FALLON 1987 Constructivist Coherence Theory of Constitutional Interpretation

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Citation: 100 Harv. L. Rev. 1189 1986-1987
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APRIL 1987
VOLUME 100
NUMBER 6
HARVARD LAW REVIEW_

A CONSTRUCTIVIST COHERENCE THEORY OF
CONSTITUTIONAL INTERPRETATION
Richard H. Fallon, Jr.*
Judges and constitutional lawyers generally acknowledge that a variety of
different kinds of argument have a legitimate place in constitutional interpretation and debate. Among the kinds of argument commonly invoked are
arguments based on the plain or necessary meaning of the constitutional text;
arguments concerning the framers' intent; arguments of "constitutionaltheory"; arguments based on judicial precedent; and arguments asserting moral
or policy values. In this Article, Professor Fallon address what he terms
"the commensurability problem": the important question of how the different
kinds of argument fit together or weigh against each other in a single,
presumptively coherent, constitutional calculus. Rejecting the solutions to
the commensurability problem that are latent in leading constitutional theories, Professor Fallon seeks a solution in an interpretive account of the
implicit normative structure of our actual constitutionalpractice. His "constructivist coherence theory" holds that the various categories of constitutional argument, though distinct, are sufficiently interconnected so that it
usually is possible for a constitutional interpreter to reach constructivist
coherence - a reflective equilibrium in which arguments of all five types,
following a process of reciprocal influence and occasionalreassessment, point
toward or at least are not inconsistent with a single result. In those few
instances in which coherence cannot be achieved, Professor Fallon argues
that the various types of argument must be ranked hierarchically.
INTRODUCTION
C ONSTITUTIONAL
law has a commensurability problem. The

problem arises from the variety of kinds of argument that now
are almost universally accepted as legitimate in constitutional debate
and interpretation. With only a few dissenters, 1 most judges, lawyers,
and commentators recognize the relevance of at least five kinds of
constitutional argument: arguments from the plain, necessary, or historical meaning of the constitutional text; arguments about the intent
of the framers; arguments of constitutional theory that reason from
the hypothesized purposes that best explain either particular constiAssistant Professor of Law, Harvard University.
See infra pp. 1209-23 (discussing "privileged factor" theories).
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tutional provisions or the constitutional text as a whole; arguments

based on judicial precedent; and value arguments that assert claims
about justice or social policy.
The commensurability problem is to show how arguments of all
of these various kinds fit together in a single, coherent constitutional
calculus. A slightly caricatured example illustrates the challenge. Bethel School District No. 403 v. Fraser2 presented the question of
whether a high school student's speech to a school assembly, which
consisted almost entirely of sexual innuendo, enjoyed constitutional
protection under the first and fourteenth amendments. 3 Without probing the hypothetical thought process too deeply, it is possible to imagine a Supreme Court justice concluding, provisionally, that the strongest argument based directly on the constitutional text suggested that
the speech ought to be protected: when the first amendment, which
is applicable to the states through the fourteenth amendment, says
that "no law" shall abridge the freedom of speech, its literal proscription should be taken as absolute. 4 Thus, if the textual language alone
were determinative, the student's speech would have received constitutional protection.
Turning to arguments about the framers' intent, however, our
hypothetical justice might have found that the student's remarks were
not the sort of speech that the framers were concerned about protecting. Although "we cannot say with certainty precisely what effect the
framers of the Bill of Rights intended the first amendment to have
with respect to freedom of expression," she might have concluded,
"we can say that at most they intended it to prohibit any system of
5
prior restraint and to modify the*common law of seditious libel." If
the framers' intent independently controlled the outcome, the justice
might therefore have reasoned, the student's speech could be punished
without offending the Constitution.
Plausible arguments of constitutional theory would support either
outcome. Suppose, however, that our imagined justice was most
impressed by an argument, based on the federal structure of American.
government, that called for deference to state authority in cases where
the state had not tried to thwart the communication of a particular
message. 6 This conclusion would have accorded with that reached
concerning the framers' intent: the speech should not be protected.
2 io6 S. Ct. 3159 (1986).

3 See id. at 3162-63.
4 See H.
BLACK, A CONSTITUTIONAL FAITH 45 (1968).
5 Perry, Interpretivism, Freedom of Expression, and Equal Protection, 42 OHIO ST. L.J.
261, 287 (i98i) (footnote omitted). See generally L. LEVY, LEGACY OF SUPPRESSION (i960).
6 Cf. J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEw IO5-6 (1980)
(arguing that "strict review" of restrictions on free speech is not always appropriate when the
government is not trying to stifle communication of a particular message).
1987l
CONSTRUCTIVIST COHERENCE
1191
But it would have diverged from the provisional conclusion derived

from the most natural reading of the constitutional language.
Arguments based on precedent might have added to the emerging
pattern of disparity. Supreme Court authority establishes that students do not shed their first amendment rights at the schoolhouse
door. 7 Precedent also indicates that vulgar speech is protected in a
variety of settings.8 For these reasons a justice might have concluded
that the best arguments of precedent demonstrated that the speech
merited constitutional protection.
Moral and policy arguments would have remained for consideration. If we suppose that the imagined justice determined that as a
policy matter, the states should be allowed not only to preserve decorum but also to teach decency in the public schools, 9 her overall
assessment of the various arguments would have reflected a sharp
division. Arguments in two categories - those involving the plain
meaning of the constitutional language and those based on precedent
would have indicated that the speech deserved constitutional protection. But arguments of three other types - based on the framers'
intent, constitutional theory, and considerations of policy or justice would have pointed to the contrary conclusion. What, in these circumstances, ought the justice to have done? Should arguments in one
or more of the categories necessarily have taken precedence? Was
some sort of balancing required and, if so, what sort? Or was the
problem of the best arguments in different categories yielding opposite
results somehow false or illusory?
These questions, which define what I shall call the "commensurability problem," are among the most important in constitutional
law.' 0 Indeed, it is impossible to reason or argue about the correct
7 See Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969).
8 See, e.g., Cohen v. California, 403 U.S. 15 (197).
9 See Bethel School Dist. v. Fraser, io6 S.Ct. 3159, 3165 (1986) (finding that "it is a highly
appropriate function of public school education to prohibit the use of vulgar and offensive terms
in public discourse"); Board of Educ. v. Pico, 457 U.S. 853, 885, 889-91 (1982) (Burger, C.J.,
dissenting).
10 The usefulness of my characterization of this problem as one of "commensurability" does
not depend on the merits of contending positions in debates in the philosophy of science about
the possibility of there being "incommensurable" scientific "theories," "paradigms," "frameworks,"

or "discourses." See, e.g., R. BERNSTEIN, BEYOND OBJECTIVISM AND RELATIVISM 51-oS
(1983); T. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (2d ed. 1970); R. RORTY,
CONSEQUENCES OF PRAGMATISM 5-17 (982). In the context of that debate, incommensurability
is a relation between two or more theories or discourses; the relation obtains when two theories
or discourses cannot be translated into each other without loss of meaning and disputes cannot
be resolved by reference to shared criteria. See T. KUHN, supra, at 198-204; R. RORTY,
PHILOSOPHY AND THE MIRROR OF NATURE 322-33 (1979). I make limited use of a related
incommensurability of particular conceptions of what certain kinds of constitutional argument

ought to be about. See infra notes 226-27 and accompanying text. Outside of this narrow
context, however, my use of the term "commensurability" generally follows ordinary rather than
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decision in hard cases - cases made hard by the actual or apparent

tendency of different kinds of arguments to point to divergent results
- without a theory of how different kinds of constitutional argument
appropriately contribute to a single decision. Yet, astonishingly, the
commensurability problem has received little explicit attention either
in judicial opinions or in the scholarly constitutional literature.
This Article on the commensurability problem has three related
objectives. The first is to illuminate the nature of the problem as it
currently confronts lawyers and judges. In order to do so, I shall
further develop the typology of constitutional argument to which I
have already appealed. I shall also examine the solutions to the
commensurability problem that are implicit in several well known
constitutional theories and in an intuitively plausible rival.
My second objective is to expound and commend a particular
approach to the commensurability problem in particular and to issues
of constitutional theory in general. A familiar distinction sharply
differentiates two kinds of legal theories: descriptive and normative.
Rejecting that dichotomy, I shall argue in favor of what Professor
Ronald Dworkin has recently termed an "interpretive" approach that
has both a descriptive and a normative aspect."
My third and final objective is to propose an interpretive constitutional theory to explain how the various kinds of constitutional
argument combine or weigh against each other within the implicit
norms of our constitutional practice. 12 The "constructivist coherence
any specialized or technical usage. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY
456 (198i) (defining "commensurability" as "the quality or state of being commensurable" and
"commensurable" as "having a common measure").
1 See R. DWORKIN, LAW'S EMPIRE 4-14, 45-86 (1986). Roughly speaking, an "interpretive"
approach to constitutional theory embodies four basic assumptions. First, constitutional interpretation is a "practice" with an internal normative structure. See infra pp. 1232-37. Second,
to participate in the practice requires conformity to the practice's implicit rules or norms. See
infra notes 211-13 and accompanying text. Third, "[viery often, perhaps even typically, the
raw behavioral data of the practice - what people do in what circumstances - will underdetermine" any purely descriptive or positive theory of the practice's implicit norms or the values
or purposes that give the practice its nature. R. DWORKIN, supra, at 52. The data, in other
words, will be consistent with "different and competing" accounts of the practice's rules, nature,
or purposes. Id. Fourth, "[i]f the raw data do not discriminate between these competing
interpretations, each interpreter's choice must reflect his view of which interpretation proposes
the most value for the practice - which one shows it in the better light, all things considered."
Id. at 52-53. For a fuller account, and for an explanation of where I depart from Dworkin as
well as where I follow him, see pages 1231-37 below.
12Although my claims in this Article about the practice of constitutional interpretation will
often be framed in very general terms, several qualifications are necessary. As in most writing
about constitutional theory, the bulk of my arguments and assertions takes as its implicit
paradigm decisionmaking, advocacy, and argumentation in the Supreme Court and in lower
court cases in which there is no Supreme Court precedent closely on point. Although the result
may be a theory that is excessively Supreme Court focused, this approach has advantages. A
theory that takes the Supreme Court as its paradigmatic decisionmaker is able to address directly
19s71
1193
theory" that I offer has two main aspects. 13 The first asserts that the
implicit norms of our constitutional practice call for a constitutional
interpreter to assess and'reassess the arguments in the various categories in an effort to understand each of the relevant factors as prescribing the same result. The desirability and plausibility of this
strategy, and its implied claim that coherence of this kind is most
often attainable, may seem counterintuitive. But within our legal
culture, it is the rare judicial opinion, the anomalous brief, the unusual
scholarly analysis that describes the relevant kinds of arguments as
pointing in different directions. Typically, legal arguments - including those of judicial and even Supreme Court opinions - find the
best arguments in all of the categories to support, or at least not to
be inconsistent with, a single result. 14 Nor, I shall argue, does this
familiar alignment of arguments reflect sheer intellectual dishonesty
or rhetorical or argumentative excess. The various kinds of constitutional argument are substantially interrelated and interdependent.
Reciprocal influences among them make it possible most of the time
to achieve constructivist coherence. The role of value arguments is
especially important in this respect. I shall be particularly concerned
with showing how value arguments infuse and inform the arguments
that are advanced within other categories.
The second element of my theory comes into play only when the
effort to achieve coherence does not succeed. In such cases, the
categories of argument are assigned a hierarchical order in which the
highest ranked factor clearly requiring an outcome prevails over lower
ranked factors. In particular, I shall argue, the implicit norms of our
the central question of how our system assumes that constitutional issues are and ought to be
settled by the one authority clearly entitled to decide every case on the basis of its own
understanding of highest constitutional principle. Similarly with respect to legal advocacy, a
theory developed around Supreme Court argumentation answers the revealing question of how
our practice assumes that lawyers ought to argue constitutional issues when questions of highest
constitutional principle are most clearly open for decision.
If the Supreme Court focus is distorting, it may be particularly so with respect to the role
played in our constitutional practice by the law school professoriat. Undoubtedly, legal scholars
have an important part in our constitutional practice and, more than judges or practicing
lawyers, they may assume a relatively distinctive and detached role. Even here, however, the
vast bulk of legal scholarship tends to accept and to argue within the implicit and explicit
standards established by Supreme Court practice.
13 For a discussion of the significance of the name "constructivist coherence theory," see note
230 below.
14This is not to say that legal arguments always, or even typically, refer explicitly to all of
the factors that sometimes are recognized as relevant. In some cases, one kind of argument is
emphasized, while others are omitted entirely. Even when this occurs, however, lawyers, judges,
and even Supreme Court justices rarely acknowledge that some relevant factor calls for a result
different from that which is being reached. M'or is it common for dissenting opinions to argue
that the majority has erred by ignoring a relevant factor. Even when factors of general relevance
are not referred to explicitly, it thus seems to be assumed that the conclusions to which they
would point would at least be not inconsistent with the result reached.
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[Vol. ioo:ii8 9
constitutional practice accord the foremost authority to arguments

from text, followed, in descending order, by arguments concerning the
framers' intent, constitutional theory, precedent, and moral and policy
values. But a caution is in order. For reasons to be explored later,
the highest ranked categories are those in which any particular argument, in hard cases, is least likely to prove uniquely persuasive or
determinate. Arguments from text and from the framers' intent therefore possess less independent influence than their hierarchical status
suggests. By contrast, although value arguments occupy the lowest
rung in the hierarchy, they are likely to exert a very powerful influence
on conclusions within other categories in a successful effort to reach
coherence.
A brief outline of the structure of the argument may prove helpful.
Part I offers a more complete account of the five types of argument
that generally predominate in constitutional debate. Part I then tests
the adequacy of several leading constitutional theories and of a plausible rival. Part III explains and defends the interpretive approach
from which I devise my answer to the commensurability problem.
After an introduction to my proposed constructivist coherence theory
in Part IV, Part V provides a detailed explanation of how the theory
works with respect to each of the kinds of constitutional argument.
Finally, Part VI demonstrates my theory's capacity to explain the
debate within and surrounding some controversial cases in constitutional law.
I. A TYPOLOGY OF CONSTITUTIONAL ARGUMENT

The arguments offered by constitutional lawyers, and accepted as
providing grounds that are at least relevant to constitutional decisionmaking, are highly diverse. But judicial opinions, briefs, and many
scholarly articles tend to rely on five types of authority and argument,
several of which are defined with sufficient looseness so as not to
exclude arguments that others might classify differently.' 5 The principal purpose of this Part is to develop a typology of constitutional
argument and to establish that each category has a familiar and
accepted place in our constitutional practice. In addition, some significant disputes about the force of arguments within the categories
are pointed out. Despite flagging the issue at several points, I do not
attempt in this Part to give a fully developed account of the degree
of autonomy of, or interdependence among, the five categories of
argument that I identify. The question of autonomy later becomes
Is For other typologies of constitutional argument, see P. BOBBITT, CONSTITUTIONAL FATE
I-9ig (i982), and Moore, A Natural Law Theory of Interpretation, 58 S. CAL. L. REV. 279
(1985).
1087]
1195
crucial, both to my own theory and to my criticisms of those of others.

But the issue can fairly be postponed. Although the categories do
sometimes blur or otherwise depend on one another, it would be a
plain if familiar error to suppose that "unless a distinction can be
' 16
made rigorous and precise it isn't really a distinction at all."
A. Arguments from Text
Arguments from text play a universally accepted role in constitutional debate. 17 If there is any surprise, it is how seldom the text is
relied on directly, in comparison with arguments based on historical
intent, precedent, and social policy or moral principle.' 8 But perhaps
this situation only emphasizes the text's importance. The text, and
its plain language, are taken for granted. Where the text speaks
clearly and unambiguously - for example, when it says that the
President must be at least thirty-five years old - its plain meaning is
dispositive. 19 Where the text is ambiguous or vague, other sources
are consulted as guides to textual meaning.
If this account is accurate - as I believe that generally it is
then it will be helpful to recognize an important distinction between
arguments about the text and arguments from the text. In one sense,
all constitutional arguments - including, for example, arguments
concerning precedent and the intent of the framers - are about the
text and what it should be held to mean. It is, after all, a constitution
we are interpreting. From arguments that are merely about the meaning of the text, we can distinguish arguments from the text: arguments
that purport to resolve a question by direct appeal to the Constitution's
plain language. These are arguments that the plain language of the
Constitution either requires or forbids a certain conclusion, irrespective of what might be said about that conclusion on other grounds. 20
16Searle, The World Turned Upside Down, N.Y. REv. BOOKS, Oct. 27, 1983, at 74, 78.
17See, e.g., Richardson v. Ramirez, 418 U.S. 24, 54-55 (1974); United States v. Butler, 297
U.S. 1, 62-64 (1936); Cohens v. Virginia, i9 U.S. (6 Wheat.) 264, 381 (1821) (holding that
"authoritative language of the American people" must be respected); P. BOBBITT, supra note 15,
at 24-28; Moore, supra note i5, at 288-338; Perry, The Authority of Text, Tradition and Reason:
A Theory of Constitutional "Interpretation,"58 S. CAL. L. REV. 551, 554-55 (985); Schauer,
An Essay on ConstitutionalLanguage, 29 UCLA L. REv. 797 (1979).
18See, e.g., Brest, The Misconceived Questfor the Original Understanding,60 B.U.L. REv.
204, 234 (198o) (arguing that explicit reliance on the text has played a small role in comparison
with elaboration of judicial precedents); Grey, Do We Have an Unwritten Constitution?, 27
STAN. L. REv. 703, 707-08 (1975) ("In the important cases, reference to and analysis of the
constitutional text plays a minor role."); Jones, The Brooding Omnipresence of Constitutional
Law, 4 VT. L. REv. 1, 28 (1979) (noting that as the text "gets older and interpretive precedents
accumulate, the focus of professional and judicial attention tends to shift from the text and
history to judicial precedents").
19But see Peller, The Metaphysics of American Law, 73 CALIF. L. REv. 1151, 1174 (x985).
20 An example may clarify the distinction. The first amendment provides that "Congress
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One reason we see relatively few arguments from the text is that
the language of the Constitution, considered as a factor independent
from the other kinds of argument familiar in constitutional debate,
resolves so few hard questions. 21 Nonetheless, arguments from text
can fulfill three functions. Occasionally, an argument from text will
require a unique conclusion - for example, that the President must
be at least thirty-five years old. 2 2 More commonly, arguments from
the text achieve the somewhat weaker but nontrivial result of excluding one or more positions that might be argued for on nontextual
grounds. 23 Thus, although the text of the eighth amendment may not
tell us precisely what "cruel and unusual punishments" are, 24 the
language does require that the amendment's prohibition apply only to
actions that can plausibly be described as "punishments." 2 5 Finally,
among the meanings that are not excluded by arguments from text, a
narrowly text-focused reading will sometimes yield the conclusion that
some are more plausible than others.
In talking about "arguments from text," the "meaning" of the text,
and even its "plain meaning," I do not deny that any attribution of
shall make no law... abridging the freedom of speech." U.S. CONST. amend. I. In deciding
first amendment cases, Justice Hugo Black often emphasized "no law" and argued that this
language established the unconstitutionality of any statute punishing speech. J. ELY, supra note
6, at 1O5; see H. BLACK, supra note 4, at 45. His was an argument from, as well as about,
the text. Justice Harlan, on the other hand, typically espoused a methodology in which he
balanced competing arguments to determine what rights existed. Rejecting Justice Black's
argument from text as unpersuasive, Justice Harlan found that the plain language of the text
left open a range of possible meanings, with the choice among them appropriately determined
by other factors. See, e.g., Konigsberg v. State Bar, 366 U.S. 36, 49 (g61) (rejecting "the view
that freedom of speech and association, as protected by the First and Fourteenth Amendments,
are 'absolutes' . . . in the sense that the scope of that protection must be gathered solely from
a literal reading of the First Amendment" (citation omitted)).
21The first amendment again provides an apt example. Even if read in wholly literal terms,
the language does not forbid abridging all speech, but only "the freedom of speech." See A.
MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 21 (ig6o).
It is by no means obvious what "the freedom of speech" encompasses. Cf. Konigsberg, 366 U.S.
at 49 & n.io (noting that an "absolutist" view that the first amendment protects all speech
"cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity,
perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and
the like").
22 But see Peller, supra note ig, at 1174.
23 See Schauer, supra note 17, at 802-12, 824-31. Although I cannot argue the point here,
I acknowledge that certain post-structuralist, deconstructionist writers would regard as contentious the claim that the range of possible meanings of any text is significantly constrained. See,
e.g., Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997, ioo607 (1985); Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1, 9-25
(1984).
24 U.S. CONST. amend. VIII.
2S Some incidents cannot be so described. Cf. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979)
(relying in part on an argument from the text that the government's infliction of harm could
not be "punishment" in the constitutional sense unless it occurred subsequent to criminal conviction); Ingraham v. Wright, 430 U.S. 651, 664 (1977) (same).
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CONSTR UCTIVIST COHERENCE
1197
meaning requires a reader as well as a text, or that readers inevitably

will be infused with, and thus have their interpretations influenced,
26
if not determined, by assumptions, conventions, and morality.
also assume that the reader, even in assessing arguments about "plain
meaning," will understand that she is reading a constitutional text,
which implies that the language is situated in an interpretive tradition
and must be read with at least a tacit awareness of the range of
extratextual concerns that constitutional interpretation conventionally
takes into account. 27 Nevertheless, the labeling of "arguments from
text" as a distinct category of argument presupposes that it is possible
to read the Constitution with more or less of a narrowly textual
focus.
28
One further complication needs discussion. Beneath the general

