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Quality and quantity in constitutional interpretation: the quest for analytic essentials in law

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Abstract

Henry Manne wrote about many topics central to the law-and-economics canon but also over a period of more than a decade later in life worked on a theory of constitutional interpretation, producing a paper and lectures on this subject. His goal was to use insights from economics to improve constitutional analysis, in particular seeking to ground constitutional interpretation in quantitative assessments he hoped would be both true to the primary goal of constitution-makers and capable of providing guidance to judges in ways less subject to the pull of political preferences. Despite his concerns with controlling constitutional interpretation in practice, the instincts Manne brought to this endeavor ran more to matters of theory than to its implementation by judges, identifying important propositions for interpretation but failing (by his own admission) to produce a test that fulfilled his aspirations. The strengths and weaknesses of this work provide an intriguing contrast with writings from Antonin Scalia, the American jurist and scholar whose approaches to both constitutional and statutory interpretation had a profound impact on jurisprudence over the past three decades. Like Manne, Scalia highly valued more determinate methods of analysis and was deeply concerned with the architecture of constitutional creation and effectuation. His focus, however, was more on the practical question of what happens when a particular sort of official has the power to implement a highly indeterminate test and what test best constrains interpretation in ways faithful to the interpretive task. Those goals undergird Scalia’s commitments to textualism and originalism. Manne’s and Scalia’s approaches to constitutional interpretation are instructive on the purposes served by analytical tools in disparate settings. In particular, they offer contrasting and complementary visions, providing insights about the domains of law-and-economics, legal analysis, practical judgment, and perspective.

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Notes

  1. See, e.g., Ronald A. Cass, Introduction—One Among the Manne: Changing Our Course, 50 Case Western Reserve Law Review 203, 204–206 (1999) ( Among the Manne ); William J. Carney, The Legacy of “The Market for Corporate Control” and the Origins of the Firm, 50 Case Western Reserve Law Review 215, 238–239, 243 (1999) (providing statistical compilations of citation to some of Manne’s articles).

  2. See, e.g., Cass, 1999, Among the Manne, at 206–209.

  3. Video of his talk on this subject is available at http://newmedia.ufm.edu/?video=theory-of-constitutional-interpretation. Henry and I were in Guatemala together when he gave this talk, lecturing on different aspects of law-and-economics at the University.

  4. Henry G. Manne, “A Positive Theory of Constitutional Interpretation,” 1997, available at https://www.amazon.com/positive-theory-constitutional-interpretation/dp/B0006RXSAG (“Positive Theory”).

  5. For a discussion of some of Justice Scalia’s contributions to the field of Administrative Law, see, e.g., Ronald A. Cass, Administrative Law in Nino’s Wake: The Scalia Effect on Method and Doctrine, 32 Journal of Law & Politics 277 (2017) (“Scalia Effect”).

  6. See Bendix Autolite v. Midwesco Enterprises, 486 U.S. 488, 497 (1988) (Scalia, J., concurring in judgment).

  7. Manne, 1997, Positive Theory, at 3.

  8. Manne, 1997, Positive Theory, at 3–4.

  9. Manne, 1997, Positive Theory, at 4.

  10. Manne, 1997, Positive Theory, at 5.

  11. See, e.g., Antonin Scalia, Originalism: The Lesser Evil, 57 University of Cincinnati Law Review 849 (1989) (Originalism). See also Gary Lawson, Reflections of an Empirical Reader (or Could Fleming Be Right this Time?), 96 Boston University Law Review 1457 (2016); Saikrishna Prakash, Unoriginalism’s Law without Meaning, 15 Constitutional Commentary 529 (1998); Lawrence B. Solum, Originalist Methodology, 94 University of Chicago Law Review 269 (2017).

  12. Manne, 1997, Positive Theory, at 5, 7–9.

  13. Manne, 1997, Positive Theory, at 6, 9.

  14. See Ronald Dworkin, Law’s Empire 228–238 (Harvard Univ. Press 1986).

  15. See, e.g., Keith E. Whittington, Dworkin’s “Originalism”: The Role of Intentions in Constitutional Interpretation, 62 Review of Politics 197 (Spring 2000).

