertions about the Constitution and historical practice are wrong.

Barron starts with the original understanding of the Constitution on this point. He explains that the framers themselves “leaned hard in Congress’s favor when it came to making the crucial decision between war and peace” (p. 22). The text of Article I of the Constitution grants Congress numerous war powers, including the power to declare war. The text of Article II makes the president the commander in chief, thereby ensuring civilian control of the military, among other things. But Article II does not afford the president, at least expressly, any other unilateral war powers. Barron points out that even Alexander Hamilton, who generally favored a strong executive, emphasized in “Federalist 69” that the president lacked the power to unilaterally take the nation into war.

As Barron describes it, that founding understanding has been followed throughout American history: Congress has authorized almost every substantial foreign war waged by the United States. Those wars include: the Quasi-War against France in the late 1700s, the War of 1812 against Great Britain, the Mexican-American War in the 1840s, the Spanish-American War in the 1890s, World War I, World War II, the Vietnam War (through the Gulf of Tonkin Resolution), the Persian Gulf War, the war against al-Qaeda and related terrorist groups beginning in 2001, and the war against Iraq beginning in 2003.

After painstakingly reviewing the text and original understanding of the Constitution, as well as longstanding historical practice, Barron concludes that Congress must authorize or declare war and that presidents do not have unilateral authority to take the nation into war. Barron recounts and concurs with Madison’s statement in the run-up to the War of 1812 against Great Britain: Whether to go to war is a question “which the Constitution wisely confides to the Legislative Department of the Government” (p. 85).

...

In short, Barron advances an important originalist and historical-practice case that presidents constitutionally must obtain—and ordinarily have obtained—congressional authorization to take the nation into any substantial foreign war.

And here is a description of the Barron book from Amazon: 

A timely account of a raging debate: The history of the ongoing struggle between the presidents and Congress over who has the power to declare and wage war.

The Constitution states that it is Congress that declares war, but it is the presidents who have more often taken us to war and decided how to wage it. In Waging War, David J. Barron opens with an account of George Washington and the Continental Congress over Washington’s plan to burn New York City before the British invasion. Congress ordered him not to, and he obeyed. Barron takes us through all the wars that followed: 1812, the Mexican War, the Civil War, the Spanish-American war, World Wars One and Two, Korea, Vietnam, Iraq, and now, most spectacularly, the War on Terror. Congress has criticized George W. Bush for being too aggressive and Barack Obama for not being aggressive enough, but it avoids a vote on the matter. By recounting how our presidents have declared and waged wars, Barron shows that these executives have had to get their way without openly defying Congress.

Waging War shows us our country’s revered and colorful presidents at their most trying times—Washington, Lincoln, Theodore Roosevelt, Franklin Roosevelt, Truman, Eisenhower, John F. Kennedy, Johnson, both Bushes, and Obama. Their wars have made heroes of some and victims of others, but most have proved adept at getting their way over reluctant or hostile Congresses. The next president will face this challenge immediately—and the Constitution and its fragile system of checks and balances will once again be at the forefront of the national debate.

As readers of this blog well know, I agree with these conclusions as an originalist matter (as do, I think, most originalist-oriented legal scholars apart from Professor John Yoo).  I further think this topic poses a challenge to critics of originalism -- especially historians critical of the originalist enterprise.  If originalism is a fundamentally flawed approach, then the originalist conclusions regarding presidential war power advanced by Judge Barron and others must be wrong -- either because the Constitution actually established a different rule or because the Constitution's original meaning cannot be understood today.  But I'm not aware of any such arguments by originalist critics regarding presidential war power.

 

12/02/2017

John McGinnis on Robert Bork and Judicial Restraint
Michael Ramsey

At Liberty Law Blog, following up on this post by Mark Pulliam, John McGinnis: Bork Was a Great Scholar, But Poor Guide to Modern Originalism.  Key point:

The problem is that Bork’s theory combined judicial restraint—something he derived from his view of democracy – and original meaning. These are simply incompatible as first principles. If one begins, as I do, with the first principle of originalism, the question of the appropriate degree of judicial deference, if any, to legislation is itself a question of constitutional meaning. I have offered reasons rooted in original meaning that the Constitution imposes on judges a modest duty of deference in that the meaning of the Constitution must be relatively clear, after using traditional judicial methods of clarification, before invalidating legislation.  This judicial duty is simply a product of original meaning, not some atextual policy of judicial restraint.