agreement that arguments from text are legitimate and important in
the practice of cons itutional interpretation lies a significant distinction
and source of disagreement. There are at least two possible conceptions of the nature of arguments from text. One is "originalist": 29 to
determine the meaning of the text, we must inquire into what it meant
at the time of its ratification. 30 From another view, however, it is the
essence of arguments from text that they appeal directly to contem26 There is a raging debate about the precise characterizations of the elements that lead
particular interpreters to reach particular conclusions at particular times. Among the leading
contributions to the philosophical debate are H. GADAMER, TRUTH AND METHOD (1982); E.
HIRSCH, VALIDITY IN INTERPRETATION (1967); and S. FISH, Is THERE A TEXT IN THIS CLASS?
THE AUTHORITY OF INTERPRETIVE COMMUNITIES (i98o). For an intellectually accessible in-
troduction to this literature, see Hoy, Interpreting the Constitution: Hermeneutical and PoststructuralistPerspectives, 58 S. CAL. L. REV. 135 (1985). Important and controversial contributions to the legal literature include R. DWORKIN, cited in note ii above; R. DWORIN, A
MATTER OF PRINCIPLE 146-76 (1985); Brest, Interpretation and Interest, 34 STAN. L. REV.
765, 771 (1982); Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 97
HARV. L. REV. 4 (1983); Fish, Fish v. Fiss, 36 STAN. L. REV. 1325 (1984); Fish, Working on
the Chain Gang: Interpretation in Law and Literature, 6o TEX. L. REV. 551 (1982) [hereinafter
Chain Gang]; Fiss, Comment, Conventionalism, 58 S. CAL. L. REv. 177 (1985); Fiss, Objectivity
and Interpretation, 34 STAN. L. REV. 739 (1982); Levinson, Law as Literature, 6o TEX. L.
REV. 373 (1982); and White, Law as Language: Reading Law and Reading Literature, 60 TEX.
L. REv. 415 (1982).
27 See Brest, supra note 18, at 206; Fish, Fiss v. Fish, supra note 26, at x335-36.
28 See Moore, supra note 15, at 320-2I.
29 For a fuller discussion of "originalism" as a fully developed constitutional theory, see pages
1211-14 below.
30 See, e.g., South Carolina v. United States, 199 U.S. 437, 448 (1905) ("The Constitution
is a written instrument. As such, its meaning does not alter. That which it meant when adopted
it means now."); T. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST
UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 55 (Da Capo Press
ed. 1972) (ist ed. 1868) ("The meaning of the Constitution is fixed when it is adopted, and it is
not different at any subsequent time when a court has occasion to pass upon it."); Brest, supra
note IS, at 208-09; Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REv. 353, 373-77
(i98i); Munzer & Nickel, Does the Constitution Mean What it Has Always Meant?, 77 COLUM.
L. REV. 1029, 1043-44 (1977).
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porary meanings. 3 1 In developing a typology of constitutional argument, it is enough to recognize that both types of arguments from the
text can and do get made. Consideration of how these competing
claims get resolved must await later parts of this Article.
B. Arguments About the Framers' Intent
Searches for the meaning of a constitutional provision frequently
involve inquiries into the intent of the framers and ratifiers. 3 2 Controversy abounds concerning the weight that intent ought to have.
Although "interpretivists" view the intent of the framers as controlling, 33 most other constitutional lawyers regard intent as entitled to
only some, not very clearly specified, weight. 34 Moreover, several
important scholars have recently argued that the intent of the framers
generally has no justifiable place in constitutional argument. 35 But
this form of nonintentionalism is more plausibly viewed as a prescriptive proposal than as an account of existing practice. It is relatively
uncontroversial that the Supreme Court regards the framers' intent as
36
an important factor in constitutional adjudication.
Notoriously, searches for intent divide into several types. 3 7 One
helpful division distinguishes between "specific" or "concrete" and
31 See P. BOBBITT, supra note I, at 25-26; Perry, supra note 17, at 564-65.
32 See, e.g., Ford v. Wainwright, io6 S. Ct. 2595, 2600-02 (1986); Marsh v. Chambers, 463
U.S. 783, 788 (x983); P. BOBBITT, supra note 15, at 9-24; Monaghan, supra note 30, at 37579.
33See infra pp. 1209-17.
34 See, e.g., Brest, supra note 18, at 224, 229-34; Perry, supra note 17, at 569-70.
35 See R. DwoRKIN, supra note ii, at 359-81; Moore, supra note I5, at 338-58; Simon,
The Authority of the Framers of the Constitution: Can OriginalistInterpretationBe Justified?,
73 CALIF. L. REV. 1482 (1985); see also Sandalow, ConstitutionalInterpretation, 79 MICH. L.
REv. 1033, io62-64 (i981) (arguing that although there has been little incentive to develop an
interpretive framework justifying departures from the framers' intentions, it is mistaken to think
that the framers' intentions and expectations furnish even a "core" of constitutional meaning
that must be respected).
36 See cases cited supra note 32. To deny this assertion, it would be necessary to adopt a
thoroughly "realist" attitude toward arguments from the framers' intent. On this interpretation,
even though the Supreme Court frequently talks about the intent of the framers, the Court
manipulates its findings, or adjusts the level of abstraction at which the framers' intent is
specified, see infra text accompanying notes 37-41, in order to rationalize results reached on
other grounds. I certainly have no quarrel with the common observation that the Supreme
Court frequently relies on poorly executed historical scholarship to identify the intent of the
framers. See Kelly, Clio and the Court: An Illicit Love Affair, x965 SuP. CT. REv. ixg. Nor
would I question that, when the Court does so, result-orientation frequently provides the most
plausible explanation. But the realist interpretation of the role of the framers' intent is ultimately
unpersuasive, because it mischaracterizes the phenomenology of constitutional argument and
interpretation: it omits the sense of the judge or constitutional lawyer that, as she searches the
legislative history, it does and ought to matter what she finds there.
37 See, e.g., Brest, supra note 12, at 223; Speech by Judge Robert H. Bork (Nov. x8, 1985),
reprinted in THE GREAT DEBATE: INTERPRETING OUR WRITTEN CONSTITUTION 43, 47-48
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"general" or "abstract" intent. Specific intent involves the relatively

precise intent of the framers to control the outcomes of particular
types of cases. For example, legal historians generally agree that the
authors of the first amendment had the clear and self-conscious ob-
jective of prohibiting prior restraints on publication. 38 This, in other

words, was a specific intent of the framers. Abstract intent refers to
aims that are defined at a higher level of generality, sometimes entailing consequences that the drafters did not specifically consider and
that they might even have disapproved. An example comes from
equal protection jurisprudence. The authors of the fourteenth amendment apparently did not specifically intend to abolish segregation in
the public schools. 39 Yet they did intend generally to establish a
regime in which whites and blacks received equal protection of the
laws 40 - an aspiration that can be conceived, abstractly, as reaching
far more broadly than the framers themselves specifically had intended. Despite the absence of any relevant specific intent, this abstract intent is consistent with and supports the conclusion that the
fourteenth amendment forbids government segregation based on
race. 4 1 It clearly is an interesting and important question how the
choice is and ought to be made between the types of intent - especially between specific and abstract intent - that sometimes are resorted to in constitutional argument. I shall return to this issue in
Parts IV and V.
(Federalist Society 1986). The most prolific expositor of distinctions has been Professor Dworkin.
See, e.g., R. DWORKIN, TAKING RIGHTS SERIOUSLY 134-37 (1977) (distinguishing the "concepts"
that the framers incorporated into the Constitution from their "conception" of what, in particular,
those concepts require); R. DWORKIN, A MATTER OF PRINCIPLE, supra note 26, at 44 (distinguishing the framers' interpretive hopes from their interpretive expectations).
38 See Perry, supra note 3, at 287.
39 See R. BERGER, GOVERNMENT BY JUDICIARY 117-33 (1977); Bickel, The Original Understanding and the Segregation Decision, 69 HARv. L. REv. 1, 58-59 (1955). Even Berger's critics
generally have not disputed this point. Perry, supra note 3, at 292 n.131; see Soifer, Protecting
Civil Rights: A Critique of Raoul Berger's History, 54 N.Y.U. L. REv. 651, 705 (I979).
40 See generally Bickel, supra note 39.
41 See Brown v. Board of Educ., 347 U.S. 483 (i954). The situation would of course be
different and more complicated if the framers had specifically and explicitly intended that the
equal protection clause not under any circumstances be construed to require desegregated schools.
But the problem of "negative intent" was not presented by Brown. See infra text accompanying
notes 390-94.
Paralleling the distinction between specific and general intent is Professor Dworkin's distinction between "concepts" and "conceptions." See R. DWORKIN, TAKING RIGHTS SERIOUSLY,
supra note 37, at 134-37. Within this terminology, the authors of the fourteenth amendment
intended to constitutionalize a requirement of equal legal treatment. This concept, however,
admits of many conceptions or interpretations. While the framers' own conception may have
been a narrow one - possibly permitting, for example, segregation in the schools - the concept
of equal treatment also may have more exacting conceptions. Dworkin argues that it is the
concept of equal treatment, not the narrow conception of the framers, that the fourteenth
amendment properly expresses.
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C. Arguments of Constitutional Theory

A third familiar kind of argument involves the purposes, described
in a general, functional, or theoretical sense, of the Constitution as a
whole or of its provisions individually. Arguments of this kind push
beyond what could plausibly be considered the plain meaning of
constitutional language. Instead, they claim to understand the Constitution as a whole, or a particular provision of it, by providing an
account of the values, purposes, or political theory in light of which
the Constitution or certain elements of its language and structure are
most intelligible. Arguments asserting that particular values or principles enjoy constitutional status because of their role in a theory of
this kind I shall refer to as arguments of constitutional theory.
This category is, admittedly, rather loosely defined. A few examples may help to clarify its contours. At one end of the theoretical
spectrum stand arguments based on comprehensive constitutional theories, such as that propounded by Dean John Hart Ely.42 According
to Ely's theory, the Constitution, read as a whole, creates a predominantly democratic and majoritarian structure of government; the
rights with which it is, and must be, most concerned are those relating
to failures of the democratic process. 43 From this democratic and
process-based account, Ely derives the principle that the courts generally should read open-ended provisions of the Constitution to invalidate legislative and executive action where - and, without clear
textual warrant, only where - a rights-protective interpretation is
necessary either to provide fair and equal access to the political process
or to correct for what he regards as process failures. 44 An argument
based on Ely's theory would be a clear example of an argument of
constitutional theory.
At the middle level of theoretical argumentation would be arguments about, for example, the reasonable implications of our federal
structure or many of the arguments that Professor Charles Black has
characterized as arguments from structure and relationship. 45 Such
arguments support constitutional conclusions on the basis of their fit
with, or even their entailment by, the necessary presuppositions of
the governmental structure that the Constitution creates. A famous
example of structural argument comes from Chief Justice Marshall's
opinion in McCulloch v. Maryland,4 6 forbidding state taxation of
federal entities on the ground that the power to tax is the power to
destroy. 4 7 With the state and national governments structured as they
See J. ELY, supra note 6. For a fuller discussion of Ely's theory, see pages 12 17-23 below.
43 See J. ELY, supra note 6, at 4-9, 73-104.
42
44 See id. at 102-03.

45 See C. BLACK, STRUCTURE AND
46 17 U.S. (4 Wheat.) 316 (i8i9).
47 See id. at 427.
RELATIONSHIP IN CONSTITUTIONAL LAW (I969).
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were under the Constitution, it would make no sense, Marshall reasoned, for the states to be able to frustrate constitutionally legitimate
federal policies. 48 Arguments of this kind can be viewed as ones of
constitutional theory because, although they do not rely on either the
precise linguistic meaning of particular constitutional provisions or on
the historically identifiable intent of the framers, they are text focused.
Finally, closer to the particularistic end of the theoretical spectrum
lie such assertions as the commonplace that it is the purpose of the
first amendment to protect a marketplace of ideas. 49 It would be
possible, of course, to cast this claim as an account of the framers'
general intent. But the argument that courts should protect the marketplace of ideas might also issue, entirely independently of any inquiry into the attitudes of the framers, from a view about the values,
assumptions, or political theory in light5 0of which the language of the
first amendment makes the most sense.
Arguments of this kind are closely analogous to, if not identical
with, what have sometimes been characterized as "clause-bound" interpretivist arguments.3 1 Clause-bound interpretivist arguments purport to "derive" a value from some relatively clear and secure foundation in a particular provision of the constitutional text; the
arguments are classified as interpretivist because the aspiration is to
draw "inferences" purely from textual sources. 5 2 But the terminology
of "derivation" and "inference" is misleading. At least after we have
left the domain of arguments from text, it is always necessary to
formulate a theory about a constitutional provision, or ascribe a purpose to it, before any "derivation" of particular conclusions can occur.
Moreover, because the text commonly is so spare, it frequently will
fail to determine any one theory but will, instead, be consistent with
several. Thus the first amendment appears to some to create a general
marketplace of ideas. But others ascribe to the free speech guarantee
48 Chief Justice Marshall also relied importantly on structural arguments in his even more
famous opinion in Marbury v. Madison, 5 U.S. (i Cranch) 137 (1803), in which he reasoned,
for example, that a written constitution would be meaningless in restraining legislative power,
as it was clearly intended to do, if the courts were incompetent to engage in judicial review.
See id. at 178.
49 See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969); Abrams v. United
States, 250 U.S. 616, 630 (i919) (Holmes, J., dissenting).
so It is for this reason that John Stuart Mill, who authored a celebrated essay on the values
and purposes served by preserving wide liberties of thought and discussion, is frequently
classified as a first amendment theorist. See, e.g., Wellington, On Freedom of Expression, 88
YALE L.J. 1105 (1979).
Although Mill's ON LIBERTY (D. Spitz ed. 1975) made no reference to
the first amendment or its framers, his arguments establish a framework of values and purposes
that can usefully be referred to in defining the "freedom of speech" that the first amendment
should be construed to protect.
51 See J. ELY, supra note 6, at 11-41.
52 See, e.g., Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J.
1, 3-7 (971).
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the purpose, for the most part, of protecting the value only of indi53
vidual - as opposed, for example, to corporate - self-expression.
Still others view the object as limited to preserving the freedom of
54
political speech essential to a democracy.
This disparity of views should not be surprising. A constitutional
theory must seek not only to explain constitutional guarantees and
prohibitions but also to do so in a normatively attractive way. And
where more than one theory plausibly accounts for the text having
been written as it was, an assessment along a normative dimension,
whether undertaken consciously or unconsciously, becomes inevitable
and desirable. The upshot is that the "derivation" of constitutional
values can seldom if ever be a value-neutral enterprise.5 5 That is
why what others sometimes call clause-bound interpretivist arguments
are more accurately classified as arguments of constitutional theory.
D. Arguments from Precedent
Constitutional disputes frequently abound with analysis of the
meanings of judicial precedents. 5 6 Indeed, constitutional arguments
sometimes address themselves almost entirely to the meanings of previously decided cases:5 7 read one way, precedent indicates one result
in dispute, whereas if read another, it leads to a different conclusion.
More commonly, however, prior judicial decisions form a patchwork
into which a current problem must be fitted through a combination
of analytical, analogical, and theoretical reasoning.5 8 The problem
then is one of developing a theoretical account of what the decided
cases stand for.
As Professor Shapiro has recently observed, our legal system supports "two coexisting doctrines of precedent: a narrow one for getting
s3 See Pacific Gas & Elec. Co. v. Public Util. Comm'n, io6 S. Ct. 903, 917 (1986) (Rehnquist,
J., dissenting); see also Baker, Commercial Speech: A Problem in the Theory of Freedom, 62
IOWA L. REv. 1, 4 (1976) (arguing that the first amendment protects only speech connected with
individual liberty and self-realization).
54See Bork, supra note 52, at 26-35.
55 I am, in short, deeply skeptical of claims that an interpretivist methodology makes it

possible to identify with precision "a value judgment the framers constitutionalized at some
point in
the past." M. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS IOii (x982) (explaining, although not endorsing, the aspirations of interpretivism).
56 For interesting and useful accounts of the role of precedent in constitutional adjudication,
see, for example, Michelman, Constancy to an Ideal Object, 56 N.Y.U. L. REV. 406 (I981);
Monaghan, supra note 30, at 387-91; Monaghan, Taking Supreme Court Opinions Seriously, 39
MD. L. REv. 1 (1979) [hereinafter Court Opinions].
57See Jones, supra note 18, at 28; see, e.g., Skipper v. South Carolina, io6 S. Ct. 1669,
1670-73 (1986) (interpreting two earlier decisions to elucidate the standard of admissibility of
mitigating evidence in a criminal case); Michigan v. Jackson, io6 S. Ct. 1404, 1407-1I (1986)
(discussing earlier cases on the admissibility of confessions in criminal cases).
58 See generally E. LEVI, AN INTRODUCTION TO LEGAL REASONING (1949).
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rid of troublesome decisions, and a broad one for taking advantage

of helpful decisions."5 9 In this context, the construction of theories of
decided cases will inevitably be influenced by the beliefs and values
of the individual constitutional interpreter. To cite a suggestive example, in Pennhurst State School & Hospital v. Halderman,60 Justice
Stevens, in his dissenting opinion, accused the majority of "repudiat[ing] at least 28 cases."'6 1 Answering for the majority, Justice
Powell asserted that nearly all of the cases that were relied on by the
dissenting Justices could be distinguished and that many of the decisions were "simply miscited." 62 Bad faith need not have obtained on
63
either side.
An adequate theory of the meaning of legal precedents, like any
legal theory that seeks to guide future conduct, must satisfy two
criteria. First, it should achieve descriptive accuracy by fitting the
data that the theory attempts to explain. Second, a theory of precedent should depict the data in the normatively most attractive light
that the implicit conventions of our constitutional practice will permit.
The criteria of fit and attractiveness are both theory dependent and
contestable. 64 With respect to fit, some judges and lawyers simply
will "see" or "read" the cases differently. Moreover, even if this problem could be passed over, different constitutional interpreters may
disagree as to what constitute permissible bases for distinction under
the loose doctrine of precedent and how much past decisions fairly
could be claimed to establish under a broader approach. This is not
to suggest that purposive theory construction cannot go too far. Sometimes "a precedent cannot be distinguished away under the narrowest
approach consistent with fair argument, and ... there are other times
when no controlling or even persuasive precedent can be found no
65
matter how broadly the existing decisional corpus is viewed."
59 Shapiro, In Defense of Judicial Candor, ioo HARV. L. REv. 731, 734 (987). Shapiro
attributes this view, which he describes as being "close" to his own, to K. LLEWELLYN, THE
BRAMBLE BUSH 74-75 (1951).
60 465 U.S. 89 (1984).
61 Id. at 165 (Stevens, J., dissenting). Joining Justice Stevens' opinion were Justices Brennan,
Marshall, and Blackmun.
62 Id. at o9.
63 For an insightful assessment of the competing arguments, in Pennhurst, see Shapiro, The
Supreme Court: 1984 Term - Comment: Wrong Turns: The Eleventh Amendment and the
Pennhurst Case, 98 HARv. L. REV. 6x (1984).
64 Modern philosophy of science holds that none of our beliefs about the world is independent
of theory. See, e.g., H. PUTNAM, REASON, TRUTH AND HISTORY 135 (198); IV. QUINE, Two
Dogmas of Empiricism, in FROM A LOGICAL POINT OF VIEW 20-46 (2d ed. 198o). The
implication is that the data to be explained along the dimension of "fit" are not independent of
theory, because theory is needed to establish what will count as data and what will not.
65 Shapiro, supra note 59, at 734. Thus, in Pennhurst, either Justice Powell or Justice
Stevens may have been mistaken in his judgment about what readings the narrower and broader
doctrines of precedent would permit.
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Nevertheless, a significant latitude exists for good faith argument and

for normative choice based on moral and political attractiveness. And
the moral and political attractiveness of a reading of the precedents
depends relatively straightforwardly on the political values and as66
sumptions of the interpreter.
E. Value Arguments
Sometimes openly, sometimes guardedly, judges and lawyers make
arguments that appeal directly to moral, political, or social values or
policies. 67 Every now and then, of course, courts assert that value
choices are never for them to make but are solely the domain of the
political branches. 68 However, protestations of this kind are simply
not credible. Indeed, at least occasionally they signal that the court
is about to implement a value choice so controversial that denial is
easier than explanation. 6 9 Value arguments are even more prominent;
indeed, they enjoy almost total predominance, in much of the most
respected modern constitutional scholarship.70
66 A subsidiary issue within the category of arguments from precedent concerns the question
of when a case or line of cases should be overruled. The principle is clear that stare decisis is
generally entitled to less weight in constitutional than in nonconstitutional cases, see, e.g.,
United States v. Scott, 437 U.S. 82, io (1978) (citing Burnet v. Coronado Oil & Gas Co., 285
U.S. 393, 406-08 (2932) (Brandeis, J., dissenting)), and that in the former sitution the Supreme
Court stands ready to "correct its errors even though of long standing," United States v. Barnett,
376 U.S. 681, 699 (1964).
67 In some cases, such arguments provide a basis for accepting claims of constitutional rights.
See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion) (holding
a housing ordinance restricting rights of extended families to live together invalid because "the
institution of the family is deeply rooted in this Nation's history and tradition" and therefore is
protected by the due process clause); Rochin v. California, 342 U.S. I65, 169-74 (1952) (concluding that extracting evidence from a defendant's stomach "shocks the conscience" and thus
constitutes an unreasonable search forbidden by the due process clause). In other cases, these
arguments provide a basis for denying claims of right. See, e.g., Bethel School Dist. No. 403
v. Fraser, zo6 S. Ct. 3159, 3164 (1986) (reasoning that schools may punish the use of obscenity
by students because it is the school's duty to enforce "fundamental values," including the "habits
and manners" of civility essential to a democratic society); Paris Adult Theater I v. Slaton, 413
U.S. 49, 57-70 (1973) (concluding that obscenity is of "slight social value" and upholding against
asserted first amendment claims the right of communities to preserve a decent society).
68 See, e.g., Harris v. McCrae, 448 U.S. 297, 326 (I98O); Ferguson v. Skrupa, 372 U.S.
726, 730-32 (1963); Williamson v. Lee Optical, Inc., 348 U.S. 483, 488 (i955); Olsen v. Nebraska
ex rel. Western Reference & Bond Ass'n, Inc., 313 U.S. 236, 246-47 (1941).
69 See, e.g., Roe v. Wade, 410 U.S. 113, x16 (I973) (asserting that the Court's task in
determining whether restrictions on abortion offend the Constitution "is to resolve the issue by
constitutional measurement, free of emotion and of predilection").
70 For a survey, see Wiseman, The New Supreme Court Commentators: The Principled, the
Political, and the Philosophical, io HASTINGS CONST. L.Q. 315 (1983).
For criticisms of this
value-laden approach, see Monaghan, cited in note 3o above, at 375-87, and Van Alstyne,
Interpreting This Constitution: The Unhelpful Contributions of Special Theories of Judicial
Review, 35 U. FLA. L. REV. 209 (1983).
19871
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Although various other definitions would be possible, I shall use