  16. See, e.g., Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 Yale Law Journal 453, 455 (1989) (“the challenge is to build a constitutional order more just than the one we have inherited”); Bruce Ackerman, The Storrs Lectures: Discovering the Constitution, 93 Yale Law Journal 1013 (1989); Paul Brest, The Misconceived Quest for the Original Understanding, 60 Boston University Law Review 204 (1980); Owen Fiss, State Activism and State Censorship, 100 Yale Law Journal 2087 (1991); Owen Fiss, The Supreme Court, 1978 Term—Foreword: The Forms of Justice, 93 Harvard Law Review 1 (1979). See generally Bruce Ackerman, We the People: Foundations (Belknap Press 1991). To criticize these writings as seeking to legitimate congenial understandings is not to deny the force of some of their critiques of other approaches, either in those approaches’ conceptual difficulties or in their application; nor does it disparage the goals of constitutional reformation associated with these writings. Rather, the criticism is of casting reformation as interpretation. For a discussion of interpretation, see, e.g., Ronald A. Cass, The Rule of Law in America chaps. 4–5 (Johns Hopkins University Press 2001).

  17. See, e.g., Griswold v. Connecticut, 318 U.S. 479, 484 (1965).

  18. Manne, 1997, Positive Theory, at 9.

  19. Manne, 1997, Positive Theory, at 9–10.

  20. Manne, 1997, Positive Theory, at 9–14.

  21. See Manne, 1997, Positive Theory, at 9–11. For an explanation and application of the linguistic tack elided in Henry’s paper (but central to complaints related to much non-interpretive writing), see, e.g., Joseph W. Singer, The Player and the Cards: Nihilism in Legal Theory, 94 Yale Law Journal 1 (1984).

  22. See Manne, 1997, Positive Theory, at 10–12.

  23. See, e.g., Frank H. Easterbrook, Ways of Criticizing the Court, 95 Harvard Law Review 802 (1982); Matthew Spitzer, Multicriteria Choice Processes: An Application of Public Choice Theory to Bakke, the FCC, and the Courts, 88 Yale Law Journal 717 (1979). The more general observation, applied by Judge Easterbrook and Professor Spitzer (also noted by Dean Manne), is Kenneth Arrow, Social Choice and Individual Values 2–3 (Yale University Press, rev. ed. 1963) (explaining difference between individual preferences and rationality in social choice).

  24. Manne, 1997, Positive Theory, at 11.

  25. Manne, 1997, Positive Theory, at 12.

  26. See Manne, 1997, Positive Theory, at 11–12. The “parol evidence” rule provides that only the words of a written agreement—not recollections of oral statements—suffice as evidence of certain contractual undertakings. See, e.g., Samuel Williston, 4 Williston on Contracts § 631, at 948–951 (3d ed. 1961). Academic commentary suggests more complex possibilities for the rule, its application, and its effects. See, e.g., Arthur Corbin, The Interpretation of Words and the Parol Evidence Rule, 50 Cornell Law Quarterly 161 (1965); Eric A. Posner, The Parol Evidence Rule, the Plain Meaning Rule, and the Principles of Contractual Interpretation, 146 University of Pennsylvania Law Review 533 (1998); Stephen F. Ross & Daniel Trannen, The Modern Parol Evidence Rule and Its Implications for New Textualist Statutory Interpretation, 87 Georgetown Law Journal 195 (1995).

  27. See Manne, 1997, Positive Theory, at 12–14.

  28. See Manne, 1997, Positive Theory, at 12–13, referring to the opinion of Justice Douglas for the U.S. Supreme Court in Griswold v. Connecticut, 381 U.S. 476 (1965), noted above.

