This week in the New York Times, Stanley Fish, the gifted literary theorist and legal scholar, poses this question: “Does Constitutional Theory Matter”? Since many jurists and scholars believe that constitutional theory is indispensable to deciding cases correctly, an answer to Fish’s question is critical. If constitutional theories have no real-world consequences, then why should we waste our time trying to construct them? The answer is we shouldn’t waste our time. Even more intriguing, in Fish’s view, is that even if we want to and think we can, we’re just flat out wrong.
There is much of value in Fish’s Times piece, but unfortunately, there’s much that’s problematic. Fish is right, in my view, that the Dworkinian approach to constitutional interpretation rewrites the constitutional text; it doesn’t interpret it. (I make a similar, but stronger, argument against Dworkin’s constitutional jurisprudence in the second chapter of my book, Constitutional Revolutions.) Fish correctly distinguishes between “seeking the meaning the framers intended” and “seeking the best interpretation of the Constitution.” The former sticks to authorial meaning, while the latter seeks “to satisfy some extra-authorial standard, the standard of what someone — but not the framers — regards as morally and philosophical best. An interpreter who does that will no longer be engaged in the effort to determine what some agent or agents mean by these words. Instead, he or she will have traded in that humble task for the more exalted task of giving moral guidance to the world.” This might sometimes be so, but not if the interpreter discovers the moral guidance in the framers’ text. That, of course, is the issue between Fish and Dworkin’s approach to constitutional law. Fish says we can use moral philosophy in interpretation only if the moral imperatives we select belong to the framers, no matter how defective those moral imperatives might now be. In Dworkin’s view, we can only be faithful to the framers’ text, and the morality contained therein, if we in interpret it, from our perspective and with contemporary knowledge in mind, as the best morality it can be simplicter. That, however, advances a tendentious conception of fidelity to the framer’s intentions or to the original meaning of the words and sentence the framers employed in writing the Constitution.
Significant problems arise when Fish inveighs against the practical efficacy of “constitutional theory.” Curiously, Fish never bothers to specify just what he means by “constitutional theory.” Consequently, we are forced to wonder whether his protestations derive from some insight pertaining to the relationship between theory and practice or rather whether they are simply based on his own idiosyncratic–and undefined–conception of constitutional theory, if he has such a conception at all. For instance, does the accusation that a judicial decision is counter-majoritarian (or counter-democratic) rely on any theoretical factors? What about “judicial activism” or “judicial restraint”? Judges and courts often fashion their opinions to embrace or avoid one of these conceptions. And as such, these theoretical constructs have direct practical consequences. (Besides leaving “constitutional theory” undefined, Fish never explains “practical consequences” or what it might be like, conceivably, for theoretical factors to be involved in generating judicial decisions.) But carefully consider, had there been one more justice on the Court who believed in judicial restraint, we might now be bidding farewell to Al Gore, not George W. Bush. You can’t get any more practical than that, can you? Of course, Fish might reject the supposition that “judicial restraint” has a theoretical dimension. But that simply underscores the necessity for Fish to say what he means by “constitutional theory.” It also reveals the strategy behind his argument. Smuggle into the argument an idiosyncratic re-description of some critical term and viola, a Fishian victory ensues, or should I rather say a fishy “victory” ensues. (Ooooh!)
The peculiarity of Fish’s position can be brought out by referring to an incident that occurred, of all places, on a baseball diamond. Fish uses an incident involving the pitcher, Dennis Martinez, and his manager, Earl Weaver, as a model for his own, may I whisper the term, “theory.” According to Fish when a reporter asked Dennis Martinez what his manager, Earl Weaver, had said to him just prior to one of Martinez’ starts, Martinez replied: “He [Weaver] said, ‘Throw strikes and keep ‘em off the bases’ . . . and I said, ‘O.K.’” Martinez continued: “What else could I say? What else could he say?’” Fish’s point in using this bewildering example is that when playing a game, there’s nothing more to say. You can either play or not. No theory or advice is needed or possible. The coup de grace is that “playing [the game] has nothing to do with following words of wisdom, whether they are Weaver’s or Aristotle’s, and everything thing to do with already being someone whose sense of himself and his possible actions is inseparable from the kind of knowledge that words of wisdom would presume to impart.” In short, after learning to play baseball, going out to play is just doing what comes naturally. And doing what comes naturally doesn’t need coaching or a theory.
Incidentally, following Aristotle’s conception of reasoning can be efficacious. For one thing, seeking balance and avoiding excess is pretty good counsel. Sure, reciting these directives has no talismanic effects, but it’s sure better than “do your own thing” or “live for the present.” And general strategies for practical reasoning may be, as Aristotle intimates, the best we can do. No greater precision is possible. But just because theories or advice cannot always pinpoint one and only resolution to a conflict, doesn’t mean that using theories and advice is pointless. Rather, general strategies provide directives that our own individual autonomy can then express in satisfying ways. Aristotle might not be able to explain the distinction between a hit-and-run and a run-and-hit in baseball, but he’s pretty good on more general strategies concerning ordinary life. And his more general strategies clearly have practical consequences.
If games are rule-structured activities, and different people exhibit different abilities in following rules, why wouldn’t a coach be a benefit, even perhaps a necessity? In Fish’s view, if Weaver were “to enumerate the possible situations that might arise during the game and suggest strategies to deal with those situations, Martinez would be understandably incredulous and justifiably resentful.” Wow! Has Fish ever played any organized team sports? What does he think coaches do in timeouts or when managers visit the mound without removing the pitcher? Suppose Weaver told Martinez to remember that he’s developed a hitch in his wind-up and should employ the strategy the pitching coach tried to teach Martinez in practice. Or suppose Weaver told Martinez that his splitter didn’t seem to be working well when he was warming up. Maybe he should use it only sparingly. Or perhaps he instructs Martinez that if Speedo gets on base to make a special effort to keep him on first, a greater effort than he usually makes. Incredulity? Resentment? Why? Though it’s difficult to appreciate Fish’s reason for this bizarre view, I’ll bet it has something to do with theory and theory’s relationship to practical consequences. Somehow whatever advice Weaver gave Martinez would be superfluous; it would have no practical effect. Just as theories of practical reason are impossible and unnecessary so is advice and strategizing. Martinez already knew everything he needed to know and now his task was to pitch. Advice is irrelevant, even if the advice itself was also doing what came naturally.
Fish’s piece is permeated with this mystifying commitment to an idiosyncratic conception of “constitutional theory” and what counts as a theory mattering. Certainly, a comprehensive theory of constitutional law, conceived of as an algorithm, might not yield judicial decisions. But that a refined, white-collar, algorithmic, theory won’t generate judicial decisions, doesn’t mean that other kinds of theories also will fail. A blue-collar theory or blue-collar theoretical factor, for instance, directing courts to defer to the elected branches in these and those circumstances might influence, even in some cases compel, judges to decide cases in a certain predictable manner. Fish is probably right that white-collar theories of practical reasoning might not exist, but blue-collar theories having practical consequences certainly do. I know because I’ve actually seen them work.
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