the term "value argument" to refer only to claims about the moral or
political significance of facts or about the normative desirability of
outcomes. Defined in this way, value arguments assert claims about
what is good or bad, desirable or undesirable, as measured against
some standard that is independent of what the constitutional text
requires. Value arguments do not claim that the particular value
judgments they assert are necessarily ones that the framers intended
to constitutionalize, or that they express the best constitutional theory.
Rather, value arguments advance conclusions about what is morally
or politically correct, desirable, or expedient as measured against some
standard. 71
To make these claims somewhat more concrete, it may help to

posit a provisional distinction between two kinds of cases in which
value arguments have a conventionally accepted role. One involves
constitutional language whose meaning has a normative or evaluative
component. Examples include the due process clauses, 72 the equal
protection clause, 73 the fourth amendment's prohibition of "unreasonable" searches and seizures, 74 and the eighth amendment's guarantee
against "cruel and unusual punishments.175 These phrases constitutionalize particular concepts or values. But those values or concepts
are, in the idiom of ordinary language philosophy, "essentially contestable. ' 76 Although the evaluative judgments that the concepts are
used to express are wholly intelligible even to those who disagree with
them, consensus breaks down over the proper criteria for determining
when such labels as "procedurally fair" or "unfair," "equal" or "unequal," "reasonable" or "unreasonable," and "cruel and unusual" are
apt. Different people apply the terms differently, not because some
misuse the language, but because the full meaning of each term depends upon a background network of philosophical values and assumptions that is itself disputable. 77 To decide when an essentially
71 This definition of "value arguments" sweeps in arguments that assert the moral rights of
groups or of individuals and those that appeal instead to goals or policies of the society that do
not give rise to rights. Cf. R. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 37, at 82
(distinguishing "arguments of policy," which "justify a political decision by showing that [it]
advances or protects some collective goal of the community as a whole," from "arguments of
principle," which "justify a political decision by showing that the decision respects or secures
some individual or group right"). Although I shall generally use the term "policy arguments" to
refer to the former and "moral arguments" to refer to the latter, my purposes in this Article
require no sharp distinction between the two.
72 U.S. CONST. amend. V.; id. amend. XIV.
73Id. amend. XIV, I.
74 Id. amend. IV.
75Id. amend. VIII.
76 See Gallie, Essentially Contested Concepts, 56 PROC. OF THE ARISTOTELIAN SOC'Y 167
(1956); MacIntyre, The Essential Contestability of Some Social Concepts, 84 ETHICS I (1973).
77To avoid reliance on the moral and political judgment of judges, one conceivable position
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contestable concept "properly" applies therefore requires the conscious

or unconscious undertaking of moral and political commitments.
As a result, in a variety of areas, the Supreme Court not only
engages in but also prescribes an analytical process that addresses
itself to the force of competing value arguments. The jurisprudence
of "cruel and unusual punishment" reveals a clear strand of moral
and political argumentation: the Court has held that the eighth amendment must be construed in light of the "'evolving standards of decency
that mark the progress of a maturing society.' ' 78 An analogous structure of argument and reasoning prevails in judicial efforts to determine
when, under the fourth amendment, searches and seizures should be
held "unreasonable." To reach a judgment as to reasonableness, courts
first must determine whether the person claiming the right had a
justifiable expectation of privacy in light of what society would be
prepared to recognize as "reasonable" and then balance the individual
79
interest against the interest of the state in effective law enforcement.
Similarly, in order to determine whether procedures are adequate
under the due process clause, the Supreme Court has developed a
calculus in which judicial decisionmakers must identify the point at
which "the benefit of an additional safeguard to the individual affected
... and to society in terms of increased assurance that the action is
just [is] outweighed by the cost." 80 This process plainly depends on
an assessment of value arguments concerning the significance of both
81
the individual and social interests that are implicated.
would be that judges, in construing these provisions, should never give weight to value arguments about what is, for example, fair or unfair, reasonable or unreasonable; instead, they
should base their decisions in every case either on the framers' views or on the value scheme
that generally obtained at the time of the provision's enactment. See Monaghan, supra note 30,
at 367 ("No relevant evidence on the ninth amendment and very little with respect to the
privileges and immunities clause supports an inference that either was intended to have a
dynamic character."). But that view has not prevailed.
78 Ford v. Wainwright, io6 S. Ct. 2595, 2600 (1986) (quoting Trop v. Dulles, 356 U.S. 86,
ioi (1958) (plurality opinion)).
79 See Hudson v. Palmer, 468 U.S. 5,7, 525-28 (1984); see also New Jersey v. T.L.O., 469
U.S. 325, 337 (i985) (stating that courts must identify "the individual's legitimate expectations
of privacy and personal security" and weigh them against "the government's need for effective
methods to deal with breaches of public order").
80 Mathews v. Eldridge, 424 U.S. 319, 348 (1976).
81 For an insightful critique of the Court's approach to assessment of the values actually at
stake in procedural due process cases, see Mashaw, The Supreme Court's Due Process Calculus
for Administrative Adjudication in Mathews v. Eldridge, 44 U. CHI. L. REv. 28 (1976).
A more controversial example of judicial reliance on value arguments emerges from "substantive due process" cases. Substantive due process doctrine assumes that the due process
clause protects at least some substantive values deemed to be "fundamental." See, e.g., Roe v.
Wade, 410 U.S. 113, 152-55 (i973); Poe v. Ullman, 367 U.S. 497, 541 (196i) (Harlan, J.,
dissenting). But substantive due process methodology also postulates that the protected values
must not only be given content, but actually identified, by appeal to some authority outside of
the explicit constitutional text. In Moore v. City of East Cleveland, 431 U.S. 494 (i977), for
1987]
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In a second kind of case, the invocation of value arguments appears to reflect the slightly different assumption that, where arguments
within other categories are indeterminate or closely balanced, it is
either necessary or at least reasonable to take account of considerations
that value arguments address. The claim here, though difficult to
document, resonates with both experience and common sense. A clear
example, already discussed at some length, lies within the category of
arguments from precedent. The implicit norms of our constitutional
practice frequently permit both broad and narrow readings of past
judicial decisions. 82 Which approach ought to be preferred in any
particular case, and how a string of decisions ought to be ordered into
a pattern or subsumed under a theory, often will and should be
resolved on normative grounds. Similar results occur within other
categories of argument, such as arguments of constitutional theory.
Confronted with contending theoretical arguments that are equally or
nearly equally plausible, judges prefer those that accord with their
83
views of justice or sound policy.
Although I have provisionally distinguished between two kinds of
value arguments - those needed to give meaning to constitutional
provisions that expressly require value judgments and those invoked
in making choices where other kinds of arguments are closely balanced
or indeterminate - this distinction is not one that I shall try to
maintain. There are too many unclear cases. Within the Bill of
Rights, for example, the protection of "the freedom of speech"8 4 arexample, the plurality reasoned that the due process clause protects certain family relationships
because "the institution of the family is deeply rooted in this Nation's history and tradition."
Id. at 503. This argument presupposes that the Constitution authorizes the protection of
nonenumerated rights. It does not claim, however, that the constitutional text expressly, or
even within the terms of a constructivist theoretical interpretation, marks family relationships
as deserving of protection or indicates how much protection they ought to get. Rather, the
argument assumes that protection is warranted because history and tradition provide family
relationships with the pedigree necessary for them to deserve weight in constitutional argument.
Cf. Poe, 367 U.S. at 542 (Harlan, J., dissenting) (arguing that in giving content to the due
process clause, the Court cannot rely on any "formula" or "code" but must refer to "the traditions
from which [the country] developed as well as the traditions from which it broke").
82 See supra text accompanying note 59.
83 Value arguments of this type are frequent in first amendment jurisprudence. See Wellington, Common Law Rules and ConstitutionalDouble Standards, 83 YALE L.J. 221, 267-70
0973). For instance, in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council,
Inc., 425 U.S. 748, 763 (976), the leading case establishing that the first amendment protects
commercial advertising, the Supreme Court argued that the "interest in the free flow of commercial information" was frequently more important to consumers than their interest in "the
day's most urgent political debate" and that courts could properly take this consumer interest
into account. Although this argument could be characterized as one of constitutional theory, it
appears to have played a different role in Justice Blackmun's opinion. With plausible arguments
of constitutional theory available on both sides, the Court appealed to the value of consumer
satisfaction - one that is not clearly established as a "constitutional value" by provisions of the
constitutional text - to determine how the balance should be struck.
64 U.S. CONST. amend. I.
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guably constitutionalizes a value judgment that is as essentially contestable as the prohibitions of "cruel and unusual" punishments and
"unreasonable" searches and seizures. To determine whether the utterances of a high school student are constitutionally protected, the
Supreme Court has asserted, "[t]he undoubted freedom to advocate
unpopular and controversial views in schools and classrooms must be
balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behaviour."8 5 Is it accurate in this case to say that the concept of "freedom of speech"
requires the interpreter to resort to sources of value outside the constitutional text to determine how the constitutional guarantee ought
to be construed? Or should we say instead that a constitutional
interpreter may be guided by considerations of value in resolving a
case in which other factors - such as arguments from text, the intent
of the framers, constitutional theory, and precedent - are nearly in
equipoise or at least would be viewed differently by people whose
values are different? All that seems clear is that value arguments will
somehow enter the judicial calculus.
Within the category of arguments of value, a final distinction will
prove helpful. It involves the sources of values to which a judge
might appeal. One kind of value argument refers to some repository
of values, outside of herself, that a judge or lawyer believes to be a
legitimate source of authority in constitutional interpretation. 8 6 That
source might be traditional morality,8 7 consensus values, 88 natural
law,8 9 economic efficiency, 90 or the original position liberal methodology of John Rawls. 91 Another imaginable kind of value argument
85 Bethel School Dist. No. 403 v. Fraser, io6 S. Ct. 3159, 3164 (1986).
86 See generally Bennett, Objectivity in ConstitutionalLaw, 132 U. PA. L. RaV. 445, 447
(1984) (defining objectivity in constitutional law in terms of "sources for decision external to the
decider's own .. .standards or values" even if those external sources are not authoritative in
the sense of determining one right answer to a constitutional question).
87 See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)
("[T]he Constitution protects the sanctity of the family precisely because the institution of the
family is deeply rooted in this Nation's history and tradition."); Poe v. Ullman, 367 U.S. 497,
542 (i96i) (Harlan, J., dissenting) ("The balance of which I speak is the balance struck by this
country, having regard to what history teaches are the traditions from which it developed as
well as the traditions from which it broke."); Wolf v. Colorado, 338 U.S. 25, 28-30 (i949)
(examiming traditions of the "English speaking world" to determine views on the exclusionary
rule).
8sSee Wellington, supra note 83, at 284.
89 See Dworkin, "Natural" Law Revisited, 34 U. FLA. L. REv. I65 (1982); Moore, supra
note I5.
90 See generally R. POSNER, ECONOMIC ANALYSIS OF LAWv (3d ed. 1986).
91 J. RAWLS, A THEORY OF JUSTICE (1971); see Michelman, In Pursuit of Constitutional
Welfare Rights: One View of Rawls' Theory of Justice, 121 U. PA. L. REv. 962 (1973); Richards,
Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. PA.
L. REV. 45, 59-70 (i974).
1987]
1209
would be one in which a judge or theorist simply asserts her own

values and claims their entitlement to constitutional weight. This
second sort of argument may never be made explicitly, but critics
frequently claim to find it only barely concealed in invocations of such
sources of authority as traditional morality and natural law. 92
H-. THE
INADEQUACY OF TRADITIONAL THEORIES
The problem of commensuration or cumulation of the various

factors in constitutional argument has seldom been explicitly formulated. Nevertheless, possible solutions can be extrapolated from several of the better-known constitutional theories. Two types of theories
predominate. Privileged factor theories give determinative significance
to arguments within one or two of the categories and virtually ignore
other kinds of argument. Open-system theories hold that it is impossible to give rule-like specifications of how different kinds of argument
should be assessed and thus maintain that answers to the problem
must vary with the situation.
At least one intuitively plausible alternative also merits discussion.
Balancing theories would weigh arguments within each of the categories proportionately to the arguments' independent power or determinacy. Although each of these kinds of theories possesses initial
plausibility, all of them ultimately have disabling defects.
A. Privileged FactorTheories
One approach to what I have termed the commensurability problem is to privilege one or two types of constitutional argument. When
a privileged factor indicates a result, its conclusion controls the constitutional issue. Other kinds of argument come into play, if at all,
only in cases where arguments within the privileged categories are
indeterminate or yield a tie. Perhaps the best known privileged factor
theory is "interpretivism." But Ely's theory also falls within this
rubric.
i. Interpretivism. - A prominent school of constitutional theorists
asserts that a court should hold government action unconstitutional
only on the basis of one or both of two privileged factors: arguments
from text and the intent of the framers. 93 Interpretivism, as this
92 See, e.g., Rochin v. California, 342 U.S. 165, 175-77 (1952) (Black, J., concurring);
Adamson v. California, 332 U.S. 46, 69-75, 90-92 (1947) (Black, J., dissenting); J. ELY, supra
note 6, at 44, 5o, 67.
93 For slightly varied statements of what "interpretivism" is, see J. ELY, cited in note 6
above, at i, and M. PERRY, cited in note 55 above, at lo-Ii. However it is defined, interpretivism is more an ideal type than a descriptive label. Examples of important work approximating
the ideal type are R. BERGER, cited in note 39 above; Bork, cited in note 52 above; and
Monaghan, cited in note 30 above.
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school is called, attempts to exclude value arguments insofar as possible from the constitutional calculus. The logic of the interpretivist
position calls for reducing arguments from precedent to prior interpretations of text and the framers' intent. 94 Interpretivism also rejects
arguments of constitutional theory that depart from the intent of the
95
framers.
Interpretivism's intellectual attractiveness derives from two closely

related sources. The first is the assumption that the Constitution
creates a predominantly democratic and majoritarian structure of government. 96 With democracy representing the norm, interpretivists
argue that society has consented to be bound by decisions of the
Supreme Court, which is nondemocratic, only "within defined areas
by certain enduring principles believed to be stated in, and placed
beyond the reach of majorities by, the Constitution." 97
The related attraction of interpretivism stems from the notion that
courts as well as legislatures should be subject to the rule of law. 98
Sometimes constitutional norms and standards will be discoverable
from the language of the text; other times, however, the textual language will be ambiguous or vague. In the latter situation, interpretivists require that a judge assess the permissibility of legislative action
from within rather than above the Constitution, by adhering to the
intentions, to the extent that they can be identified, of those who
wrote the operative words. 99
94 See R. BERGER, supra note 39, at 297-98. But see infra note 120 (discussing the interpretivist suggestion that stare decisis must sometimes prevail against arguments from text and
the framers' intent).
95 See Bork, Styles in Constitutional Theory, 26 S. TEx. L.J. 383, 390 (1985) (criticizing
Ely's theory for portraying the Constitution as more democratic than it really is).
96 The two classic modern statements of this view, neither the work of a strict interpretivist,
are A. BICKEL, THE LEAST DANGEROUS BRANCH (1962), and J. ELY, cited in note 6 above.
The Constitution is, of course, not wholly majoritarian. See, e.g., L. TRIBE, CONSTITUTIONAL
CHOICES I I (1984); Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J.
1013, 1013-16 (1984); see also U.S. CONST. art. I, io (contracts clause); id. art. VI (supremacy
clause). Nonetheless, it is a powerful interpretivist argument that the countermajoritarian
elements of the Constitution define an exception, which must be carefully cabined so as not to
displace the rule.
97 Bork, supra note 52, at 3; accord Adamson v. California, 332 U.S. 46, 89 (i947) (Black,
J., dissenting) ("I fear to see the consequences of the Court's practice of substituting its own
concepts of decency and fundamental justice for the language of the Bill of Rights."); id. at 6975, 89-92.
9s This theory of the Constitution's role and status traces to the foundational decision of
judicial review, Marbury v. Madison, 5 U.S. (I Cranch) 137 (1803). See Brest, supra note i8;
Grey, supra note 18, at 705.
99 As will become clear later, this is not an argument that I accept, although I believe that
it must be taken seriously and that its attractiveness helps to explain the power of interpretivism.
The argument's crucial gap involves the implicit assumption that judicial conformity to the
Constitution necessarily requires that judicial decisions be "determined" in every case by some-
1987]
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Without further refinement, however, interpretivism is ambiguous

on two crucial questions. The first involves the permissible scope of
arguments from text: is textual meaning confined to the original understanding or can the Constitution's meaning change over time?' 0 0
A similar ambiguity attends the interpretivist claim that the intent of
the framers should control constitutional issues: is the intent of the
framers limited to their specific intent, or may it sometimes encompass
general or abstract intent as well?' 1
These ambiguities define a divide within the interpretivist camp.
On one side stand "originalists." Originalists take the rigid view that
only the original understanding of the language and the framers'
specific intent ought to count. 102 On the other side, "moderate interpretivists" allow contemporary understandings and the framers' general or abstract intent to enter the constitutional calculus. 103
Originalism purports to be the purer and more rigorous alternative.10 4 But its purity proves its undoing, because originalism cannot
satisfy the standards that it sets for itself. The problem is that arguments from text and the framers' intent cannot be kept independent
of other kinds of factors that originalists, with their conception of
what the rule of law requires, insist on excluding. Originalists concede
that arguments based on the original understanding frequently will
prove indeterminate unless appeal also is made to the intent of the
framers; to know what words meant at periods remote in time, we
commonly must refer to the intent of the drafters and ratifiers.10 5 Yet
if originalism relies on the psychological intent of the framers, it
thing other than the reasoned, and publicly explained and defended, value judgments of the
interpreting judges. For an insightful discussion of this and related issues, see Michelman,
Justification (and Justifiability) of Law in a ContradictoryWorld, in 28 NOMOS: JUSTIFICATION
71 (J. Pennock & J. Chapman eds. 1986). For a fuller discussion of the fallacies of interpretivism's implicit theory of the rule of law, see note 13x below.
100 See supra text accompanying notes 29-31.
101 See supra text accompanying notes 37-41. It is a minor irony of theories emphasizing
the intent of the framers that the framers themselves apparently thought that their "psychological
intent" - as distinct from the natural import of their words - was a concept of little if any
validity in constitutional adjudication. See Powell, The Original Understanding of Original
Intent, 98 HARV. L. REv. 885, 887-88, 902-13 (1985). To the extent that intent was useful at
all, many of the framers argued that the relevant intent would be not their own but that of the
ratifiers. See id. at 888, 9o6-07.
102 This is the view of Professor Berger. See R. BERGER, supra note 39, at 283-418.
It
also appears to be one to which Professor Monaghan is attracted, see Monaghan, supra note
30, at 374-81, though less clearly committed, see id. at 382.
103 See Brest, supra note 18, at 223-24, 231-34.
104 See Monaghan, supra note 30, at 378 (arguing that conceptualizing original intent at high
levels of abstraction, as moderate interpretivists do, "sterilize[s] the concept ... [and,] in effect,
removes it as an interpretational constraint").
105 See R. BERGER, supra note 39, at 363-72.
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encounters a daunting array of historiographical, conceptual, and interpretive problems. 10 6 If, for example, the framers are taken individually, a problem exists in defining what, among a person's mental
attitudes, ought to count as an intention. 10 7 Moreover, the originalist
confronts a perplexity that borders on paradox if it turns out that
many of the framers had a certain kind of "interpretive intent": if they
intended that a constitutional provision be adapted judicially to accommodate evolving needs rather than applied only to an historically
defined set of situations.10 8
Once intentions are identified at the individual level, originalists
confront the equally formidable challenge of combining them into a
plausible concept of group intent. Different concerns may have motivated different drafters or supporters even of a single constitutional
provision. For any single person or group, the animating principle
may be stated more or less broadly. Probably as a result, no widely
recognized legal convention establishes precisely how the required
summing of individual intentions ought to occur.10 9
Although it is possible to develop an intelligible conception of
group intent, the best available theory fails to satisfy the aspirations
of originalism. Far from being a simple fact awaiting discovery by
the industrious researcher, the framers' intent must be viewed as an
intellectual construct, developed through a process of interpretation,
that seeks to embody the principles that furnish the best political
justification for a constitutional provision and that find substantial
support in the political climate surrounding the provision's framing
106 See, e.g., R. DWORKIN, A MATTER OF PRINCIPLE, supra note 26, at 38-57; Brest, supra
note i8, at 221-23.
107 A person voting to accept a constitutional provision or amendment may have given little
thought to its meaning. Others may have had "hopes" about how the provision would be
interpreted that differed from their interpretive "expectations." See R. DWORKIN, A MATTER
OF PRINCIPLE, supra note 26, at 44-45; Moore, The Semantics of Judging, 54 S. CAL. L. REV.
151, 265-70 (i98I).
108 See Brest, supra note 18, at 212, 215-16; R. DWORKIN, A MATTER OF PRINCIPLE, supra
note 26, at 51-55. Professor Dworkin has argued that the framers had this interpretive intent
when they chose the broad, open-ended language characteristic of, for example, many of the
guarantees of the Bill of Rights and of the fourteenth amendment. See R. DWORKIN, TAKING
RIGHTS SERIOUSLY, supra note 37, at 132-37; see also Bickel, supra note 39, at 58-65 (advancing
the "hypothesis" that the framers of the fourteenth amendment chose broad language in order
to permit a process of interpretive growth that they did not specifically mandate). Likewise,
the Supreme Court has sometimes assumed that the framers intended to license judicial adaptation. See Weems v. United States, 217 U.S. 349, 372-73 (9qo) (holding that the cruel and
unusual punishment clause of the eighth amendment is not restricted in application to practices
current at the time of adoption); see also Harper v. Virginia Bd. of Elections, 383 U.S. 663,
669 (1966) ("[T]he Equal Protection Clause is not shackled to the political theory of a particular
era."); Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 442-44 (1934) ("It is no an-
swer ... to insist that what the provision of the Constitution meant to the vision of that day
it must mean to the vision of our time.").
109 See R. DWORKIN, A MATTER OF PRINCIPLE, supra note 26, at 38-57.
1987]
1213
and adoption. 1 10 With the notion so conceived, particular interpretations of the framers' group intent are dependent upon and constrained by historical materials. But they also embody implicit or
explicit normative judgments. Frequently the historical evidence will
fit at least tolerably well with more than one account of the framers'
In this situation, choice among the historianimating intentions.'
cally plausible competitors - in a context in which the purpose of
the inquiry is to guide a judicial decision - is appropriately if not
necessarily made on normative grounds.
This conception of the framers' group intent, of which I myself
shall make use later in this essay, does not imply that the task of
interpretation cannot be judged as being executed well or poorly,
successfully or unsuccessfully. But any conception of the framers'
intent is nevertheless theory dependent and contestable in a way that
undermines the originalist's project of "simply" enforcing judgments
constitutionalized by the framers. In permitting a political evaluation
of contending understandings that find more or less equal support in
the evidence, an "interpretive" conception of the framers' intent affords
arguments of value too much weight to satisfy a consistent originalist.
Nor are originalism's deficiencies limited to its inability to meet its
own standards. Assessed as a descriptive theory of contemporary
constitutional interpretation, originalism fails spectacularly. Originalism cannot account for much of our constitutional practice of at least
the last 50 years. 1 12 Most of our free speech jurisprudence could
probably not be justified within an originalist methodology.11 3 Modern equal protection doctrine, including the landmark decision in
Brown v. Board of Education," 4 affords a series of telling counterexamples to originalism's descriptive claims. So does fourth amendment law. 1 15 Finally, originalism cannot adequately explain the familiar and important role of precedent in constitutional argument.
Strict originalism does not fare much better when appraised as a
normative theory. The Constitution was written to endure through
110 See id. at 326-29. Although Dworkin was concerned with legislative intent as a concept
in statutory interpretation, his idea is easily adapted to the constitutional context. Dworkin,
however, has argued recently that the intent of the framers is not a useful concept in constitutional interpretation. See R. DWORKIN, supra note ii, at 359-69. For other views similar to
those expressed in the text about how the concept of intent is most intelligibly and appropriately
understood, see Moore, cited in note 15 above, at 349, and White, cited in note 26 above, at
438-41.
I See, e.g., infra text accompanying notes 331-35 (discussing the intent of the framers of
the fourteenth amendment on the issue of affirmative action).