  29. See Manne, 1997, Positive Theory, at 13–14.

  30. Manne, 1997, Positive Theory, at 14.

  31. See Manne, 1997, Positive Theory, at 15–16.

  32. See Manne, 1997, Positive Theory, at 15–16.

  33. Manne, 1997, Positive Theory, at 16.

  34. See Manne, 1997, Positive Theory, at 17–22.

  35. Manne, 1997, Positive Theory, at 20–21.

  36. See Manne, 1997, Positive Theory, at 20–22.

  37. Manne, 1997, Positive Theory, at 22 (emphasis in original).

  38. See Manne, 1997, Positive Theory, at 22–33.

  39. See Manne, 1997, Positive Theory, at 24–32.

  40. See Manne, 1997, Positive Theory, at 24–25.

  41. See Manne, 1997, Positive Theory, at 33.

  42. Manne, 1997, Positive Theory, at 23.

  43. See Manne, 1997, Positive Theory, at 25.

  44. See Manne, 1997, Positive Theory, at 23–25.

  45. Manne, 1997, Positive Theory, at 27 (emphasis in original).

  46. See Manne, 1997, Positive Theory, at 27–30.

  47. See Manne, 1997, Positive Theory, at 17–20, 31–33.

  48. See, e.g., Dworkin, 1986; Ronald Dworkin, Freedom’s Law: The Moral Reading of the Constitution (Harvard University Press 1996).

  49. See, e.g., Ackerman, 1991; Ackerman, 1984.

  50. See, e.g., Brest, 1980; Erwin Chemerinsky, Making the Case for a Constitutional Right to Minimum Entitlements, 44 Mercer Law Review 525 (1993); Frank Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls’ Theory of Justice, 121 University of Pennsylvania Law Review 962 (1973); Lawrence Gene Sager, Tight Little Islands: Exclusionary Zoning, Equal Protection, and the Indigent, 21 Stanford Law Review 767 (1969).

  51. See, e.g., Stephen G. Breyer, Active Liberty: Interpreting Our Democratic Constitution (Alfred A. Knopf 2005); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press 1980); Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press 2005); Alexander Meiklejohn, Free Speech and its Relation to Self-Government (Harper Brothers 1948).

  52. See, e.g., Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Guttman ed., Princeton University Press 1997); Scalia, 1989, Originalism.

  53. See, e.g., Akhil Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By (Basic Books 2012) (attempting to bridge originalist-textualist and explicitly normative approaches to interpretation); Robert H. Bork, The Tempting of America: The Political Seduction of the Law (Touchstone/Simon & Schuster 1991) (linking arguments over constitutional interpretation to broader political and cultural conflicts); Kramer, 2005; Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Univ. of Kansas 1999); Richard H. Fallon, Jr., How to Choose a Constitutional Theory, 87 California Law Review 535 (1999).

  54. See, e.g., Cass, 2001, at chaps. 4–5; Ronald A. Cass, Weighing Constitutional Anchors: New York Times Co. v. Sullivan and the Misdirection of First Amendment Doctrine, 12 First Amendment Law Review 399 (2013); Ronald A. Cass, Commercial Speech, Constitutionalism, Collective Choice, 56 University of Cincinnati Law Review 1317 (1987) (Commercial Speech); Ronald A. Cass, The Perils of Positive Thinking: Constitutional Interpretation and Negative First Amendment Theory, 34 UCLA Law Review 1405 (1986).

  55. See, e.g., Scalia, 1997; Scalia, 1989, Originalism.

  56. See, e.g., Antonin Scalia, The Rule of Law as a Law of Rules, 56 University of Chicago Law Review 1175 (1989) (Rules). See also Cass, 2001, at 2–19 (describing characteristics of the rule of law); Michael Dorf, Prediction and the Rule of Law, 42 UCLA Law Review 651 (1995) (same).

  57. See, e.g., Cass, 2001, at 17–19; Albert Venn Dicey, Introduction to the Study of The Law of the Constitution 110 (Macmillan 1915) (1885); Friedrich A. Hayek, The Road to Serfdom 80–81 (University of Chicago Press 1944); Michael Oakeshott, The Rule of Law, in On History and Other Essays 119 (Barnes & Noble Books 1983); Michael Dorf, 1995.

