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04/21/2022

John Vlahoplus: Living Recipes . . . and Constitutions
Michael Ramsey

John Vlahoplus (independent) has posted Living Recipes . . . and Constitutions (98 Notre Dame L.Rev. Reflection (2022 forthcoming)) (12 pages) on SSRN.  Here is the abstract:

Professor Gary Lawson and Zachary Pohlman assert that we can only follow recipes and by analogy the Constitution by complying with the original public or authorial meaning of the instructions in their texts. Absent an instruction in the recipe’s text authorizing changes, any departure from historical meaning amends the recipe rather than follows it.

This response uses the works of renowned chefs to sketch a competing theory. Following a recipe requires a cook to consider many of the same factors as pluralist and living constitution theories of law including text, history, purpose, current circumstances, personal experience, and individual judgment. Even extensive directions in a recipe provide only a general guide to how the recipe works. They do not dictate an exact right way to follow it. You can still follow a recipe while cooking inexact amounts of ingredients at varying temperatures for differing times. You must use your own taste, sensibilities, and experience to respond in each moment to your particular environment, equipment, and ingredients with the overarching goal of producing quality food. As one chef explains: “You are not cooking carrots in general, but specifically these carrots, in this pot, on this stove.”

This response then illustrates how a living theory of following recipes applies analogously to the Constitution. Equal protection does not involve historical understandings of equality generally. It involves this person under this law in this set of contemporary social circumstances, and we must interpret equality using our own experience and sensibilities. Historical understandings do not dictate an exact right way to follow explicit numerical provisions in the Constitution either. We may use our experience and sensibilities to determine whether offenders who have received the constitutional benefit of reduced punishment because of their low mental age have attained to the minimums required to serve in Congress or the Presidency. One day we might have to use our experience and sensibilities to address the question of what age astronauts like Cooper in the film "Interstellar" have attained to after returning to Earth from high-speed travel through high-gravity environments.

Do cooks still follow recipes when they use their own taste, sensibilities, and experience to respond in each moment to their particular environment, equipment, and ingredients with the overarching goal of producing quality food? Renowned chefs say yes, Lawson and Pohlman no. When it comes to cooking, I’ll go with the chefs. And if the Constitution follows recipes, I’ll go with living constitutionalism as well.

Bon appétit, and bonae leges.