112See M. PERRY, supra note 55, at 1-2, 61-69; Brest, supra note i8, at 2o5; Grey, supra
note I8, at 710-14.
113 See M. PERRY, supra note 55, at 1-2, 64; Grey, supra note 18, at 713.
114 347 U.S. 483 (i954).
1- See, e.g., Steagald v. United States, 451 U.S.
204,
217 & n.Io (I98i); Payton v. New
York, 445 U.S. 573, 591 n.33 (198o); Katz v. United States, 389 U.S. 347, 352-53 (1967).
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different historical ages," 6 and part of the task of constitutional interpretation is to produce a body of law adequate to the present day. 117
The familiar metaphor of a "living Constitution"' 18 suggests that our
legal culture assumes a close connection between legal interpretation
in general, and constitutional interpretation in particular, and an
evolving ideal of justice." 9 In other words, it is, within our tradition,
an important aim of constitutional adjudication to achieve a body of
law that is responsive to perceived modern needs and accepted by the
population as tolerably just. The questions of when, how, and to
what extent the rule-of-law ideals associated with a written constitution should accommodate needs for adaptation and change are notoriously difficult. Yet on a spectrum running from theories that would
allow no adaptation at all to those that would reduce constitutional
law to an unmediated clash of value arguments, originalism occupies
the first untenable extreme. It is a normative deficiency of originalism
that its premises deny any scope whatsoever for accommodation. 12 0
116 See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819) (noting that the Con-
stitution was "intended to endure for ages to come, and, consequently, to be adapted to the
various crises of human affairs").
117 Against a functional critique of this kind, an interpretivist might argue that although
constitutional law has a function, its capacity to fulfill that function depends not on its malleability to accommodate perceived needs but instead on a set of "rule-of-law" virtues associated
with constancy, predictability, and democratic lawmaking. See R. BERGER, supra note 39, at
283-99. But this argument, if offered as a defense of originalism against a charge of functional
misguidedness, has three flaws. First, as I have argued at length, originalism itself is functionally
unworkable; it cannot satisfy the standards that it erects. See supra pp. 1211-13. Comparative
functional assessments are therefore deeply embarrassing to the originalist. Second, the rule-oflaw argument assumes greater determinacy than in fact exists in our constitutional jurisprudence.
Purposive interpretation has no viable formalist alternative. Third, the functional critique of
originalism stated in the text is not purely instrumentalist in its assumptions. An interpretive
approach that treats it as an aim of constitutional interpretation to achieve a functionally
workable and morally just body of law by no means necessarily implies that this is the sole end
of constitutional interpretation or that "rule of law virtues" must be discarded entirely. See
Moore, supra note I5, at 313 (describing "rule-of-law virtues" as "those values that mandate
that judges should not dispense justice in some ad hoc, case-by-case basis"). Text, history, and
precedent both do and ought to impose limitations on how far constitutional provisions drafted
in one era may be ascribed new meanings in another.
I's See, e.g., H. McBAIN, THE LIVING CONSTITUTION (1927); Reich, Tie Living Constitution and the Court's Role, in HUGO BLACK AND THE SUPREME COURT 133 (S. Strickland ed.
1967).
119 See Dworkin, supra note 89; Grey, supra note 18, at 715-17.
120 Sensitive to this difficulty, some originalists have hinted at the possibility of isolated
relaxations. In particular, both Raoul Berger and Professor Henry Monaghan have conceded
that, with nonoriginalist doctrines so thoroughly ensconced in our constitutional law, it would
be unthinkable to overturn them all. See R. BERGER, supra note 39, at 413; Monaghan, supra
note 30, at 382. Professor Monaghan has therefore suggested that it would be possible to reach
an accommodation of sorts by allowing arguments from precedent to prevail "where settled
expectations of the body politic have clustered around" decided cases. Monaghan, Court Opinions, supra note 56, at 7; accord Monaghan, supra note 30, at 382. The problem with this
approach is that it attempts to purchase descriptive plausibility at a price that includes consid-
1987]
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Because it accounts more accurately for our most recent halfcentury of constitutional law, moderate interpretivism might appear
a more attractive alternative than originalism. But moderate interpretivism also fails to provide a viable theory. 12 1 Moderate interpretivism recognizes the legitimacy of arguments of original as well as
122
contemporary meaning and of specific as well as general intent.
But this recognition raises the problem of how to decide which meaning or which type of intent should govern in any particular situation.
Within the category of the framers' intent, for example, arguments
concerning specific intent and those involving general intent embody
different conceptions of what arguments within the category ought to
be about. If arguments of specific intent are more appropriate, then
the best argument of specific intent should always prevail; there is no
basis, internal to the category, on which to say that arguments of
general intent should ever be accepted instead. If, on the other hand,
the category more properly refers to the framers' general intent, then
arguments of general intent ought to win out in every case.
Because there is no common denominator to which arguments of
general and specific intent can be reduced, it is impossible, once the
permissibility of both kinds of argument is accepted, to resolve the
competition between the different conceptions by reference to some
standard internal to the category of arguments of intent. Some outside
arbiter - a standard of value or principle of selection external to the
category - must determine the choice. Yet if reference to outside
considerations must take place, then moderate interpretivism fails in
its ambition for itself, which is to reduce constitutional interpretation
to the dictates of one or two preferred factors that require no appeal
12 3
to other sources of value.
erable sacrifice of intellectual coherence. Monaghan's proposal to cede this much force to stare
decisis accords badly with the background originalist premises that he also purports to champion.
How, in this context, would an originalist deal with earlier decisions that she regards as
illegitimate in their foundation? The distinction between application and extension may have
initial appeal. But, at least at its borders, the distinction is a blurry one; it is a familiar common
law pattern to see lines of cases exhibit patterns of evolution and extension that would have
been wholly unpredictable at the decision of the first case or even at its first, second, or third
application.
121See Brest, supra note iS, at 231-34.
122See id. at 222-24, 231-34.
123This characterization of the ambition of moderate interpretivism is not the only one
possible. There are at least two alternatives, both exhibited by the work of Robert Bork. In
an important article written in 1971, Bork argued that constitutional principles, in order to be
legitimate, must be "neutral" not only in their substance but also in their derivation. See Bork,
supra note 52, at 7. The implication was that value arguments, as I have defined them, should
be excluded from the constitutional calculus. See id. at 7-8. In subsequent writing, however,
Bork has sometimes retreated from this position. For example, in a recent speech Bork argued
that moderate interpretivism recognizes the need for judges to appeal to arguments of value in
giving content to vague constitutional principles such as those embodied in the first amendment's
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Nor can the problem be avoided if the moderate interpretivist

takes the position that contemporary meanings and the framers' abstract intent always provide the preferred reference. Many of the
most important constitutional guarantees involve essentially contestable concepts.1 24 As a result, the identification of contemporary meanings frequently requires reliance on extraconstitutional repositories of
value. Similarly, abstract intent can be stated at many levels of
abstraction. Preference for abstract intent therefore only postpones
the question of how the appropriate degree of abstraction will be
identified. Again, courts must resort to some factor outside the category of the framers' intent. Brown v. Board of Education125 illustrates
this problem. The best historical evidence suggests that while a majority of the framers of the fourteenth amendment were aware- of
racial segregation in the public schools and had no specific intent to
prohibit it,126 they nevertheless had a general intention that persons
not be deprived of fundamental rights on account of race. 127 If the
framers' intent is stated even more abstractly, their choice of language
reveals a still more general intention to constitutionalize the principle
free speech clause. See R. Bork, supra note 37, at 46. Moderate interpretivism, he asserted,
only forbids constitutional decisionmaking that does not proceed by inference from a principle
that is itself traceable to the constitutional text. See id. at 46. But it is difficult to know
precisely what this stricture is intended to mean. Almost certainly Bork had in mind Roe v.
Wade, 410 U.S. 113 (1973), and other "substantive due process" decisions as objects of attack.
But if moderate interpretivism is defined solely by its opposition to judicial decisionmaking that
lacks a "'starting point .. . [that] is fairly discoverable in the Constitution,"' Bork, supra note
37, at 46 (quoting J. ELY, supra note 6, at 2), it is neither a sharply defined nor an especially
contentious or interesting constitutional theory. No serious theorist, so far as I am aware,
suggests that laws can be judicially invalidated other than on the basis of some 'constitutional
provision or provisions. Moreover, aside from the "substantive" aspect of the due process clause,
it is hard to think of constitutional provisions whose language does not provide a starting point
for the elaboration, rather than the invention, of constitutional principles. (The ninth amendment and the privileges and immunities clause of the fourteenth amendment might qualify, but
no modern Supreme Court case has ever rested directly on either of those provisions.) As
between the alternative interpretations, I therefore have chosen to give moderate interpretivism
a sharper and more interesting definition than some moderate interpretivists might endorse.
There is of course a risk of unfairness in ascribing to moderate interpretivism a contestable
ambition that it cannot in fact fulfill: if moderate interpretivism were defined more loosely, it
would not be vulnerable to the critique offered in the text. Even if defined more loosely,
however, moderate interpretivism would still have no articulate solution to the commensurability
problem and, in that sense, would be an incomplete theory, even if not one that failed on its
own terms.
124 See supra pp. 1205-o6.
12s 347 U.S. 483 (1954).
126 See supra text accompanying note 39.
127 The principal historical debate involves, first, which civil rights the framers viewed as
sufficiently fundamental to come within the provisions' protective ambit and, second, whether
they intended the list of protected rights to be a closed one. See generally R. BERGER, supra
note 39, at 166-92; Bickel, supra note 39.
19871
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that no state may deny any person the equal protection of the laws
a principle susceptible to applications far more expansive than
those that the framers themselves would specifically have endorsed. 128
Once a consistent adherence to the framers' specific intent is renounced, there simply is no value-neutral way to choose among pos12 9
sible specifications of the framers' abstract intent.
Recognition that moderate interpretivism relies on factors besides
text and history - and in particular that judges must make delicate
moral and political judgments to determine the contemporary meaning
of numerous constitutional concepts and the level of abstraction at
which the framers' intent ought to be stated - reveals the theory as
failed in its own terms. 130 Arguments from text and the framers'
intent turn out not to perform an independent and privileged function
of restraining judicial choice and determining constitutional outcomes.
Other factors not only do, but must, figure crucially in the constitutional calculus. 131
2. Ely's Democracy and Distrust Theory. No recent constitutional theory has generated more interest and enthusiasm than that
offered in Democracy and Distrust by Dean Ely. 13 2 Ely's theory
shares much with interpretivism.1 33 In common with interpretivists,
128 See R. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 37, at 133-36. For example,
this formulation could support changes in the legal treatment of women or of homosexuals.
129 Judge Bork has defended Brown as being grounded in the "neutral" principle that racial
discriminations were unconstitutional. See Bork, supra note 52, at 14-15. But Judge Bork's
selection of the principle to be enforced - founded on the idea that the core purpose of the
framers was to establish racial equality - itself reflects a contestable choice among the levels
of abstraction with which their purposes might be stated. See Brest, The FundamentalRights
Controversy: The Essential Contradictionsof Normative ConstitutionalScholarship, 90 YALE
L.J. io63, 1090-91 (198).
130 See supra note 123.
131 It does not follow, however, that nothing remains of the rule of law. It is a mistake to
believe, as the interpretivist does, that "the rule of law" requires judges' decisions to be "determined" by either the constitutional text or by the framers' intent, or even to be independent of
the judge's moral and political beliefs. The failure of interpretivism does not mean that there
is no rule of law. It reveals instead that the rule of law does not mean what the interpretivist
thought it did and that its meaning must be sought, not in stipulative definitions, but in the
social and legal contexts in which the phrase has its most natural use. See generally L.
WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS (G. Anscombe trans. 3d ed. 1976). I have
no pretension of being able to develop here a theory of the rule of law - undoubtedly a task
of enormous difficulty. Yet clearly the starting point should not be the interpretivist's stipulative
definition. For an insightful probing of some of the leading issues, see Michelman, cited in note
99 above.
132See generally Symposium: Constitutional Adjudication and Democratic Theory, 56
N.Y.U. L. REv. 259 (I98i); Symposium: JudicialReview versus Democracy, 42 OHIo ST. L.J.
I (1981).
133 Indeed, Ely recognizes that his theory could be viewed as a species of interpretivism.
See J. ELY, supra note 6, at 12-13, 87-88. But see Bork, Styles in ConstitutionalTheory, S.
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Ely finds judicial review problematic in a political democracy. 13 4 He

therefore seeks constraints on judicial decisionmaking 135 and relies
initially on the constitutional text. 136 But Ely does not believe that
arguments from text will often prove determinative. Nor, unlike the
interpretivists, does Ely trust the framers' intent as a source of insight
or determinacy. In many cases, Ely believes, the framers actually
intended to invest in judges the responsibility for giving content to
the framers' highly general directives. 13 7 Ely finds three constitutional
provisions to be totally "open-ended" 13 8 in their invitations to judicial
decisionmakers to enforce values that lack any direct connection to
the constitutional text. On Ely's reading, 139 the ninth amendment
specifically "refers to unenumerated [constitutional] rights"; 140 the privileges or immunities clause represents "a delegation to future constitutional decisionmakers to protect rights that are not listed either in
the Fourteenth Amendment or elsewhere in the document"; 14 1 and
the equal protection clause provides "no significant limitation at all"
on the range of evaluative choices that judges must make and therefore "amount[s] to . . . a rather sweeping mandate to judge of the
validity of governmental choices. "142
Adopting a resolutely majoritarian political theory, Ely regards
open-ended directives to judges to enforce extra-constitutional notions
of moral right as deeply troubling. 143 He therefore aspires to eliminate
the role of what he characterizes as "substantive" value arguments in
constitutional interpretation 14 4 - at least in cases involving the ninth
TEX L. REV.
not," because
134 See J.
135 See id.
136 See id.
137 See id.
383, 390 (1985) (arguing that Ely "is a non-interpretivist, whether he knows it or
he tries to make "the Constitution more democratic than the Constitution is").
ELY, supra note 6, at 4, 41.
at 41.
at 3.
at 13, 30. In this regard, the various constitutional provisions can be arrayed
along a spectrum.
Some, like the requirement that the President be 35 years old, are highly
determinate. Others, like the first and eighth amendments, provide at least a structured starting
point for constitutional reasoning yet "cannot intelligibly be given content solely on the basis of
their language and surrounding legislative history." Id. at 12. Still others are totally openended and allow much imposition of values from outside of the Constitution.
138 J. ELY, supra note 6, at 4I.
139 For an illuminating discussion of some alternative readings, see Estreicher, Review Essay,
Platonic Guardians of Democracy: John Hart Ely's Role for the Supreme Court in the Constitution's Open Texture, 56 N.Y.U. L. REv. 547 (1981).
140 J. ELY, supra note 6, at 34.
141 Id. at 32.
142 Id.
143 In Ely's view, it is so offensive for judges to choose without constraint among value
arguments to give meaning to the open-ended guarantees that, if there were no other alternative,
"responsible commentators must consider seriously the possibility that courts simply should"
refuse to enforce the open-ended provisions altogether. Id. at 41.
144 See id. at 87-88, 102-04, 181-83.
19s71
121
amendment and the privileges and immunities and equal protection

clauses. 145
Ely's effort, which occurs within the category of constitutional
theory, depends on an ingenious and sophisticated interpretation of
constitutional democracy and a distinction between substantive and
procedural values. According to Ely, the Constitution is a doubly
democratic document. Not only does it create an essentially majoritarian form of government; what is less adequately appreciated, Ely
claims, is that the Constitution's principal strategy to prevent substantive unfairness lies in the provision of procedural safeguards to
ensure that democratic processes work fairly. 146 Building upon this
foundation, Ely argues that the Constitution's implicit procedural values alone should be used to give content to the text's open-ended
guarantees. 147 Value arguments - at least those based on the substantive value of rights, the significance of interests, or the desirability
of outcomes - have no proper role. 148 On this interpretation, because
the Constitution's democratic scheme presupposes that all groups and
individuals will have fair opportunities to protect their interests
through participation in the political process, the judicial branch
should prescribe correctives only when the political process "malfunctions" by proving itself "undeserving of trust."'1 49 This happens in
only two situations:
the ins are choking off the channels of political change to ensure
that they will stay in and the outs will stay out, or (2) though no one
is actually denied a voice or a vote, representatives beholden to an
effective majority are systematically disadvantaging some minority out
of simple hostility or a prejudiced refusal to recognize commonalities
of interest, and thereby denying that minority the protection afforded
other groups by a representative system. 5 0
()
Ely's is a privileged factor theory, in which the privileged factors

are two. The first involves arguments from text. But because Ely
expects narrowly textual arguments to prove indeterminate in many
145 Ely is ambiguous about whether his theory reaches to constitutional provisions that
identifv a value - such as freedom of speech or the wrongfulness of cruel and unusual
punishments - yet apparently cannot be given content without appeal to arguments of value.
In Democracy and Distrnst, Ely sometimes appears to accept that courts must make substantive
value judgments in such cases. See id. at 12, 221 n.4 Other times, however, he suggests that
his theory, excluding the necessity for courts to make substantive value choices, does embrace
the first, see id. at IO5-I6, and eighth, see id. at 173-77, amendments.
14630 See id. at s8-ioi.
147 See id. at 12, 73-179.
14SSee id. at 43-75.
149 Id. at 103.
150 Id.
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cases, the second and functionally more important factor is that of