  58. See, e.g., Scalia, 1997; Scalia, 1989, Originalism.

  59. See, e.g., Scalia, 1997 (Response); Scalia, 1989, Originalism.

  60. See, e.g., Scalia, 1997; Scalia, 1989, Originalism.

  61. See, e.g., West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 98–99 (1991); Bank One Chicago, N.A. v. Midwest Bank & Trust Co., 516 U.S. 264, 280 (1996) (Scalia, J., concurring in part and concurring in judgment).

  62. Blanchard v. Bergeron, 489 U.S. 87, 98–99 (1989) (Scalia, J., concurring in part and concurring in judgment).

  63. Justice Scalia did contemplate advertence to extrinsic sources when a strict reading of text would leave to obviously absurd results that could not be avoided by reliance on other canons of construction. See, e.g., Green v. Bock Laundry Machine Co., 490 U.S. 504, 527–530 (Scalia, J., concurring in judgment).

  64. For discussion of the use of legislative history, and even more thoroughgoing opposition than expressed by Justice Scalia, see, e.g., Note: Why Learned Hand Would Never Consult Legislative History Today, 105 Harvard Law Review 1005 (1992).

  65. See, e.g., Scalia, 1997.

  66. Scalia, 1997, at 18 (footnote omitted), quoting James M. Landis, A Note on “Statutory Interpretation,” 43 Harvard Law Review 886, 891 (1930) (Justice Scalia noted that, despite his critique, Landis was “a believer in the search for legislative intent.” Scalia, 1997, at 18).

  67. See, e.g., Scalia, 1997, at 17–23.

  68. See Scalia, 1997, at 40–47.

  69. Scalia, 1997, at 40.

  70. See Scalia, 1997, at 18–22, 30–37.

  71. 17 U.S. (4 Wheaton) 316 (1819) (McCulloch).

  72. Scalia, 1997, at 37 (quoting McCulloch, 17 U.S., at 407).

  73. See Scalia, 1997, at 37–41.

  74. Some of this is implicit in Justice Scalia’s exposition of his views on interpretation in his Tanner lectures, though more focused on the reasons he is willing to reach more widely for cues to constitutional text’s meaning than for extrinsic evidence of statutory meaning. See, e.g., Scalia, 1997, at 38. See also District of Columbia v. Heller, 554 U.S. 570 (2008); Hamdi v. Rumsfeld, 542 U.S. 507, 554 (2004) (Scalia, J., dissenting); Harmelin v. Michigan, 501 U.S. 957 (1991).

  75. See Scalia, 1997, at 13–23. When we taught together, Nino frequently invoked Alexis de Tocqueville’s observations about American judges and the reasons the populace felt comfortable with their power over other government officials to illustrate the importance of constitutional constraints on the cases judges can decide and the authority on which they can base their decisions. The point made by de Tocqueville and Justice Scalia (and by Chief Justice Marshall in Marbury v. Madison and Alexander Hamilton before that), is that American judges are empowered only to decide cases based on law and, further, are permitted to pronounce on the meaning of law—and legislation’s consistency with the law embodied in the Constitution—only when that is necessary to resolution of disputes initiated by others. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); The Federalist Papers, No. 78 (Hamilton); Alexis de Tocqueville, 1 Democracy in America chap. 6 (J.P. Mayer ed., Anchor Books 1969) (1835).

  76. See Scalia, 1997, at 26, 147.

  77. See Scalia, 1997, at 40–47.

  78. Scalia, 1997, at 13; see id., at 37–47.

  79. See Scalia, 1997, at 40–41, 46–47.

  80. See Scalia, 1997, at 38–39, 46–47.

  81. See Scalia, 1997, at 38–47.

  82. See, e.g., Ackerman, 1991; Dworkin, 1986; Dworkin, 1996.

  83. See, e.g., Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on Dworkin’s “Moral Reading” of the Constitution, 65 Fordham Law Review 1269 (1997). See also Ely, 1980, at 44–55.