Nor does originalism rule out unenumerated rights, as Bork sometimes implied, if that is indeed the best reading of the Constitution’s text. In my view, the Ninth Amendment is not a fount of rights against the states,  but that view does not derive from judicial restraint but from my reading of the Ninth Amendment. On the other hand, I believe that Privileges or Immunities Clause offers a modest shield against protectionist state legislation, but that view again is based on my reading of the original meaning of the term.

12/01/2017

Mark Pulliam on Robert Bork and Judicial Activism
Michael Ramsey

At Liberty Law Blog, Mark Pulliam: What Robert Bork Learned from Judicial Activism, Right and Left.  From the introduction: 

I have been thinking about Robert Bork recently, prompted in part by the 30th anniversary of his rejection by the Senate on November 23, 1987.  Next month will mark the fifth anniversary of his passing on December 19, 2012. Bork was profoundly influential in conservative legal circles when I graduated from law school in 1980 and started paying closer attention to constitutional theory. I was impressed with both Bork’s scholarly writings and his more polemical articles in publications such as National Review. A 1982 essay he wrote in NR, entitled “The Struggle Over the Role of the Court,” reprinted in his 2008 anthology A Time to Speak, remains timely—even prescient. Ramesh Ponnuru has called Bork’s 1990 book, The Tempting of America, written in the wake of his confirmation defeat, “the most important popular statement of judicial conservatism yet produced.”

Certain libertarians who favor a more emphatic judicial approach now criticize Bork, once revered in center-right legal circles. For advocating judicial restraint, Bork has been labeled as a “moral eunuch,” “amoral,” “relativistic,” a “moral nihilist,” and a “majoritarian.” These criticisms ultimately parallel those of left-liberals: Bork’s advocacy of original intent and judicial restraint denies them the license to shape the Constitution according to a preferred ideological template, which, in this case, means libertarianism. Bork’s unforgivable sin was pointing out that republican self-government “means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.”

These negative assessments of Bork are particularly ironic in light of the fact that Bork revolutionized antitrust law by infusing the topic with economic analysis, culminating with his 1978 treatise The Antitrust Paradox. Moreover, during the 1960s, while many of his colleagues at Yale Law School were striking fashionable leftist poses, the free-thinking Bork was exploring libertarian themes. Unlike many current legal scholars, while at Yale (1962-1975, 1977-1981), Bork wrote for both academic audiences and in lay publications such as The New Republic and Fortune, exhibiting a flair for controversy and becoming an early exemplar of what we now call a “public intellectual.” ...

And I didn't know this:

In a 1968 Fortune article, Bork expressed sympathy for the Supreme Court’s recognition of “fundamental” natural rights not listed in the Constitution, under the rubric of the Ninth Amendment, which he believed could be read to preserve individual rights not expressly set forth in the Constitution.  The Ninth Amendment, Bork averred, “seems to mean that the Bill of Rights is an incomplete, open-ended document.” In fact, Bork described liberal Justice Arthur Goldberg’s concurring opinion in Griswold v. Connecticut (1965)—adopting this theory—as “persuasively argued.” Bork suggested that “the idea of deriving new rights,” even “individual freedoms far beyond the text of the Constitution,” was “valid and valuable.” In the interest of consistency, however, Bork proposed that the Griswold approach be extended to restore protection for long-forgotten economic freedoms, rejecting the Court’s post-New Deal distinction between “personal” and “economic” rights. In other words, decades before the “libertarian legal movement” was hatched, Bork was exploring all of its themes, including the demotion of economic liberties in United States v. Carolene Products (1938).

But as the essay explains, he then changed his mind, particularly under the influence of Alexander Bickel.

11/30/2017

Donald Drakeman: Consequentialism and the Limits of Interpretation
Michael Ramsey

Recently published in the journal Jurisprudence, Donald L. Drakeman: Consequentialism and the limits of interpretation: do the ends justify the meanings?  Here is the abstract: 

A recent consequentialist resurgence in transnational legal scholarship urges judges in cases involving authoritative texts to make decisions based on which outcomes will be best for society. Some consequentialist scholars assert that judges should openly disclose these reasons, while others advocate replacing them with any plausible argument employing the traditional language of interpretation. This article argues that making consequentialism the primary basis for judicial decision-making runs counter to the long history of legal interpretation, is contrary to the insights of modern decision science, and raises significant separation of powers issues, even when it is fully disclosed. Covert consequentialism is even less likely to lead to good consequences, and it poses substantial threats to both the separation of powers and the rule of law.