constitutional theory. Other kinds of argument fade from view. In
discussing the framers' intent, Ely recurrently emphasizes either its
indeterminacy or its reducibility to textual language. 15 1 Precedent
scarcely gets a mention in all of Democracy and Distrust. Finally,
Ely expresses sharp hostility to what he characterizes as substantive
value arguments. Concerned as he is with the claims of democracy
and the need for constraints on judicial discretion, Ely suggests that
his ideal - at least with respect to the Constitution's most open-ended
provisions - is a "value-neutral" process of constitutional interpreta52
tion. 1
Despite its vitality and insights, Ely's argument - like the interpretivism that it closely parallels - ultimately fails.' 5 3 It fails first in
its inability to resolve the paradox that lies at the heart of its treatment
of arguments of value.' 5 4 Ely rejects reliance upon substantive value
arguments to interpret the Constitution's "more indeterminate"' 5 5 or
"open-ended" 15 6 guarantees. But his assertion that the Constitution's
open-textured provisions should be read to thwart majoritarian outcomes only when necessary to advance process values 5 7 is itself based
on a substantive value choice about which constitutional values should
be paramount.' 5 8 Nor can his theory be applied without further value
judgments being made.
Although important textual evidence supports Ely's majoritarian
theory of the Constitution's essential character, it is equally possible
to support different theories by emphasizing provisions that, for example, create individual rights or protect private property.15 9 Ely's
theory, if justified as being derived solely from within the four corners
of the Constitution, is therefore underdetermined by the evidence,
0
which also is consistent with alternative theories that Ely rejects. 16
If Ely's theory is better, it is not because his fits the constitutional
data with unique accuracy, but because there are normative reasons
151See, e.g., id. at
I6,
17,
28,
36. But cf. id. at 16 ("It would be a mistake ...
to dismiss
'the intent of the framers' as beside any relevant point .... [S]ometimes in order to know what
was ratified we need to know what was intended.").
152 See id. at 70.
153 For forceful criticisms of Ely's theory, see Parker, The Past of Constitutional Theory And its Future, 42 OHIO ST. L.J.
223
(Ig8I); Tribe, The Puzzling Persistence of Process-Based
ConstitutionalTheories, 89 YALE L.J. 1o63, IO64 (Ig8o); Tushnet, Darkness on the Edge of
Town: The Contributions of John Hart Ely to ConstitutionalTheory, 89 YALE L.J. 1037 (1980).
154 See Parker, supra note 153, at 221 n.4; Tribe, supra note 153, at io67-77.
155 See J. ELY, supra note 6, at 221 n.4.
156 Id. at 41.
157 See id. at 88-oI.
M55
See Parker, supra note 153, at 236 ("Process itself, therefore, becomes substantive.")
(citing Tribe, supra note 153, at 1070-72).
159 See L. TRIBE, supra note 96, at io-ii; Schauer, supra note 17, at 816-i9.
160 See L. TRIBE, supra note q6, at io-ii; Schauer, supra note 17, at 816-17.
1987]
1221
to prefer it. In short, support for the theory must come from sources
external to the text - from arguments of value very like the kind
that Ely purports to reject as illegitimate. 161
Beyond their necessary role in the derivation of Ely's theory, value
arguments have a similar and equally problematic part in its application.1 62 An example will illustrate that "substantive" and "process"
values simply cannot be kept apart and that arguments about substantive values inevitably creep into the constitutional calculus. Ely
argues that courts should invalidate substantive legislation under the
equal protection clause only to correct process failures that result from
prejudice against minorities. 163 His theory seems to raise no objection
to legislation that enforces moral judgments that minorities find repugnant; he contends only that minorities must have a fair opportunity
to participate in the process by which the legislation is produced.164
The difficulty is that Ely's theory gives no basis for distinguishing
moral judgments, which will support a legislative choice, from prej5
udice, which will not. 16
The difficulty of the distinction is illustrated by a case that Ely
himself discusses: legislation penalizing homosexual conduct.1 66 How
are we to tell whether such legislation reflects a permissible moral
judgment that homosexual acts are wrong or results instead from
impermissible prejudice? Ely suggests that "prejudice" may be de-
161See Parker, supra note 153, at 235 ("Ely's theory, then, appears to me to be Ely's theory
- no more and no less. As such, it is very interesting. But by Ely's own standard that is not
enough."). Ely, of course, is too sophisticated not to recognize this. See J. ELY, supra note 6,
at IoI. Indeed, beyond the claim that his theory describes the Constitution accurately, Ely
relies on what he labels "overtly normative" arguments. Id. But while Ely claims that his
normative arguments are different from those of the judges and theorists whose substantive
value judgments he objects to, his effort at distinction is unpersuasive.
First, Ely defines judicial "value-imposition," id. at 75 n.*, the evil he seeks to avoid, in
such a way that his preferred "process" or "participational" values fall outside the scope of the
term. See id. It is one thing, he says, to value certain substantive outcomes and quite another
to endorse judicial enforcement of process or participational values. See id. This, however, is
less an argument than a definitional fiat, and Ely himself seems to recognize as much. See id.
Not everyone values democracy as much as Ely does. Moreover, "democracy" is an essentially
contestable concept, which cannot provide a basis for judicial action without an infusion of
normatively controversial content.
Second, Ely argues that his preferred process values - in contrast with the values relied on
by others - are those that "the Court should pursue." Id. But this purely normative argument,
whatever its independent force, compromises rather than supports the attempted distinction
between arguments asserting process values and those concerned with substantive values: the
suggestion that the substantive and participational values can be weighed against each other
according to a uniform scale implies that there is no difference in kind.
162 See L. TRIBE, supra note 96, at I1-19.
163 See J. ELY, supra note 6, at 153.
164 See id.
165 See L. TRIBE, supra note 96, at I1-19.
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fined, such that no problem arises, as simple "hostility" to a group

rather than as "unjustified hostility."1 67 But this approach only puts
off the problem. According to Ely, a legislative classification may
burden even a "suspect class" as long as the governmental interest in
the classification is sufficiently "substantial.' 168 Yet the inquiry into
substantiality cannot escape judicial value choice: is the government's
interest in prohibiting homosexual conduct, either on grounds of its
immorality or on some other basis, sufficiently important for prohibitory legislation to survive? The point is simple: without substantive
criteria to identify what ought normally to occur and thus what will
count as failure, we cannot tell when the political process has failed
to operate fairly. The substantive criteria must be supplied either by
69
the intent of the framers or, more probably, by arguments of value.1
The upshot is that Ely's theory fails on its own terms, because he
cannot maintain the independence of the category of arguments of
constitutional theory from the category of arguments of value.
Ely's theory is not only incapable of upholding the sharp separations on which it depends; it is also inadequate as a description of
modern constitutional jurisprudence. In summary terms, Ely undertakes to defend virtually all of the egalitarian jurisprudence of the
Warren Court, 1 70 while condemning substantive due process decisions
such as Roe v. Wade, 171 - decisions that he finds problematic because
of the Court's transparent reliance on arguments of value. 172 But
Ely's theory cannot account for the work of the Warren Court while
maintaining that substantive value arguments have no role in a conventionally structured constitutional calculus, especially in light of the
167 Id. at 153-54.
168 See id. at 154.
169 "Substantive" value arguments also play a large role in defining "procedural" rights under
the open-ended language of the due process clauses. This is most clearly evident in cases
involving asserted rights to a particular kind of hearing prior to government action. See, e.g.,
Goss v. Lopez, 419 U.S. 565 (1975) (suspension of a child from school); Goldberg v. Kelly, 397
U.S. 254 (1970) (withdrawal of welfare benefits). In order to determine what procedural rights
due process requires in such cases, the Supreme Court has prescribed a balancing test, in which
a court must assess the significance of both the individual and the societal interests that are
implicated. See, e.g., Mathews v. Eldridge, 424 U.S. 319 (1976). The Constitution could
provide little guidance for the required judgments if, as Ely maintains, it were generally
unconcerned with substance. Thus, on Ely's own assumption, extra-constitutional value arguments become crucial even in the adjudication of purely procedural claims under the due process
clause. See L. TRIBE, supra note 96, at 1-13.
171410 U.S. 113 (I973).
172 See J. ELY, supra note 6, at 2-3; Ely, The Wages of Crying Wolf- A Comment on Roe v.
Wade, 82 YALE L.J. 920 (1973). Ely does, however, accept and defend another decision that
most commentators believe must rise or fall with substantive due process methodology Griswold v. Connecticut, 381 U.S. 479 (i965) - on the ground that the Court was at least
moderately successful in "relat[ing] its holding to the first, third, fourth, and fifth Amendments."
J. ELY, supra note 6, at 221 n.4.
1987]
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Warren Court's own profession that its methodology required the

identification of "fundamental values" deserving of heightened judicial
73
protection. 1
Prominent judicial reliance on arguments of precedent also occasions at least mild embarrassment for Ely's descriptive claims. Even
in cases in which the argument solely addresses the meaning of prior
cases, Ely could of course maintain that precedent counts for nothing
by itself; case analysis "actually" represents a kind of shorthand expressing the conclusion of prior judgments about text and constitutional theory. At best, however, this reductionist account would miss
much of the phenomenology of constitutional argument. Judges and
lawyers frequently argue about what cases "mean" or "stand for" as
if the decisions had significance apart from what other sources of
authority require. Nor can Ely explain why Supreme Court justices
who dissent from a decision in one case should thereafter accept that
decision and reason from it as binding.
Ely's theory also fails along its normative dimension by prescribing
the impossible: the exclusion of substantive value arguments from
decisions under open-ended constitutional clauses. To this allegation,
Ely conceivably might respond that, even if judges ultimately must
rely partially on value judgments, they should be as self un-conscious
as possible in doing so. But if reliance on value judgments is a
necessary part of judicial decisionmaking, then judges ought to think
more about the force of contending value arguments, not less, else
the judges become the prisoners of their unreflective assumptions.
Even if this were not a danger, it would not be a better regime of
constitutional law if judges, even in hard cases in which other kinds
of argument were in equipoise, eschewed appeals to arguments of
value. The essence of good judging lies in judgment. And judgment
in the constitutional context implies a substantive sensitivity to what
rules of constitutional law would be good or bad, better or worse.
B. Open-System Theories
In contrast to privileged factor theories, what I shall call "opensystem" theories respond to the commensurability problem by denying
that there is or could be any set of generally applicable rules or
articulable principles to indicate how constitutional arguments of the
various kinds ought to be combined.1 74 According to this view, con173See, e.g., Shapiro v. Thompson, 394 U.S. 618, 638 (1969) (referring to "the fundamental
right of interstate movement"); Loving v. Virginia, 388 U.S. 1, 12 (1967) (stating that marriage
implicates a "fundamental freedom"). Ely's explanation is that the Court occasionally "lapse[d]"
into the rhetoric of earlier courts and misunderstood the "deep structure" of its own thought.
See J. ELY, supra note 6, at 73.
174See, e.g., L. TRIBE, supra note 96, at 3-11; Fish, Fish v. Fiss, supra note 26; Fish,
Chain Gang, supra note 26. For a philosophical argument that the tacit knowledge of competent
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stitutional decisionmakers must resolve commensurability problems

not by appeal to rules or principles 175 but in accordance with their
"tacit" sense of what is possible and impossible, good and bad, in
particular cases. 176 Open-system theories need not deny that even the
most difficult constitutional questions have right answers, nor that
various kinds of constitutional argument must be combined in the
proper way for those answers to be reached. They do, however, insist
that the correctness of any particular approach to the commensurability problem in a given case does not and cannot depend on its
conformity with any rule, principle, or formula. Indeed, open-system
theories, as I define them, maintain that the reasons for pronouncing
an approach correct or incorrect form patterns so complex as to defy
rule-like statements of the circumstances in which arguments of any
particular kind ought to dominate the result. 177 Although the term
"open-system" theory embodies an ideal type, which does not describe
the work of any particular theorist, it has important similarities with
the claims asserted by Professors Laurence Tribe 178 and Stanley
Fish. 179
The chief apparent virtue of an open-system approach resides in
its capacity to account for the extreme complexity of our constitutional
practice. By eschewing claims that there are generally applicable rules
or even articulable principles for weighing or combining constitutional
arguments of different kinds,' 8 0 open-system theories yield a uniquely
credible promise never to falsify the practice of constitutional interpretation through reductionism or oversimplification.
Open-system theories are extraordinarily difficult to assess. Because open-system theories are consistent with both the results and
participants in any complex practice will necessarily outrun any rule-like statement of that
knowledge, see M. POLANYI, PERSONAL KNOWLEDGE 69-131 (1958).
175 Rules and principles are usefully distinguished. See R. DWORKIN, TAKING RIGHTS
SERIOUSLY, supra note 37, at 22-28. A rule, if it applies to a situation, must be obeyed. By
contrast, principles can apply to a situation yet be outweighed by other, competing principles.
For a similar distinction between rules and "standards," see Kennedy, Form and Substance in
Common Law Adjudication, 89 HARv. L. REV. 1685, 1687-1701 (1976).
176 See Fish, Fish v. Fiss, supra note 26, at 1333-34.
177 See id. at 1328-32.
178 See L. TRIBE, supra note 96, at 3-1I.
179 See, e.g., Fish, Fish v. Fiss, supra note 26; Fish, Chang Gang, supra note 26.
180 Open-system theories need not be wholly nihilistic. It is quite consistent with an opensystem approach to recognize the possibility of useful generalizations about what ordinarily is
done in our practice of constitutional interpretation. Open-system theories, as I have defined
them, need only deny the possibility of accurate rule-like statements specifying what someone
must do in order to conform to the norms of the practice of constitutional interpretation. Nor
do open-system theories deny that constitutional interpreters experience a sense of constraint
arising from the nature of the practice in which they are engaged. They insist only that the
constraint is better characterized in terms of a "tacit awareness of what is possible," Fish, Chain
Gang, supra note 26, at 562, than in terms of general rules or norms.
19871
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the structure of argument in all possible cases, there is no possibility

of refuting such theories by counterexample. This total lack of discriminating power is by no means an unalloyed advantage; indeed, it
gives rise to the question of whether open-system theories, as I have
defined them, deserve to be called theories at all. 18 1 Nonetheless, the
open-system theories clearly need to be taken seriously. They pose
the important and challenging claim that our constitutional practice
is so pervaded by indeterminacy, complexity, conflict, and vagueness
that any attempt to give a rule-like account of its nature would falsify,
not clarify. 182

Although open-system theories cannot be disproven, they are problematic along both their descriptive and their normative dimensions.
Descriptively, open-system theories are embarrassed to the extent that
constitutional interpreters perceive themselves as subject to rule-like
constraints in assessing the respective claims of different types of
argument. The degree to which judges and other constitutional interpreters understand themselves as being bound by rules or principles
is difficult to document empirically. But Professor Owen Fiss makes
assumptions about how judges understand their obligations that echo
my own. "I picture the judge," Fiss writes, as "trying to choose, in
a self-conscious and reflective manner, between the arguments of contending lawyers, and in that process thinking about and perhaps
discussing (with colleagues and clerks) the rules and the norms of the
18 3
profession - What do they imply for the case at hand?"'
To illustrate what I take to be Fiss's assumption, imagine the case
of a Supreme Court justice who believes capital punishment to be not
only inherently morally wrong, but also so empirically random in its
application that it arguably violates the constitutional prohibition
against cruel and unusual punishment and the due process clause.
Suppose further, however, that this same justice finds that capital
punishment is contemplated by the plain text of the Constitution and
was approved by the framers. 184 Like Fiss, I would expect this
181Open-system theories need not deny that constitutional decisionmakers normally accept
guidance from such "informal criteria" as habits, nonbinding conventions of practice, intuitions
that some outcomes will be perceived as normatively more attractive than others, and commonly
shared understandings about proper institutional roles. See generally Stick, Can Nihilism Be
Pragmatic?, OO HARv. L. REV. 332, 354-58 (1986) (discussing possible bases for predictability
in law). Nor do they deny the possibility of predictability in our constitutional practice. They
insist only that predictions about how different kinds of arguments will be combined or weighed
against each other in particular cases could not be based on the assumption that judges and
lawyers will conform to identifiable rules or principles. Instead, predictions would need to be
based on other factors. See id.
182 See, e.g., L. TRIBE, supra note 96, at 3-11; Fish, Fish v. Fiss, supra note 26; Fish,
Chain Gang, supra note 26.

113 Fiss, Comment, Conventionalism, supra note 26, at 187.
184 There is constitutional language that appears to contemplate the legitimacy of capital
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hypothetical justice to appeal to the normative structure of the practice

of constitutional interpretation, as she understands it, 185 to determine
whether it is permissible for her to render a judgment contrary to
that indicated by what she initially takes to be the best arguments
from text and from the framers' intent. I would not expect her inquiry
to be merely ad hoc or addressed solely to others' "tacit" sense of what
the particular situation allowed. On the contrary, I would anticipate
a process of reflection and analysis that included consideration of the
general role of arguments from text and arguments based on the
framers' intent in our constitutional practice. If I am right - if judges
and lawyers take seriously questions about how the implicit norms of
their practice generally require them to weigh different kinds of argument - then open-system theories are undermined, although of
course not refuted, in their descriptive claims. 186
Also diminishing the attractiveness of open-system theories is their
failure to tell the confused or uncertain person what she wants and
needs to know. Such theories posit that insiders to our constitutional
practice will necessarily have a highly developed tacit sense of what
is possible and desirable in particular cases. But many decisionmakers
feel not professional certainty but uncertainty. Although even the best
prescriptive theory may not be wholly determinate, a theory that gives
punishment, at least under certain circumstances. The fifth amendment refers to "capital
crime[s]" and provides that no person shall be "twice put in jeopardy of life" nor "deprived of
life . . . without due process of law," U.S. CONST. amend. V, and the fourteenth amendment
contains a due process clause identical to that of the fifth, id. amend. XIV. This language
supports an argument from text that the death penalty cannot be per se unconstitutional and
embarrasses any argument of constitutional theory to the contrary. The language also provides
powerful evidence of the intent of the framers, who acted in an historical context in which the
death penalty was common. See McGautha v. California, 402 U.S. 183, 226 (197I) (Black, J.,
dissenting); cf. Furman v. Georgia, 408 U.S. 238, 405, 414 (1972) (Blackmun, J., dissenting)
(stating that although "personally I may rejoice" at the Court's invalidation of capital punishment
statutes, the result is indefensible "as a matter of history, [or] of law"). Whether these arguments
could be overcome is a question to which I do not mean to suggest any answer. For forceful
arguments suggesting that they could, see C. BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE AND MISTAKE (2d ed. 1981).
185 For an account of how the normative structure of the practice would need to be identified,
see pages 1231-37 below.
186 Professor Fish appears to believe the contrary: that even if lawyers, judges, and justices
recognized certain rules of interpretive practice, the rules would be virtually meaningless. The
rules could not "constrain" argument or decisionmaking, he argues, because the rules themselves
would always have to be "interpreted" by the very persons they were intended to constrain.
See Fish, Fish v. Fiss, supra note 26, at 1326-27. But this argument fails to establish either
that the practice of constitutional interpretation lacks rules or that its rules are insignificant.
For rules to be effective, a constitutional interpreter need only be capable of following them in
roughly the same way that rules are followed in other contexts and practices. Sophisticated
hermeneutic theories suggest that rule-following may be a more complicated and even a more
precarious process than we might have thought, but not that we cannot sensibly refer to certain
conduct - including that of judges and even justices of the Supreme Court - as rule-following.
See generally L. WITTGENSTEIN, supra note 131.
19871
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no rule-like guidance to the puzzled and uncertain is scarcely a theory

at all and can make no compelling claim to normative attractive87
ness. 1
A further deficiency marks the implicit claim of open-system theories that it is more desirable for judges to weigh different kinds of
argument on an ad hoc and impressionistic basis than to be governed
by rules or articulable principles. Simply stated, the problem is that
this position tends to undermine the foundations on which such ruleof-law virtues as consistency and predictability depend. Although
open-system theorists might argue that their approach does not wholly
eviscerate predictability and consistency' 8 8 and that it better permits
judges to do the right thing in individual cases, what the "right thing"
is depends heavily on expectations generated by the relatively stable
and rule-like practice of judges in similar cases within the legal system.
C. Balancing Theories
A final approach to the commensurability problem merits
discussion' 8 9 not because of its prominence but because of its intuitive
Is7Some qualification of this point may be needed. I have defined open-system theories as
theories that deny that the conscientious constitutional interpreter is constrained by rules or
articulable principles regulating how different kinds of constitutional argument should be
weighed or combined in a single process of decision. There is, however, a middle ground
between constraint by rules or articulable principles and no constraint at all. See Stick, supra
note 18r, at 354-55. It is therefore possible that someone who is an open-system theorist within
my definition would succeed in articulating "informal criteria," id. at 355, that would give
significant, even if not rule-like, guidance. I am unaware, however, of any such articulation.
Iss
See supra notes 18i, 187.
159 Bruce Ackerman's characteristically original contribution to the constitutional theoretical
debate, see supra note 96, does not as much propose a solution to the commensurability problem
as pronounce the problem insoluble until our understanding of our interpretive practice is
substantially revised. Although it risks distortion to view Ackerman as if he were concerned
principally with issues of commensurability of different kinds of constitutional argument, it is
possible to tease out of his work an assessment of that problem. Ackerman views our current
interpretive practice as lacking in integrity, largely because current constitutional doctrine is
irreconcilable with too much of the constitutional text and with the framers' intent. See id. at
1044-45, 1070-71 The most striking disparities arise, Ackerman argues, because of the constitutional revolution that occurred during the New Deal era. According to Ackerman, in x937
the Supreme Court effectively began to interpret the Constitution as if it were compatible with
our modern welfare state, despite the continued existence of constitutional language - such as
that of the contracts clause and the due process clause - that bespeaks a commitment to laissezfaire principles. See id. at 1051-71. Ackerman similarly regards the intent of the framers of
the written Constitution as generally supportive of laissez faire. See id.
Ackerman's conclusion, however, is not that constitutional doctrine should be reformed. Nor
is it that the constitutional text and the framers' intent should be denied authoritative status.
Instead, Ackerman argues that our concepts of the Constitution and the framers' intent should
be broadened to encompass effective "structural amendments" to the Constitution that have
occurred in ways other than through the formal mechanism of article V. See id. at 1044-45,
1051-72.
Crucial to Ackerman's project is a distinction between "constitutional politics" and "normal
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plausibility. Under a "balancing" theory, each of the various kinds of

