How to Judge a Constitution Properly

[sent to conlaw prof re: whether one should be a formalist or a "policy judge" when making constitutional rulings]
 
... well, one of the things I would ask is why formalism is juxtaposed against "those who see that a constitution is not simply a legal document." It seems to me that Dworkin is the place where non-formalists who still desire better "legal" answers can reside. We wouldn't want to say that rigorous and serious conceptualism would never be part of any epistemological program. And we surely would not want to say -- particularly of American constitutionalism -- that the program shouldn't be justificatory. Surely these are the wrong paths. We would rather want to say that, somehow, the right answer is the intersection between a large policy direction evidenced by the course culture is taking in history (right now), and the reasonable allowances that such is afforded by the formally articulated legality. In other words, if you cheat words, you do it only for large cultural and historical trends and with inferences that do the least injustice to the
words. 

You know, one of the problems with living constitutionalists is that they are very often skeptics without properly knowing philosophy. If, instead of tearing down the idea of structured discretion, they would simply build a program for their desires consistent with it -- like Dworkin does -- the debate would become things like "the Ninth Amendment can be used for ..." rather than "quoting anything is wrong because the constitution is more than words."

And I don't see at all why Americans in particular should NOT accept harsh consequences here and there when the rules of autopilot say so. One of the reasons why is for the same reason that we derive a law-and-society framework -- this is what American culture really is. Have you ever watched how crazy football has become? So much of the game is about whether the rule was followed (replay angles, etc). If the rule isn't followed, the culture cries foul. This is not a natural law culture by any stretch of the imagination, and it also isn't a Rousseauean political culture, no matter what the left thinks.

Now, I am neither a positivist nor a formalist. I think positivism and positivistic culture can be seriously problematic. But what I am saying is that our system is such that judges really can only INTELLIGENTLY innovate (with legitimacy) and that, when they do, they must show how it fits within "core articulated ideas." We can dispute which ideas are core, but we really shouldn't be disputing that (a) the core can be found (in articulated format); and (b) that it must govern.

So much of what the left calls "politics" is nothing but poor epistemology.  

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
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