  84. Harry H. Wellington, The Importance of Being Elegant, 42 Ohio State law Journal 427, 430 (1981).

  85. See Wellington, 1981, at 430–434.

  86. Wellington, 1981, at 427 (footnotes omitted). The cases referenced are, in order, Lochner v. New York, 198 U.S. 45 (1905); Brown v. Board of Education, 347 U.S. 483 (1954); and Roe v. Wade, 410 U.S. 113 (1973).

  87. See, e.g., McConnell, 1997.

  88. 487 U.S. 654 (1988) (Morrison).

  89. Morrison, 487 U.S., at 699 (Scalia, J., dissenting).

  90. The Federalist No. 48 (James Madison) (1788).

  91. See, e.g., Plaut v. Spendthrift Farms, 514 U.S. 211 (1994); Mistretta v. United States, 488 U.S. 361, 417–422 (1989) (Scalia, J., dissenting).

  92. See Manne, 1997, Positive Theory, at 22–33.

  93. See Manne, 1997, Positive Theory, at 15–23.

  94. Manne, 1997, Positive Theory, at 22–25.

  95. Manne, 1997, Positive Theory, at 22–24.

  96. Manne, 1997, Positive Theory, at 23–24.

  97. U.S. Constitution, Article I, sections 7–8; id., at Article II, section 2.

  98. The argument is really two arguments: one on foresight respecting the problems to be addressed (how much did the drafters think about problems that might occur in the future or how close did the category of problems foreseen have to match the category of problems that later occurred), the other on the age or perspective of the solution proposed (how much credit should be given to a solution based in the thinking of men whose world-view was that of two centuries or more ago). The arguments are interesting only if the judge is not limited to implementing the actual document before him or her.

  99. See, e.g., Nomination of Robert H. Bork to Be Associate Justice of the Supreme Court of the United States: Hearing before the Senate Committee on the Judiciary, 100th Congress, at 249 (1987) (comparing a provision that was not clearly interpretable by judges as equivalent to one covered by an ink-blot).

  100. U.S. Constitution, Article II, section 1.

  101. See, e.g., Crawford v. Washington, 541 U.S. 36 (2004); Kyllo v. United States, 533 U.S. 27 (2001); City of Riverside v. McLaughlin, 500 U.S. 44, 59 (1991) (Scalia, J., dissenting).

  102. Maryland v. Craig, 497 U.S. 836, 870 (Scalia, J., dissenting).

  103. See, e.g., Glossip v. Gross, 135 S. Ct. 2726, 2747 (2015) (Scalia, J., concurring); Atkins v. Virginia, 536 U.S. 304, 337–338 (2002) (Scalia, J., dissenting); Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833, 979 (1992) (Scalia, J., dissenting); SCALIA, 1997, at 145–147.

  104. But see, e.g., Cass, 1987, Commercial Speech; Ronald A. Cass, Principle and Interest in Libel Law After New York Times: An Incentive Analysis, in The Cost of Libel: Economic and Policy Implications 69 (Everette E. Dennis & Eli M. Noam eds., Columbia University Press 1989); Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Harvard University Press 1985); Richard A. Posner, Free Speech in an Economic Perspective, 20 Suffolk Law Review 1 (1986).

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  1. Boston University School of Law, Boston, MA, USA

    Ronald A. Cass

  2. Center for the Rule of Law, Great Falls, VA, USA

    Ronald A. Cass

  3. Cass & Associates, PC, Great Falls, VA, USA

    Ronald A. Cass

  4. Center for the Study of the Administrative State, Arlington, VA, USA

    Ronald A. Cass

  5. International Centre for Economic Research, Turin, Italy

    Ronald A. Cass

  6. 10560 Fox Forest Drive, Great Falls, VA, 22066, USA

    Ronald A. Cass

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Cass, R.A. Quality and quantity in constitutional interpretation: the quest for analytic essentials in law. Eur J Law Econ 46, 183–203 (2018). https://doi.org/10.1007/s10657-017-9572-5

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