constitutional argument would count in proportion to its quality, determinacy, or worth in individual cases. A constitutional interpreter
would look first at the competing arguments within each of the categories and, treating the categories as independent from each other,
identify which arguments were most convincing - which was the
most persuasive argument from text, which offered the most satisfying
account of the intent of the framers, and so forth. The best argument
within each category would then receive a weight. Two concerns
might be relevant in assigning that weight. The first involves the
argument's power or determinacy within its own category. If, for
example, the intent of the framers could be established with great
certainty, this factor could be weighted more heavily than if the
0 The second
conclusion as to the framers' intent were speculative. 19
concern might require adjustments depending on the importance of
the category of argument. Arguments from text, for instance, might
be assigned greater weight than value arguments. Even though value
arguments have a legitimate role in constitutional interpretation, it
might be thought that they should nonetheless have less influence than
arguments from text. Finally, after all the relevant weights were
assigned, the competing arguments would be balanced against each
other to determine the outcome of the case.
Surprisingly, no powerfully argued balancing theory has achieved
prominence in the scholarly literature. 19 1 One possible reason, of
politics." See id. at 1022. The ceiitral assumption of American constitutionalism, he argues, is
that all decisions by the democratic electorate do not stand on the same footing: the presupposition of constitutionalism is that "higher" or constitutional law should impose limitations on the
power of political majorities. But why should a majority in one historical era be allowed to
thwart the preferences of a majority in a later era? The crucial distinction, according to
Ackerman, depends on the degree of political attentiveness and seriousness of the enacting
electorate. See id. at 1022-31, 1051-72. Furthermore, Ackerman asserts, the public can attain
the requisite degree of political seriousness to render decisions deserving of constitutional status
without resorting to the formal mechanism of a constitutional amendment under article V. See
id. at 1051-72. Thus, Ackerman concludes, the appropriate challenge is not to construe the
written Constitution as compatible with the conclusions reached during periods of high political
seriousness. It is, rather, to identify such periods and to specify the informal constitutional
amendments that effectively occurred. See id.
Although Ackerman sometimes suggests a contrary view, his theory seems to offer less an
account of our existing practice than a proposal for reform. Taken on those terms, the theory
is richly ambitious and provocative, but involves serious problems of (i) adducing criteria for
the identification of periods of high political seriousness, (ii) determining as an historical matter
which eras fall into that category, and (iii) determining, in the absence of either an authoritative
textual provision or even a specification of the set of "framers" or ratifiers whose thought might
guide the enterprise, which value judgments have been elevated to constitutional status. To the
extent that Ackerman does offer a solution to the commensurability problem, his theory needs
fuller elaboration before it could be accepted as a guide for judicial action.
190 The Supreme Court has acknowledged that the intent of the framers is sometimes uncertain. See, e.g., Brown v. Board of Educ., 347 U.S. 483, 489 (1954).
191 There are, to be sure, well-known theories that call for the balancing of arguments for
1987]
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course, is that a balancing approach is transparently inadequate. It

is at least equally likely, however, that the problem of how to combine
different kinds of constitutional argument in a single calculus has too
often been ignored. Categorical balancing appears to have two important virtues that make it at least worth exploring. 192 First, a
balancing approach would allow all of the generally recognized factors
to count in the constitutional calculus. Second, balancing respects the
common sense proposition that arguments ought to count in proportion
to their determinacy or persuasiveness on their own terms. When the
best arguments within a category are only marginally more convincing
than their rivals, it is an alluring claim that the prevailing argument
ought to count less in the overall calculus than one that is established
to a virtual certainty.
Balancing, however, would also have important disabilities. Descriptively, if balancing provided the best account of how arguments
of different kinds are weighed in a single scale, then we would expect
judicial opinions and legal briefs to acknowledge that various kinds
of arguments indicate different conclusions and to discuss the weight
that different arguments merit. But this seldom happens. Far more
common are opinions and arguments that, while emphasizing one
factor more than others, assert or imply that the most persuasive
arguments within all of the categories are consistent with a preferred
conclusion. Moreover, when judges and justices acknowledge a disparity between the conclusions indicated by different kinds of arguments, their approach is not generally to balance. In such cases,
judges more typically protest that they are bound absolutely by some
and against upholding a claim of constitutional right. See, e.g., Gunther, In Search of Judicial
Quality on a Changing Court: The Case of Justice Powell, 24 STAN. L. REV. 1001 (1972)
(discussing a balancing approach as employed by Justice Powell); Mendelson, On the Meaning
of the First Amendment: Absolutes in the Balance, 50 CALIF. L. REv. 821 (1962) (discussing a
balancing methodology used in first amendment cases). There are also conspicuous opinions in
which courts have engaged in conspicuous balancing. See, e.g., Mathews v. Eldridge, 424 U.S.
319 (1976) (fifth amendment); Konigsberg v. State Bar, 366 U.S. 36 (i96i) (first amendment).
But the type of balancing that is commonly discussed and practiced is balancing within a
category of argument. First amendment balancing theories, for example, do not generally
suppose that arguments from the text point one way, arguments of the framers' intent another,
and so forth, and then prescribe balancing of one categorical conclusion against another to
resolve the impasse. Instead, the familiar balancing theories operate within the category of
arguments of value or of constitutional theory, where they attempt to identify and weigh
competing interests. See, e.g., Gunther, supra.
192 A theory like balancing seems a strong candidate to reflect the preferred approach of
"non-interpretivists" or "supplementers," see Grey, The Constitution as Scripture, 37 STAN. L.
REv. 1, 1-5 (1984), who argue that the courts should take account of arguments from text and
the framers' intent but should not deem them the controlling authority in every case. Unfortunately, proponents of this approach have seldom taken the next step of demonstrating how
arguments from text and the framers' intent ought to be weighed against other kinds of arguments to arrive at an outcome in a particular case.
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privileged factor or factors, such as the constitutional text or the
93
framers' intent. 1
An additional defect of the balancing approach, as I have so far

defined it, inheres in the implicit assumption that the five types of
constitutional argument are substantially independent - that it is
possible to reach independent assessments of the balance of arguments
within each of the categories, without looking at the others, and to
assign weights to the separate conclusions. As I have already suggested, and shall soon argue at greater length, the factors in fact are
very significantly interdependent. 194 Balancing mischaracterizes the
reality of our constitutional practice in this regard.
To this criticism, someone developing a balancing theory might
respond that balancing need not assume that the categories of constitutional argument are wholly independent, but only that, once the
best argument within each of the categories is identified - even if it
is established through some sort of interaction with arguments in other
categories - it should then be assigned a weight and balanced against
other factors. This proposal is neither incoherent nor implausible,
only incomplete. It fails to explain precisely how conclusions within
the various categories ought to be reached once their lack of independence is recognized. Later in this essay, I shall offer one possible
explanation, but it is one that is not wholly compatible with balancing. 195
D. Critique as Prologue
Although I have emphasized the deficiencies of the theories so far
discussed, my claim cannot yet be that those approaches to the commensurability problem lie vanquished. The telling question is what
theory provides the best account of how different kinds of constitutional argument are and ought to be weighed on a single scale. Thus
framed, the issues are comparative, not absolute. Before I offer my
own answer to the commensurability problem, it may therefore be
useful to summarize the strands of argument on which I have relied.
193 See, e.g., Harris v. McRae, 448 U.S. 297, 326 (i98o) ("It is not the mission of this Court
or of any other to decide whether the balance of competing interests reflected in the Hyde
Amendment is wise social policy. If that were our mission, not every Justice who has subscribed
to the judgment of the Court today could have done so."); Furman v. Georgia, 408 U.S. 238,
405-14 (1972) (Blackmun, J., dissenting); Griswold v. Connecticut, 381 U.S. 479, 527-31 (1965)
(Stewart, J.,dissenting).
194 See infra pp. 1238-39.
19s See infra pp. 1237-5I. A balancing theorist who tries to adopt my explanation will
therefore offer a version of "balancing" that is little more than a variant of my own theory. I
cannot say that a better version of balancing is impossible. Maybe someone could, or will,
develop a complete and workable balancing methodology. As yet, however, no adequate version
of balancing has been promulgated.
1987]
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Together, the various types of criticism will help to suggest the criteria
that a better theory needs to satisfy.
One important type of criticism involves descriptive adequacy.
Privileged factor theories deny the relevance of all but one or two
factors. Yet at least five different types of argument are too widely
recognized as legitimate for a privileged factor theory to be a plausible
theory of our existing constitutional practice. A role for all five categories of argument must be recognized. But those roles are not the
ones indicated by a balancing approach. Balancing also misdescribes
what actually happens in constitutional interpretation. Rarely if ever
do judges and lawyers indicate that different factors point to different
conclusions or that the factors must be balanced against each other
to determine the correct result.
A second line of criticism has been expressly normative. My normative criticisms have come from two sides. On the one hand, I have
criticized originalism, which rejects any attempt to accommodate modern needs and evolving moral and political sensibilities by departing
from the framers' specific intent, for being too rigid and inflexible.
On the other, open-system theories have nearly the opposite vice.
They provide insufficient" structure to constitutional argument and
interpretation. Some middle position is needed.
Finally, a third critique has been that the various kinds of constitutional argument are not as independent as several approaches to the
problem of commensuration assume. Privileged factor and balancing
theories are both vulnerable to this criticism. Value arguments, in
particular, permeate the other categories of argument. But there are
other interconnections as well. A more successful approach to the
commensurability problem would need not only to recognize interrelationships and interdependences among the various categories of argument but also to trace the lines along which arguments concerning
one factor can influence judgments concerning another.
HI. WHAT KIND OF THEORY?

The criticisms offered in Part II, and the criteria of theoretical
adequacy or excellence to which they point, assume that possible
solutions to the problem of commensuration of different kinds of
constitutional argument should be tested along both a descriptive and
a normative dimension. Yet this assumption, at least when made
explicit, is deeply controversial. A familiar distinction sharply differentiates two kinds of legal theories: descriptive (or positive) and normative. 19 6 Within the terms of this dichotomy, positive or descriptive
16 See, e.g., Posner, Some Uses and Abuses of Economics in Law, 46 U. CHi. L. REv. 28,
285 (1979); see also Michelman, Norms and Normativity in the Economic Theory of Law, 62
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theories undertake to give accurate accounts of what happens in the

world and to make predictions about the future course of events.
Their methodology is that of disinterested social science. 19 7 On the
other side of the divide, normative theories are wholly prescriptive. 198
Their methodology is that of moral and political philosophy. The
roots of the positive-normative dichotomy run deep. No "is" follows
from "ought." Nor is "ought" implied by "is." Where the descriptive
and normative inquiries are conflated, the argument runs, only failure
can follow - nothing of either descriptive or prescriptive value. 199
Prior to the development of my own answer to the commensurability problem, and partly by way of explanation for the criticisms
offered in Part II, it may be useful for me to explain and defend the
assumptions that underlie my mixing of descriptive and normative
arguments. The first and most important assumption is that constitutional interpretation is a "practice" in the sense in which philosophers use that term: it is a complex form of socially established activity
that is both made possible and given structure by implicit rules,
norms, standards, and conventions 20 0 - terms that, for the most part,
I use interchangeably. 20 1 The rule structure need not be articulable
by everyone who participates in the practice, any more than someone
must be able to state the rules of grammar in order to speak proper
English. 20 2 But without some structure of rules - capable of defining,
for example, what counts as a constitutional argument at all - constitutional interpretation would not be a practice but a cacophony of
MINN. L. REV. 1015, 1031-32 (x978) (developing a distinction between "legal policy studies"
and "explanatory studies of law" that "roughly parallels that which others have in mind when
they distinguish between 'normative' and 'positive' studies").
197 See, e.g., Posner, supra note 196, at 285, 287.
198 See, e.g., id. at 285.
199 The "is-ought" distinction, on which the "positive-normative" dichotomy is ultimately
predicated, was most famously developed in D. HUME, A TREATISE OF HUMAN NATURE bk.
III, pt. I, sec. I, at 469-70 (L. Selby-Bigge ed. 1888), and continues to be influential in
philosophy and social science, as well as in law. For various articles on the interpretation of
Hume's argument and on the is-ought question generally, see THE Is-OUGHT QUESTION (W.
Hudson ed. 1969).
200 For philosophical analyses of the concept of a social practice, see A. MACINTYRE, AFTER
VIRTUE 175-89 (i981); Rawls, Two Concepts of Rules, 64 PHIL. REV. 3 (1955); Taylor, Inter-
pretation and the Sciences of Man, in INTERPRETIVE SOCIAL SCIENCE: A READER 25, 46-55
(P. Rabinow & W. Sullivan eds. 1979).
201 Interchangeable use of the terms sacrifices the precision that might be gained by rigorous
adherence to a distinction between "rules," which must be observed if they apply at all, and
"standards" (and possibly "norms"), which can be outweighed by other articulable factors also
relevant to a decision. See supra note 175. In failing to differentiate the terms here, I mean
to emphasize what they have in common: "rules," "norms," "standards," and "conventions" all
are publicly statable guides to conduct that are capable of giving structure to a practice and of
supporting judgments that conduct and arguments are intelligible or unintelligible, appropriate
or inappropriate, good or bad, or right or wrong.
202 See J. SEARLE, SPEECH ACTS 42 (1969).
1987]
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confusion. In other words, the existence of at least some widely shared

norms, establishing constitutional interpretation as a practice, is a
necessary condition of our ability even to understand each other's
constitutional arguments as successfully as we do.
Although a framework of rules and conventions must be posited
to explain the intelligibility of constitutional debate, the extent of
dispute within our constitutional practice should not be obscured, nor
the significance of disagreement minimized. Constitutional lawyers
disagree about many fundamental matters - for example, about
whether the "original understanding" of constitutional language and
the intent of the framers must always be dispositive of constitutional
issues. 20 3 If the existence and scope of the norms of our constitutional
practice were viewed as simple matters of fact, the conclusion would
be inescapable that the norms and conventions obtaining within the
practice are too weak or conflicting to control
controverted questions
20 4
of the kind with which I am concerned.
My second important assumption is therefore that a successful
theory of our practice of constitutional interpretation can be neither
purely descriptive nor purely normative. Needed is an integrated mix
of the two elements. By its nature, any theory of our existing practice
must be tested descriptively; the aim is a theory of our constitutional
order, not Utopia's. But the patterns of behavior that a constitutional
theory must describe are frequently amorphous, ambiguous, and conflicted. They are capable of being fitted equally well - which is also
to say equally imperfectly - into more than one theory. It is thus
no surprise that nearly all approaches to the commensurability problem are descriptively flawed. 20 5 Some may be more so, others less so.
But in a practice marked by fundamental disagreement, it would be
astonishing to find a perfect fit between theory and practice. The
question, then, is how to select from among descriptively plausible
but not uniquely determined theories. My answer, following Professor
Dworkin, is that when more than one explanation of the practice and
its rule structure is reasonably defensible, the best theory will be that
which is not merely descriptively plausible, but also guides future
conduct in the most normatively attractive way. 2 0 6 This mixture of
203 Compare Monaghan, supra note 30, at 376 (arguing that it is "[o]ur legal grundnorm
that the body politic can at a specific point in time definitively order relationships, and
that such an ordering is binding on all organs of government until changed by amendment")
with R. DWORKIN, supra note II, at 359-69 (rejecting "historicism" as a theory of constitutional
interpretation).
...
204 See R. DWORKIN, supra note ii,
at 114-50 (criticizing strict "conventionalist" legal
theories on the ground that conventions will run out before giving needed guidance in hard
cases); Fish, Fish v. Fiss, supra note 26, at 1330-31; Levinson, supra note 26, at 401-03.
20s See supra pp. 1213, 1222-23, 1225-26, 1229-30.
206 Although I follow Dworkin in seeking an interpretive theory of our constitutional practice,
I believe that I diverge from his approach in offering a theory that relies on rules or conventions
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normative and descriptive criteria reflects an approach that Dworkin

has labeled "interpretive." 20 7 The goal is to portray the practice in
the best light that is reasonably compatible with the self-understanding
20 8
of practitioners.
A predictable objection to the interpretive approach is that the
normative debate is not really about our existing practice and its rules,
but instead reflects a quixotic attempt to prescribe what the norms of
the practice ought to be. 20 9 That norms should be respected does not
establish that they really are respected; if rules are not adhered to by
all or nearly all participants in the practice, they cannot really be
rules at all. 210 This line of argument, which resonates with what I
have termed open-system theories, has initial allure. In fact, however,
it rests upon a misconception. The objection overlooks the extent to
which all constitutional argument necessarily implies a commitment
to norms that can only be established through interpretation. Every
constitutional argument, every constitutional interpretation, must rely
at least implicitly on a theory of the standards, norms, or conventions
as being constitutive of the practice. I am uncertain in this regard, however, because of an
ambiguity in Dworkin's argument. Dworkin assumes that an interpretive conception of legal
practice, within which everyone reaches her own interpretation of what legal practice requires,
must postulate a "pre-interpretive stage" in which "the rules and standards taken to provide the
tentative content of the practice are identified." R. DWORKIN, supra note Ii, at 65-66. But
he is ambiguous about whether the "rules and standards" survive the "pre-interpretive stage"
and figure as ultimate constituents of his theory that law is interpretation and that the best
interpretive theory of law is one of "law as integrity." The ambiguity arises for two reasons.
First, Dworkin seldom if ever mentions conventions, rules, or standards in developing his formal
theory. See id. at 176-275. Second, Dworkin's terminology implies that the "pre-interpretive
stage" is of limited duration in the life of the practice, so that rules and standards ultimately
could wither away in more advanced stages, when it is understood that the character of the
practice must be understood interpretively.
But whatever Dworkin's position, the continuing dependence of the concept of a practice on
the existence of rules, norms, and standards is inescapable. In every historical era, aspiring
constitutional interpreters decide for themselves what the practice requires only after the practice
is identified by reference to "the rules and standards taken to provide [its] tentative content."
Id. at 65-66. Thus, even on Dworkin's own assumptions, rules and standards must be recognized in order to give the practice of constitutional interpretation sufficient structure to constitute
it as a practice susceptible of interpretive theorization.
207 Id. at 45-113.
208 See id. at 52-53.
209 Cf. L. TRIBE, supra note 96, at 4-6 (asserting that attempts to "propound normative
criteria for how [the] enterprise [of constitutional interpretation] may legitimately be conducted"
are inherently "subjective" and "not worth pursuing").
210 Professor Tribe thus finds it significant that the premises to which particular constitutional
arguments appeal "may be premises that others do not share and that no one can claim to have
'discovered' in a privileged place external to the disputants themselves and insulated from who
they are and what groups they belong to." Id. at 5. Professor Fish's theory of interpretation
similarly attaches weight to the existence of different "interpretive communities," each of which
follows different interpretive strategies in pursuit of their different purposes. See S. FISH, IS
THERE A TEXT IN THIS CLASS?, supra note 26, at 14-15
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1235
that establish it as a good or plausible argument or interpretation. 21 1

