Does Constitutional Theory Matter? – Stanley Fish – Think Again
Stanley Fish writes this week about the chicken and egg of interpreting the Constitution through a critique of a book by Barber and Fleming. It’s a bit long, but worth the read if this is a topic you’re interested in.
As Barber and Fleming elaborate … [w]hile we do have an obligation to be true to what the framers intended, we can only fulfill that obligation by thinking philosophically about what their capacious phrases direct us to do. (What forms of punishment, we must ask, are in fact “cruel and unusual.â€)
Since the Constitution arguably was a document forged by consensus and not the unified word of some singular mind of the founders, another advantage to this position is that it may allow for alternative but historically plausible interpretations.
Does it matter if judges declare themselves to be adherents of the philosophical approach or the living constitution approach or the intentionalist approach or no approach. … No. When Professor Lief Carter asked a number of judges to talk about their interpretive theories, he found that “the conversation would quickly drift from the theoretical points†he had introduced to anecdotal accounts of practice and opinion writing. “Most of the time,†said one judge, “you reach the result that’s fair and then build your thinking around it.â€
This is a study I haven’t heard about, but is a great example of the differences between how law appears to work and what really happens in practice. Despite fictions like this, I would argue we can still answer Fish’s question “Does it matter?” with a resounding “No.”