Although the abstract doesn't make this clear, the article is an important response to Cass Sunstein's article There is Nothing that Interpretation Just Is (30 Constitutional Commentary 193 (2015)).  From the introduction (footnotes omitted):

Sunstein's title will likely appear whenever someone needs to defend an argument from an attack along the lines of, ‘That's not an interpretation of the law, just your own preferences’. The now obvious response is, ‘Of course it is. Harvard Professor Sunstein has taught us that there is nothing that interpretation just is’.

Sunstein's plea for interpretative flexibility is part of a recent resurgence in transnational scholarship encouraging judges to base decisions primarily on their consequences rather than on the traditional processes of interpretation.  These scholars seek to inform – and perhaps to replace – the age-old arguments about how legal texts should be interpreted with a consequentialist focus on the expected results of judicial decisions. Drawing inspiration from a variety of fields, from macroeconomics to systems biology, they increasingly see constitutions, charters, laws and regulations as an invitation for judges to weigh the likely outcomes of various possible decisions, and then choose the one that, on balance, makes the world a better place.

Surprisingly few of these discussions explore how judicial consequentialism relates to judges’ traditional role as interpreters of authoritative legal texts. When the issue has occasionally appeared, the principal inquiry has been whether the consequentialist reasoning should be ‘open’ or ‘covert’.

Meanwhile, several American scholars have embraced a covert mode in which judges reach decisions for a variety of reasons, but the court's publicly disclosed rationale is written instead in the conventional language of interpretation. Mark Tushnet has written, for example, that if he were a judge, he would consider ‘which result is … likely to advance the cause of socialism’, and then, having picked the desired result, he ‘would write an opinion in some currently favoured Grand Theory [of the Constitution]’. ...

Sunstein's ... goal is to find creative ways to employ traditional forms of legal reasoning to clothe consequentialist decisions. His major theme is that the usually conflicting views of leading theorists and jurists – he cites Ronald Dworkin, Justice Antonin Scalia, John Hart Ely, and others – are all legitimate contenders in the realm of interpretative theory, but they largely miss the point: because these conflicting views are all legitimate modes of interpretation – and, therefore, none has a valid claim to exclusivity – judges can be flexible and pick whichever one plausibly justifies a consequentialist judicial decision.

In ‘not ruling out’ any of the traditional interpretative approaches, Sunstein does not invoke the full degree of postmodernism implied by his title, which would require him to make what he calls the ‘preposterous’ claim that the meaning of a legal text is ‘entirely up for grabs’.  Yet, ‘among the permissible alternatives’, he argues, ‘identification of the proper approach to constitutional interpretation requires attention to whether it would make our constitutional order better or worse’. For Sunstein and other adherents of the covert school of thought, freeing judges to make the best choices means releasing them from the constraints of worrying about methodological purity or interpretative consistency. Since ‘there is nothing that interpretation just is’, covert consequentialists have considerable freedom to select the ideal outcome while retaining the rhetorical value of the time-honoured language of interpretation ...

There are two interrelated questions addressed in this article. The first is whether judges should embrace consequentialism with the level of enthusiasm encouraged by recent scholarship. While consequentialism can appear in a variety of forms, this article will concentrate on the use of consequentialist analyses by apex courts to reach a decision about the interpretation of a statute, constitution, charter, treaty or other element of the written law such that the new meaning establishes a rule that is applicable to future cases. For several scholars, including Flavia Carbonell's discussion of the Chilean Constitutional Court and Sunstein's analysis of US constitutional law, this consequentialism extends to cases involving fundamental rights and other highly contested issues of public policy.   The second question is whether judges who adopt consequentialism in such cases should openly acknowledge that methodology in the publicly available record of the judicial decisions or whether their consequentialism instead should be covert, with a plausible interpretative argument used in its place? ...

And the first substantive section is titled "What Interpretation Is."