Why is an argument correct? Why should anyone be persuaded?
Merely to engage in constitutional argument is to assume that these
questions can and do have answers that are rooted in our practice of
constitutional interpretation.
Although it is surely possible to offer a constitutional argument
knowing that reasonable people will disagree, the unspoken assumptions underlying our attempts to persuade each other remain undisturbed: we cannot decide hard constitutional questions, or even argue
about them, without presupposing that there are standards of legitimacy that govern what is appropriate and inappropriate, powerful
and irrelevant, in determining what the Constitution means. 2 12 And
because the normative structure that is presupposed by our arguments
cannot be identified as a simple matter of fact, the blurring of the
distinction between "is" and "ought" is not methodological confusion
but a phenomenon already embedded in our constitutional practice.
As constitutional lawyers we frequently can, do, and must appeal to
normative arguments in asserting claims about how the norms of the
2 13
practice ought to be understood or applied.
Consider, for example, the accepted rule that the Constitution may
not be construed incompatibly with the plain language of the constitutional text in its interpretive context. 2 14 Although the existence of
the rule itself is relatively uncontroversial, debates arise about what
the rule means and when it applies. Courts and commentators disagree, for example, over when the text's meaning is plain and how
far precedent can affect the analysis. 2 15 In such controversies, the
211 See Fiss, Objectivity and Interpretation, supra note 26, at 754 ("The correctness of any
interpretation is relative to a set of standards ....");Michelman, supra note 99, at 72.
212 See Fiss, Objectivity and Interpretation, supra note 26, at 754; Michelman, supra note
99, at 72.
211 My argument again is influenced by, although does not precisely follow, Dworkin's. See
supra note 207. Dworkin argues that because law is an "interpretive concept," lawyers must
develop their own individual theories of the practice in which they are engaged in order to
know what constraints and obligations the practice imposes. See R. DWORKIN, supra note i i,
at 45-86. In developing such theories, Dworkin argues, the principal task is to develop an
account of the purposes of legal practice. See id. at 50-52. With the interpretive task defined
to include the imposition of purpose on the practice of legal interpretation, normative commitments become crucial to legal theory in two ways. First, an interpreter's moral and political
views will influence her understanding of the practice in which she is engaged, because it is
part of the essence of interpretation to characterize the interpreted practice as "the best possible
example of the form or genre to which it is taken to belong." Id. at 52. Second, where the
criteria of "fit" and normative excellence are in tension, the interpreter's moral commitments
will influence her judgment of where the balance ought to be struck. See id. at 52-53; R.
DWORKIN, A IATTER OF PRINCIPLE, supra note 26, at 16o-62.
214 See supra pp. 195-98 (discussing arguments from text).
21 See inf a p. 1238 (discussing the influence of precedent on arguments from text).
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issue of how to apply the interpretive norm cannot be settled by direct

reference to its conventionally accepted range of applications. It is
the absence of determinate conventional understandings that provokes
debate in the first place. The application of the norm will depend
upon background webs of normative assumptions and values that
themselves are objects of dispute within the constitutional community. 2 16 In other words, although a norm's existence is not disputed,
its extension frequently may be, and the question of meaning can only
be answered by a moral or political argument about how the norm
ought to be understood - about whether, for example, allowing
precedent to affect the construction of the constitutional text is consistent with the purposes and values of our constitutional practice.
Differences of opinion within the practice of constitutional interpretation extend not only to questions of how conventions or rules
ought to be interpreted, but also to whether particular rules exist at
all. Disputes of this kind reflect neither simple variances in perception, with one observer identifying a conventionally followed rule of
practice that another fails to see, nor mere aesthetic preferences.
Rather, the root disagreements lie in divergent understandings of the
nature of the practice, and those divergent understandings themselves
can be traced to politically based differences about the ends that the
practice ought to serve. 2 17 The upshot is the same as in disputes
about the application of contested norms. In a controversy about
whether some asserted rule or standard exists, the only telling argument often will be that one or another position depicts our constitu2 18
tional practice in a more normatively attractive way.
Although much of the debate about the nature of our constitutional
practice must be normative, the normative arguments are neither
unbounded nor unfamiliar. A practice such as constitutional interpretation functions in the context of a particular society, which has
characteristic expectations, needs, and values. Interpretations of the
rules prevailing within the practice can therefore be judged at least
partly by their conformity or nonconformity with the values of the
2 19
community, the form of life, in which the practice is situated.
216 Cf. S. HAMPSHIRE, THOUGHT AND ACTION 230-31 (new ed. 1982) (stating that the
dispute about the meaning of essentially contested concepts involves assessment of the concepts'
relationships in a network of moral, aesthetic, and political values); Fallon, To Each According
to His Ability, From None According to His Race: The Concept of Merit in the Law of
Antidiscrimination, 60 B.U.L. REv. 815, 821-31 (ig8o) (same). For discussion of the term
"constitutional community," see note 297 below.
217 See R. DWORKIN, supra note ii,
at 45-113.
218 See Simon, The Authority of the Constitution and Its Meaning: A Preface to a Theory
of ConstitutionalInterpretation,58 S. CAL. L. REv. 603, 613-14 (i985).
219 See Rawls, supra note 2oo, at 27-28. This point needs qualification. Although I have
suggested that criteria of evaluation emerge from societal values and needs, it is a mistake to
assume either that societal values can be identified other than through an interpretive process
1237
1987]
Thus, while much of my argument in the following sections has a

normative dimension, my ultimate claims are not purely normative,
but interpretive. I neither mistake what is for what ought to be nor
what ought to be for what is. My account of what is reflects, in part,
my effort to understand our practice, with all its peculiarities and
deficiencies, in what I take to be the most favorable light. But that
is very different from saying that our practice as I depict it is the
practice that I would design.
I also should be clear, however, that an interpretive theory does
have normative significance of a kind. An interpretive theory is a
theory about what makes constitutional arguments and interpretations
valid within our constitutional practice. Arguments about the nature
of the practice thus have implications for what people ought to do if
they wish to develop arguments and interpretations that are compelling in light of the practice's implicit norms. It is one thing to justify
a practice -
to defend its norms and standards -
and quite another
to justify an argument within the practice. As to the latter, appeals

to the practice's normative structure provide wholly adequate justifi220
cations.
IV. CONSTRUCTIVIST COHERENCE THEORY
In this Part I offer a solution to the problem of the commensurability of different kinds of constitutional argument. That solution
emerges from an interpretive theory of our constitutional practice that
I call a constructivist coherence theory. Although this Part provides
a full introductory statement of constructivist coherence theory, the
discussion is frequently abstract and summary. Subsequent Parts will
further demonstrate the validity of the empirical assumptions on which
constructivist coherence theory depends, more fully establish its workability, and show its normative and descriptive power. The burden
of this Part is to frame the theory as a whole and thereby to establish
the structure against which more detailed argumentation can occur in
Parts V and VI.
or that society can be viewed as wholly independent of law in order to determine what form of
constitutional practice will best serve society. The reason is that our constitutional law and
interpretive practice are partly constitutive of society, just as, on the other hand, they are partly
Change in our constitutional practice will change society, leaving it
constituted by society.
differently constituted. Thus, society cannot be viewed as an absolute constant, external to

constitutional law, that either requires or uniquely legitimates a particular interpretation or
interpretive practice.
See Frug, The Ideology of Bureaucracy in American Law, 97 HARv. L.
REV. 1276, I288-89 (1984). At the same time, however, the artificial division of law and society
can be justified by its usefulness in helping us to reason about and improve our law and legal
practice.
220 See S. CAVELL, MUST WE MEAN WHAT WE SAY? 24-30 (1969); Rawls, supra note 200,
at 4, 26-27, 29-30, 32.
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A. Empirical Foundations
In developing a theory of how the different kinds of constitutional
argument fit together in our practice of constitutional interpretation,
I begin with three reference points, all of which possess relatively firm
empirical foundations. First, all of the five kinds of argument discussed in Part II have an accepted place in constitutional argument.
Any theory that denied the legitimacy of one or more of them would
mischaracterize our constitutional practice.
Second, although the categories of argument are sufficiently independent to merit separate exposition, there are numerous interconnections among them. Perhaps most importantly, arguments of value
infuse arguments and influence conclusions within other categories.
For example, arguments from text at least sometimes involve essentially contested concepts, the meanings of which cannot be specified
independently of moral and political assumptions 22 1 and, if a challenge
is mounted, of moral and political argument. More commonly, arguments within the categories of the framers' intent, constitutional
theory, and precedent presuppose a theory of the meaning of the
pertinent legal materials that will necessarily reflect value judgments
222
or value-influenced choices.
Other conceptual interrelationships among the categories are also
important. For example, arguments from text cannot be held rigidly
separate from arguments based on precedent; the range of plausible
and permissible legal constructions of a word, phrase, or provision is
affected, at least at the margins, by prior judicial decisions interpreting
the relevant language. An example comes from due process jurisprudence. Although a linguistically plausible argument from text holds
that "'substantive due process' is a contradiction in terms - sort of
like 'green pastel redness,' '223 a number of respected Supreme Court
decisions reject this position. 224 Although these cases may rely on
implicit or explicit assumptions about the framers' intent, the existence
of the precedents themselves is independently relevant to the question
of whether "substantive due process" methodology is appropriate in
future cases. 225 Another instance of interrelationship among the categories involves the dependence of arguments of constitutional theory
on constructions of constitutional text. Because constitutional theory
221
222
223
224
225
See supra notes 72-81 and accompanying text.

See supra notes 64-66, 82-85 and accompanying text.
J. ELY, supra note 6, at 18 (footnote omitted).
See infra note 254 and accompanying text.
If nothing else, as the weight of precedent increases, it becomes possible to demand
increasingly persuasive evidence of the framers' contrary intent before that factor will be allowed
to prevail against other kinds of argument. For a discussion of the relative authority of the
framers' intent in comparison with other kinds of arguments, see pages 1243-46, 1254-58 below.
1987]
1239
presupposes an interpretation of textual language, and because opentextured language invites construction to accord with theory, blurring
occurs in some cases between the two categories.
In addition to the necessary connections between the various categories of constitutional argument, the potential for further interdependence arises from the incommensurability of competing arguments
within certain of the categories. Incommensurability obtains when
there are competing conceptions of what the arguments within a
particular category properly refer to. 2 2 6 One example emerges from
the category of arguments from text and the competition between the
original understanding and contemporary meaning. Another, within
the category of the framers' intent, involves the opposing claims of
specific and of abstract intent. As I have argued before, no standard
that is purely internal to those categories can be applied to choose,
on a case-by-case basis, between arguments that depend on competing
conceptions of what the categories are or ought to be about. 2 27 The
requisite choices could be made, however, by reference to other categories of argument. It would be a plausible selection principle to
prefer, in any particular case, the conception of arguments from text
or the framers' intent that would cohere best with the result prescribed
by arguments in other categories. A similar criterion of choice could
be used when the arguments within a category, though commensurable, are indeterminate - when they are in near equipoise or otherwise susceptible of rethinking and adjustment.
My third empirical reference point involves the striking extent to
which judges, lawyers, and other constitutional interpreters find the
various factors of constitutional argument to accord, or at least to be
consistent with their prescription of, a single result. 2 28 Only very
rarely do legal arguments - including those of judicial, and in particular Supreme Court opinions - find the best arguments within
different categories to point in divergent directions. It is possible, of
course, that the coherence exhibited by legal briefs, judicial opinions,
and scholarly articles evidences nothing more than an argumentative
226"Incommensurability," which implies that claims made against one background of assumptions cannot be translated without loss into the argumentative framework structured by a
different set of assumptions and beliefs, is not the same thing as "incomparability." See R.
BERNSTEIN, BEYOND OBJECTIVISM AND RELATIVISM: SCIENCE, HERMENEUTICS, AND PRAXIS
82 (1983); Cornell, Taking Hegel Seriously: Reflections on Beyond Objectivism and Relativism,
7 CARDOZO L. REv. 139, 152-6o (1985). Even though the claims about the original understanding may be incommensurable with claims about current meaning, the two conceptions can be
usefully and rationally compared and a judgment made to prefer one or the other. Indeed,
constructivist coherence theory is in part a theory of how such competing conceptions within
the categories of constitutional argument are and ought to be compared for purposes of choice
in a particular case.
227See supra p. 1215.
226 See supra p. 1193.
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tactic that conceals the advocate's deep understanding of our constitutional practice. This is an issue to which I shall return. 229 For
now, however, the almost total lack of dissonance generally acknowledged among the various types of constitutional argument is all that
I mean to insist upon.
B. The Coherence Thesis
The striking degree of coherence of arguments exhibited in the
typical constitutional argument, in conjunction with the interconnectedness of the various relevant factors, suggests the principal hypothesis
that constructivist coherence theory embodies. The implicit norms of
our practice of constitutional interpretation prescribe an effort to
achieve plausible understandings of arguments from text, the framers'
intent, constitutional theory, precedent, and relevant values, all of
which point to the same result. A provisional conclusion may be
reached as to the balance of argument within each factor; perhaps
more commonly, the decisionmaking process will have a gestalt-like
quality, in which each category is considered with all of the others in
mind. But if the conclusions fail to cohere into a uniform prescription
for how the case or issue ought to be resolved, then any or all of the
individual conclusions may be reexamined, and the results adjusted
insofar as plausible within the prevailing conventions of constitutional
230
analysis, in an effort to achieve a uniform outcome.
229 See infra pp. 1248-49.
230Constructivist coherence theory is thus a "coherence theory" with a "constructivist" aspect.

It is a coherence theory, because it depicts our constitutional practice as implicitly prescribing,
whenever possible, the attainment of coherence among the result indicated by different kinds of
constitutional argument. There is an analogy, though not an identity, between the theory's
approach to constitutional interpretation and the methodology of well-known "coherence theories"
of moral and political philosophy. In moral and political philosophy, the animating assumption
of coherence theories is that conduct is appropriately guided by general principles, but that the
principles by which conduct should be guided are "those that summarize and are supported by
the specific moral judgements" or intuitions "in which we have the most confidence." Feinberg,
Justice, Fairnessand Rationality, 81 YALE L.J. 1004, 1019 (1972).
The methodology therefore
calls for a two-way traffic of adjustment and correction between intuitive judgments about what
is right in particular cases, and the moral principles that define what is right in general. When
a general principle and a moral intuition collide, some correction is needed in either the principle
or the particularistic judgment. Yet one cannot specify a priori in which the adjustment ought
to occur. All that the methodology prescribes is that coherence should be sought either by
reformulating the governing principle or by revising the judgment about what is right in the
particular case. See R. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 37, at 159-68;
Feinberg, supra, at 1oxS-21. John Rawls's concept of "reflective equilibrium," J. RAWLS, A
THEORY OF JUSTICE 20-22, 48-53 (1971), calls for a process of adjustment and correction to
achieve coherence that establishes his as a coherence theory. See R. DWORKIN, TAKING RIGHTS
SERIOUSLY, supra note 37, at 159-68; Feinberg, supra, at ioi8-2i. But the coherence approach
has intellectual antecedents running back to Aristotle. See S. HAMPSHIRE, TWO THEORIES OF
MORALITY 6-28 (1977).
In common with coherence theories of moral and political philosophy, constructivist coherence
1987]
1241
The patterns of influence and adjustment that commonly make

coherence attainable take at least three forms. First, after attending
to the arguments offered within other categories, a constitutional interpreter may simply change her mind about the force of arguments
within a particular category. It is easy to imagine this result within
the category of arguments from text, where purposive arguments of
constitutional theory might persuade someone that the text will bear
an interpretation that she might otherwise have thought untenable.
Fourth amendment law supplies an example: arguments of constitutional theory might be required to render plausible the conclusion2 31that
of
the "bugging" of a telephone constitutes a "search" or "seizure"
also
might
Arguments
of
precedent
the sort the Constitution forbids.
convince someone that linguistic intuitions about the meanings of
constitutional words and phrases can reasonably be adjusted or expanded in a legal context. The most familiar example comes from
"substantive due process" law. 2 3 2 Another emerges from contracts
clause jurisprudence, in which settled judicial precedents have held
state legislation altering contract rights and remedies not to offend the
233
textual prohibition against "impairing" the obligation of contracts.
Analogous results can occur within other categories. Close attention to the rationales underlying precedents might persuade a constitutional interpreter to change her view about what were the most
persuasive value arguments. Or, perhaps more commonly, self-con-
theory assumes a decision calculus that assesses the rightness or wrongness of possible conclusions
along more than one dimension. As a further point of analogy, constructivist coherence theory
assumes that the various relevant factors of argument are internally related in a way that
frequently makes it possible, through adjustment and accommodation, to achieve coherence or
accord. But constructivist coherence theory is a theory of legal practice and decisionmaking,
not of pure moral and political decisionmaking. As a result, constructivist coherence theory
departs sharply from moral and political coherence theories in its characterization of the kinds
of factors among which coherence should be sought.
Constructivist coherence theory is also "constructivist" in a dual sense. First, it assumes that
conclusions about what are the best arguments reflect standards that are internal to the practice
of constitutional interpretation - and in that sense are human constructs - rather than
standards that are dictated by some external and objective reality to which legal argument and
conclusions should strive to correspond. There is thus some similarity between its assumptions
and those of philosophical theories, frequently described as "constructivist," that characterize
our entire understanding of the social and even the physical universes as being socially constructed rather than as either mirroring or being determined by nature. See, e.g., T. KUHN,
THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (2d ed. 197o); R. RORTY, PHILOSOPHY AND THE
MIRROR OF NATURE (1979); THE INVENTED REALITY (P. Watzlawick ed. 1984). Second, the
coherence achieved in any particular case may be more or less purposively "constructed" in a
situation in which dissonant conclusions concerning what are the best arguments within particular categories might initially have appeared natural or correct.
231 See Katz v. United States, 389 U.S. 347, 35o-53 (1967).
2-3 See, e.g., Home Bldg. & Loan Ass'n v. Blasdell, 290 U.S. 398 (1934); Epstein, Toward
a Revitalization of the Contract Clause, 51 U. CHI. L. REv. 703 (1984).
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scious attention to the moral and political values at stake in the

resolution of a particular case might convince someone that the precedents not only could but ought to be read differently than she had
read them initially. This conclusion is inescapable once it is accepted
that judgments about the meaning of precedent characteristically depend on value-laden efforts to theorize about what a line of cases
establishes. 234 If interpretations of precedent are infused by values,
it is by no means implausible that self-conscious attention to values
in the category of value arguments could trigger an important adjustment in the category of arguments from precedent.
Second, a constitutional interpreter can reconsider, or alter any
preconception about, the preferred conception of arguments from text
or from the framers' intent - about whether the original understanding or contemporary meaning, or the framers' specific or general intent, ought to control. Adjustments of this kind can prove especially
important if an interpreter believes, as well she might, that a particular conception ought to be preferred in the absence of strong countervailing reasons. Within the category of arguments from text, for
example, someone might take the position that arguments based on
"lawyers' meanings," derived from precedent but deviant from ordinary language, generally should be disfavored. 2 35 Nonetheless, she
might be prepared to accept such a conception if the supporting
arguments issuing from other categories were sufficiently strong. An
interpreter might similarly believe that the framers' specific intent
should generally be held controlling over their general intent, but
again acknowledge that this priority should not be absolute.
Finally, if, after a process of reconsideration, arguments from all
the categories but one pointed to the same result, a constitutional
interpreter might be persuaded that the arguments within that category were too uncertain or indeterminate for a conclusion to be maintained with sufficient confidence to weigh tellingly against the countervailing considerations. The category of the framers' intent affords
an example. Although the evidence may be mixed, fragmented, or
nearly in equipoise, a legal historian could still offer the theory or
conclusion that she regarded as most likely to be correct. But if her
degree of confidence were relatively low, she might conclude that her
historical judgment ought not to count for much in the calculus of
constitutional decisionmaking. Even if she could not clearly see her
way to reaching a different historical assessment, she might be shaken
by the appearance that contemporary morality diverged too sharply
from that of the framers, or that prior judicial decisions had seemingly
misunderstood the framers' intent, in a way for which she could not
easily account.
234
235
See supra pp. 1202-04.

See infra notes 256-57 and accompanying text.
19871
1243
With this third possibility for adjustment and accommodation,

constructivist coherence theory incorporates an element that is reminiscent of a balancing approach. It makes the weight of a category
of argument depend partly on the power or determinacy of the most
convincing argument within that category. But there also are important differences. In contrast with balancing, constructivist coherence
theory emphasizes the interdependence of the categories of argument.
Moreover, once an argument within a category attains a sufficient
degree of determinacy, constructivist coherence theory views the implicit norms of our constitutional practice as requiring a hierarchical
ranking of the categories, rather than balancing, in cases in which
constructivist coherence cannot be reached.
C. The Hierarchy of Argument
Although the implicit norms of our constitutional practice suggest
that constructivist coherence should always be sought, it may not
always prove attainable. The cost, in the sense of sacrificing more
plausible for less plausible conclusions concerning the meaning of
textual language, the intent of the framers, or some other factor, may
be too great. As I shall argue later, there are and ought to be limits
to the extent to which provisional conclusions can be adjusted to
accommodate arguments in other categories. Integrity is itself an
important value in constitutional law. Nor should every possible basis
for accommodation be accepted. For example, a constitutional interpreter should not, for the sake of achieving coherence in one case,
accept an argument of the framers' specific intent or of constitutional
theory that she would be unwilling to embrace in another case. Situations thus will arise in which constructivist coherence cannot or
ought not to be achieved. Some further principles must therefore be
established to solve the problem of how the various types of argument
are combined or weighed against each other. In attempting to develop
the normatively best understanding that is reasonably consistent with
what actually happens in our practice of constitutional interpretation,
I seek to reflect conventional understanding in assigning to the categories of argument a hierarchical ordering.
I do so with some tentativeness, however, because of the relative
uncertainty of the foundations on which I build. Although my aspiration is to identify the implicit commitments of our practice rather
than merely to prescribe them, the evidence is relatively sparse, in
large part because there are so few cases in which the Supreme Court
has ever characterized different types of constitutional argument as
pointing to incompatible results. Accordingly, I have to rely largely
on dicta and on what I take to be widely shared, if frequently unarticulated, understandings. The normative arguments supporting my
interpretation are also contestable. Thus, although I offer a justifi-
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cation for my ranking of the factors - in telescoped fashion here and

in somewhat greater detail in Part V - what perhaps most needs to
be emphasized is that the commensurability problem needs an answer
and that an interpretive methodology that blends descriptive with
normative arguments is the right sort of methodology to pursue. My
interpretive account of the hierarchical ranking of factors is as follows:
i. Arguments from text. - Where compelling arguments from text
unambiguously require a conclusion, the text must be held dispositive.
This ranking of textual arguments follows from the settled proposition
that it is the Constitution we are interpreting. 236 An "interpretation"
that is unsupportable by the text, as measured by conventional norms,
is not constitutional interpretation as our tradition knows it. 23 7 But
while arguments from text occupy the topmost rung of the theoretical
hierarchy, it seldom occurs that purely textual arguments unambiguously require a result contrary to that indicated by several other
factors. 2 38 Contributing to this situation are the open-textured character of many constitutional provisions and the distinction between
239
original understanding and contemporary meaning.
2. Arguments of historical intent. Where arguments from text
leave open a range of possible interpretations, the intent of the framers
occupies the second slot in the hierarchy. This ascription of relative
authority again tracks conventional practice. I know of no constitutional case in which the Supreme Court has held that, although the
framers' intent would require one result, another must be upheld on
240
some other ground.
Although judicial authority affords a sufficient basis for assigning
arguments from the framers' intent the second level of hierarchical
priority, the significance of this ranking should not be overstated.
236 Cf. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819) (Marshall, C.J.) (stating
that "we must never forget, that it is a constitution we are expounding" (emphasis in original)).
237 See Grey, Origins of the Unwritten Constitution: FundamentalLaw in American Revolutionary Thought, 30 STAN. L. REv. 843, 844 (1978).
238 Arguments from text may, of course, exclude some meanings without conclusively resolving which among the plausible meanings ought to be preferred.
239 There are some situations in which an argument from text might in fact be dispositive.
See, e.g., infra pp. 1283-85 (discussing the constitutionality of slavery under the Constitution
as it existed prior to the Civil War amendments).

240 "Reliance upon original intent occurs even in opinions where actual holdings seem wholly
at variance with original intent." Monaghan, supra note 30, at 375 n.132. Monaghan cites
several examples. See, e.g., Williams v. Florida, 399 U.S. 78, 92-100 (1970) (asserting that
"history" shows the jury trial provision was to be understood functionally and therefore twelve
jurors, the historical number, are not required); Bell v. Maryland, 378 U.S. 226, 288-312 (1964)
(Goldberg, J., concurring) (arguing in purported reliance on original intent that the fourteenth
amendment prohibits privately owned restaurants from discriminating on grounds of race); cf.
Brest, supra note 18, at 234-35 ("Although the Supreme Court has often disavowed strict
originalism and acknowledged its moderate originalist stance, it has not usually admitted that
some of its decisions go still further." (footnotes omitted)).
1987]
1245
Within the practice of constitutional interpretation, historical intent

may be fixed at highly varied levels of abstraction. The upshot is a
large potential for accommodation within the category of the framers'
intent to achieve coherence with other factors. This possibility for
adjustment must be acknowledged as inhering in accepted due processs, equal protection, and first, fourth, and eighth amendment ju24 1
risprudence.
3. Arguments of theory. - Where text and historical intent are
both uncertain, constitutional theory occupies the third tier of authority. This ranking reflects the extent to which constitutional theory,
because of its relatively close conceptual link to the constitutional text,
derives a strong claim of place from the written Constitution itself.
But it is a complicated question how far arguments of theory are
likely to assert an independently controlling influence because of the
important extent to which arguments of constitutional theory are
value-infused.
242
4. Arguments from precedent. - Although constitutional arguments sometimes turn almost completely on disputed interpretations
of judicial precedents, the principle is clear that stare decisis is entitled
to less weight in constitutional than in nonconstitutional cases, 24 3 and
the Supreme Court stands ready to "correct its errors even though of
long standing. '244 Precedent therefore occupies the fourth place in the
hierarchical order. This status could easily prove misleading, however, and thus requires two short comments. First, because arguments
in the categories ranked above precedent often prove indeterminate
in hard cases, it would be a mistake to think the significance of
precedent will be only marginal. On the contrary, its ranking is
wholly consistent with the observation that as the text "gets older and
interpretive materials accumulate, the focus of professional and judicial opinion shifts from .
. the text and history to judicial prece-
dents. '245 Yet, the reading of precedent is itself, as we have seen, an

exercise that is importantly value-infused.246 The decision about what
the precedents "stand for" or "establish" thus will frequently depend
on the values that the reader brings with her to the interpretive
enterprise.
5. Arguments of value. - Fifth on the list - and thus independently controlling only when text, history, theory, and precedent all
241 See Grey, supra note i8, at 710-13 (arguing that modern jurisprudence under these
clauses could not be justified under a pure "interpretive" methodology that required fidelity to
the framers' specific intent).
243 See, e.g., United States v. Scott, 437 U.S. 82, 101 (1978); Burnet v. Colorado Oil & Gas
Co., 285 U.S. 393, 4o6-o8 (1932) (Brandeis, J., dissenting).

244 United States v. Barnett, 376 U.S. 681, 699 (1964).
245 Jones, supra note 18, at i.
246 See supra pp. 1202-04.
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are indeterminate - are arguments of value. But this ranking easily

conduces to underestimation of the potential power of value arguments, the potency of which lies in their capacity to assert influence
within successful efforts to achieve coherence.
D. Constructivist Coherence Methodology and the Hierarchy
Although the hierarchy of argumentative factors represents a constituent element of constructivist coherence theory, the role of the
hierarchy is secondary to the aspiration to achieve coherence. Just as
judges and justices only rarely identify disparity among the conclusions prescribed by different factors, constructivist coherence theory
interprets our constitutional practice as assuming that all the relevant
types of argument should ideally be entitled to influence in every
constitutional dispute. It is, to repeat, the rare case in which coherence proves unattainable and the hierarchy governs.
Equally important, the hierarchy neither entails nor implies that,
in an effort to get coherence, the higher ranked categories represent
preferred starting points, such that the initial attempt should be to
bring other factors into accord with them. It is precisely the indeterminacy of the higher ranked categories of argument that makes the
pursuit of constructivist coherence a plausible strategy. Nor does
constructivist coherence theory, which rejects interpretivism on normative grounds, demand that arguments from text and from the
framers' intent exert as much influence in every case as their natures
would permit. The processes of reciprocal influence and accommodation reach across all categories. The interpreter can consider and
reconsider each of the categories with all of the others in mind.
But while constructivist coherence theory does not require that
any category provide a tentative foothold in the effort to achieve
coherence, it is a separate question whether it is wrong or mistaken
for an individual interpreter to allow the search for constructivist
coherence to depart more from the tentative judgment in one category
than it does from those in others. The answer further reveals how
subordinate in constructivist coherence theory - as in the practice
that the theory describes - the hierarchy of arguments frequently
proves. Constructivist coherence methodology permits, although it
does not require, value arguments to function as principal engines in
the effort to reach coherence. Although possibly somewhat counterintuitive, especially in light of low priority given to value arguments
in the hierarchy, their potential force must be acknowledged if we are
to account for the kinds of disagreements that are familiar in constitutional law. We take it for granted now that there are judicial liberals
and conservatives, who predictably disagree not only about specifically
"political" judgments but also about the framers' intent and the meaning of prior cases. Why do Justice Brennan and Chief Justice Rehn-
19871
1247
quist - to take two prominent examples - disagree so systematically

and predictably about matters that appear on the surface to have so
little to do with politics? The inescapable answer is that moral and
political values importantly influence the perception of arguments
within the other categories.
There are several reasons why value arguments can be, and frequently are, especially influential within the constructivist coherence
framework. One is simply psychological. In a situation that exhibits
divergence among the results indicated by the different factors, commitment to the moral and political justice of an outcome is likely to
supply a singularly powerful motive for determining what to treat as
provisionally fixed in the, search for constructivist coherence. This
need not always be so. Nor will the effort to reach coherence always
succeed. Sometimes judgments within other categories will be relatively resistant to the arguments of value that an interpreter thinks
strongest.247 But it is a fair assumption that judges and other constitutional interpreters will be disposed to seek a construction of legal
materials that permits the result they believe to be morally and politically most desirable.
In addition, arguments within other categories are probably more
likely than are value arguments to seem indeterminate or adjustable
in hard cases. Again, this claim is not absolute. Sometimes value
arguments may themselves be uncertain or indeterminate. Assessments will vary from lawyer to lawyer, judge to judge, justice to
justice. On the Supreme Court, for example, some of the more ideological Justices - Brennan on the "left," Rehnquist on the "right" appear to have relatively firm and consistent moral and political
views. In contrast, some of the "swing" Justices seem more uncertain,
conflicted, and open to persuasion in the context of particular disputes.
On the whole, however, conclusions about the balance of value arguments probably tend to be more resistant to adjustment than conclusions within other categories. Finally, as I have argued already,
value arguments infuse other categories of argument. For this reason,
value arguments can function as an especially powerful lever for the
attainment of coherence once the interdependence of the categories is
recognized.
But the influence of value arguments, though potentially strong,
is far from sovereign. The size of the range of plausible conclusions
that could be reached with respect to any particular factor in any
particular case is, of course, a difficult and controverted question.
Yet the presupposition of constructivist coherence theory is that constitutional interpretation is a practice whose implicit norms and conventions establish meaningful boundaries for the conscientious consti-
247 See
sources cited supra note 193.
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tutional interpreter. Judges and even Supreme Court justices can

intelligibly be said to have violated the practice's implicit rules when
they fail to preserve the intellectual integrity of constitutional argument - when, for example, they willfully distort history or misrepresent the holdings of prior cases in arguing that the framers' intent
248
or precedent supports an outcome they prefer.
E. In Defense of Constructivist Coherence Theory
A constructivist coherence theory explains, better than any rival
approach, how the commensurability problem gets resolved within
our practice of constitutional interpretation. In particular, the constructivist coherence hypothesis accounts for three empirical phenomena that, in conjunction, confound the descriptive pretensions of other
theories: there are five types of constitutional argument with an accepted place in our interpretive practice; the different types of argument, though independent enough to have separate identities, are
nonetheless substantially interrelated; and virtually never do judicial
opinions, briefs, or even scholarly articles acknowledge a disparity
among the conclusions to which the different kinds of arguments
point.
Normatively, the principal virtue of constructivist coherence resides in its capacity to accomodate reasonably and intelligibly the
independently valid claims to interpretive authority of a diverse variety of factors. A full defense must await Part V of this essay. But
to put the matter somewhat summarily, constructivist coherence theory is catholic and accommodationist, and it draws its normative
strength from the values that call for recognizing a role for each of
the relevant factors.
Nevertheless, several important objections to a constructivist coherence approach to the commensurability problem ought to be anticipated. Some address the contructivist coherence thesis in its descriptive aspect. Others are normative.
Against my descriptive claims, the objection may be urged that I
have relied far too heavily on the rarity of acknowledgments that
different factors call for different conclusions to the same constitutional
question. On this view, there is almost certainly a sharp disjunction
between the rhetoric of constitutional argument and the more fundamental aspects of interpretive practice. It may be true that lawyers
and judges seldom acknowledge that any relevant factor is incompatible with their position. But, the argument would continue, lawyers
and judges argue as they do only because considerations of effective
advocacy counsel against argumentative concessions. However lawyers and judges may talk, no sophisticated observer would think that
248
See Shapiro, supra note 59, at 734.
1987]
1249
the norms of our constitutional practice require judges to attempt to

achieve "real," as opposed to "rhetorical," coherence.
Although this objection is not wholly implausible, the testing question for the challenger is why judges would adopt a rhetorical style
that diverged so sharply from their conception of our constitutional
practice's norms. It is by no means obvious that a sound rhetorical
strategy would counsel attempting to defend indefensible or even implausible claims. On the contrary, credibility might well be gained
by a careful and balanced assessment of the force of all the arguments
within all of the categories prior to the pronouncement of a judgment.
If judges and lawyers regularly argue as if all of the relevant factors
either support or at least accord with their conclusions, the inference
is nearly inescapable: they believe that the implicit norms of our
constitutional practice make it necessary or appropriate for them to
24 9
do so if the results that they reach are to be justified.
At this point, however, the descriptive challenge may yield to a
normative one. In asking judges and lawyers to assess and reassess
arguments with an aspiration to achieve coherence in favor of a single
result, constructivist coherence theory, it might be argued, offers a
plain invitation to intellectual dishonesty and deceit. Having once
faced honestly the question of what are the more compelling arguments within each of the categories, constitutional lawyers, in cases
of dissonance, are then called upon to manipulate one or more of their
findings. Surely, the objection would run, any normatively decent
theory ought to demand more integrity.
Although this objection may look forceful, it rests on two fallacious
assumptions. The first involves what constructivist coherence theory
itself prescribes. Far from counseling deceit or dishonesty, constructivist coherence theory is compatible with, and indeed urges, the
utmost candor. Where, for example, value arguments play a crucial
role in influencing judgments within other categories, that role ought
to be made explicit and the operative value choices defended publicly.
Where a judge makes a contestable choice, she ought to explain how
and why the choice was made, rather than enact a formalist charade.
The second fallacious assumption is more fundamental. This assumption, which is implicit in the charge that constructivist coherence
theory invites manipulation, holds that there is, apart from the norms
and methods of our constitutional practice, some independently and
antecedently correct answer to such questions as "What is the most
persuasive argument from text?" and "What is the best specification
of the intent of the framers?" Only if there were a "right" answer to
249 See Grey, supra note 18, at 706 ("[I]f judges resort to bad interpretation in reference to
honest exposition of deeply held but unwritten ideals, it must be because they perceive the latter
mode of decisionmaking to be of suspect legitimacy.").
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those questions would a decision to select some other conclusion count

as manipulation of the relevant facts or arguments. In fact, however,
choices frequently need to be made in cases in which the various
categories of constitutional argument not only yield no agreed-upon
answers, but also offer no widely shared criteria by which correct
answers could be identified. In this context, the objection that constructivist coherence theory counsels "manipulation," unless it can
specify persuasive and attractive criteria by which "correct" answers
are and ought to be identified, is itself question begging. It is precisely
the question of how we do and ought to identify the "correct" answer
- which conception of arguments from text and the framers' intent,
which constitutional theory, what interpretation of the precedents,
and so forth - that has not yet been answered adequately.
The same point might be reformulated in terms of the epistemological significance of the norms of our interpretive practice. The
"meaning" of constitutional language, the "intent of the framers," and
the "holdings" of prior cases all are concepts that get their meaning
for constitutional argument from within our constitutional practice.
To assess arguments from the constitutional text, we need a lawyer,
not a linguist. To discover the framers' intent, the services of an
historian could surely be helpful. But judgments about the relevance
to constitutional law of various facts about what the framers said and
believed are legal judgments, not historical ones. Arguments of precedent are similar in this respect. What a precedent establishes is a
question that is internal, not external, to the practice of constitutional
interpretation.
This being so, the objection that I have been discussing, if it is to
be made powerful, must be much more purely normative than it is
interpretive: it must be an argument that the kinds of incommensurability and indeterminacy that make the adjustment of conclusions
possible within our current practice clearly establish that the practice
has lost all integrity and ought to be thoroughly reformed. So framed,
the objection would be difficult to respond to, since the crucial question has not been answered: What direction ought the reforms to
take? 25 0 But the objection can also be met directly. By accommodating the claims to interpretive authority of five factors of normative
relevance, constructivist coherence theory respects the values underlying all of them. Admittedly, the theory attempts to mediate a series
of tensions that border on contradiction. For example, the normative
arguments for reliance on arguments of value assert the need to adapt
the Constitution to modern exigencies and moral sensibilities. On the
other hand, claims to respect the framers' intent appeal to the ideal
that our constitutional law should maintain continuity with the past.
250 But
cf. supra note 189 (discussing Bruce Ackerman's Storrs Lectures).
19871
1251
The effort at accommodation is therefore an inherently precarious one,

which situates the interpreter with one foot on each of two slippery
slopes - one leading to originalism, the other to a practice dominated
by contests of moral and political value. If the perch can be maintained, however, this is exactly where we should understand our
interpretive practice as being located.
Too rigid a commitment to a narrow conception of the original
understanding and the framers' intent could ossify the Constitution,
deprive it of the contemporary moral vitality that has made it the

symbolic embodiment of a national commitment not only to stability
but also to justice. On the other hand, morality itself is deeply
controversial, and to release constitutional interpretation from all obligation to historic understandings would invite the disintegration of
much of what is best in our political tradition. The question is not
whether a balance should be sought but how successfully it can be
25 1
achieved.
251 An additional objection to a constructivist coherence approach to the commensurability
problem might be that according primacy to the search for coherence on a case-by-case basis
too readily accepts a general pattern of intellectual incoherence in our constitutional law. There
are two elements to this concern. One involves inconsistent choices between competing conceptions of what arguments within a particular category ought to appeal to: original meaning or
contemporary meaning, specific intent or abstract intent. Constructivist coherence theory undoubtedly accepts disparities between the conceptions that are and ought to be appealed to in
particular cases. But the resulting pattern is not necessarily incoherent, because good reasons
often can be given for the choices made in particular cases. The pattern will look incoherent
only to someone who starts with the fallacious assumption that the only good reason for choosing
one or another conception must be internal to the category of argument in which the choice
occurs. See supra p. 1215 (showing that standards for choice cannot be internal to categories
of arguments from text and framers' intent).
The second concern involves the appropriate criteria for making choices among competing
arguments in cases in which there is no need to select between opposing conceptions of what
the category of argument properly refers to. The dispute is about which, among two or more
wholly commensurable arguments, is the best. Examples occur within the categories of arguments of constitutional theory and of precedent. Surely contradiction and confusion would
proliferate if the Supreme Court were to adopt whichever argument of constitutional theory best
supported its conclusion in a particular case, without attending to the integrity of its own
arguments and to the intellectual consistency of the general body of constitutional law. But this
is not what constructivist coherence theory prescribes. An argument should not be accepted
unless it is the conscientious decision of the constitutional interpreter that that argument is, all
things considered, the best within its category. A judgment about which is the best argument
of constitutional theory is appropriately affected by the implications of different theories for the
particular case at hand, about how well different theories fit with precedent, and so forth. But
constructivist coherence theory calls for judges to reach judgments about which arguments are
really the best within particular categories, rather than to endorse weak or implausible arguments
merely in order to achieve coherence. Similarly, in the search for coherence, a conscientious
constitutional interpreter should not subscribe to arguments or interpretations that she would
not also be prepared to accept in future cases. The prescription, here as always, is for candor
and integrity. And while constructivist coherence theory trades on the notion that some adjustments are achievable because of the epistemological significance of the norms of our constitutional practice, other adjustments and conclusions just as clearly are not permissible.
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V. CONSTRUCTIVIST COHERENCE METHODOLOGY AND THE FIVE

CATEGORIES OF ARGUMENT
This Part undertakes to show in greater detail how the five categories of constitutional argument lend themselves to the kinds of
accommodation prescribed by constructivist coherence theory. To accomplish this end, the categories are discussed in turn. With respect
to each, I argue that the initial balance of arguments within the
category - if the categories were conceived as sharply independent
from one another - would be likely either to raise an incommensurability problem that could not be resolved without appeal to some
outside arbiter or to prove substantially indeterminate or uncertain.
With incommensurability and indeterminacy limiting the autonomy of
the individual categories, the gestalt-like quest for coherence that is
modeled by constructivist coherence theory not only becomes possible
but fulfills an important function in our constitutional practice. Although the main thread of argument addresses the workability and
the descriptive power of constructivist coherence theory, I also argue
that constructivist coherence theory characterizes our actual practice
of constitutional interpretation in the best plausible light within the
structure of social values and expectations in which our constitutional
practice is situated.
A. Arguments From Text
Three characteristics establish arguments from text as well accommodated to constructivist coherence analysis. The first involves the
rivalry within the category between the claims to authoritativeness of
the original understanding on the one hand and contemporary meaning on the other. In the context of our current practice, it is simply
impossible to maintain that original historical meanings are uniquely
relevant. Choices between
original and contemporary understandings
25 2
must therefore be made.
252 The phenomenon of change in meanings is easily documented.
See, e.g., Grey, supra
note 18, at 710-14; Munzer & Nickel, supra note 30, at 1029 n.Io. It is among the virtues of
a practice-based approach to constitutional theory that it can provide a coherent account of

how this phenomenon can occur. It is sometimes treated as a puzzle how the meaning of a
constitutional provision could change. The "original meaning," to the extent that it can be
identified, is an historical fact not subject to transformation. See Munzer & Nickel, supra note
30, at 1043-44. Moreover, philosophers of language commonly hold that the meaning of an
"utterance" is generally unalterable. See id. at 1043-44. But when constitutional interpretation
is viewed as a practice in the sense in which I have used the term, "meaning" can only refer to
meaning in the context of the interpretive practice. And within the practice, "changes of
meaning" can occur in either of two ways. First, the practice may authorize revisions of
interpretation. Second, the interpretive norms of the practice may themselves alter over time.
This is not of course to say that all changes are good, or that changes or proposed changes are
not subject to criticism. The point is only that, while it is possible to provide normative
1987]
1253
A second feature of arguments from text that suits them to constructivist coherence theory arises from the relationship between "ordinary language" on the one hand and "constitutional language" on
the other. Although constitutional discourse depends heavily on the
understandings implicit in our use of ordinary language, the meanings
of certain constitutional terms diverge significantly from the meanings
of those same terms in ordinary speech. 253 Leading examples come
from substantive due process 254 and fourth amendment jurisprudence. 255 As a result, the possibility that a constitutional term might
be either a term of art or an instance of more ordinary usage some-
times will undermine the claim to irresistable authority of arguments

from text.
The resulting possibility of accommodation and adjustment is and
ought to be viewed with caution. For the Constitution to remain a
constraint on judicial decisionmakers, suggested interpretations that
depart too far from the ordinary moral and political vocabulary of
the society have to be disfavored. 2 56 Some relatively weighty concern,
such as very strong arguments issuing from other categories, is there-
from ordinary underfore needed to justify substantial departures

2 57
standings. But disfavor is not prohibition.
The third reason that arguments from text are suitable for constructivist coherence analysis stems from the "open-textured 2 58 or
arguments for or against constituting the practice of constitutional interpretation in such a way
that meanings are susceptible to alteration, it is mistaken to urge either the descriptive claim
that the Constitution's meaning does not, or the logical claim that it cannot, alter.
253 See Schauer, supra note 17, at 799-801. This is but an instance of the more general
insight that meaning depends on context. For classic statements, see generally J. AUSTIN, How
TO Do THINGS WITH WORDS (J. Urmson & M. Sbisa 2d ed. 1975); J. AUSTIN, PHILOSOPHICAL
PAPERS (J. Urmson & E. Warnock 3d ed. 1979); L. WITTGENSTEIN, supra note 131.
254 As the Supreme Court recently recognized:
[D]espite the language of the Due Process Clauses of the Fifth and Fourteenth Amendments, which appears to focus only on the processes by which life, liberty, or property
is taken, the cases are legion in which those [cilauses have been interpreted to have
substantive content, subsuming rights that to a great extent are immune from federal or
state regulation ....
Bowers v. Hardwick, io6 S. Ct. 2841, 2844 (1986). Controversy persists less over the general
point than over the question of what rights are so protected.
255See, e.g., Katz v. United States, 389 U.S. 347, 350-53 (1967) (holding electronic eavesdropping to be a "search and seizure" within the meaning of the fourth amendment).
256 See Moore, supra note 15, at 313-38; cf. Hardwick, io6 S. Ct. at 2846 ("The Court is
most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional
law having little or no cognizable roots in the language or design of the Constitution.").
257 Cf. A. Cox, THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERNMENT 113 (1976)
(despite the linguistic oddness of finding substantive rights protected by the due process clause,
the Supreme Court's "persistent" invocation of substantive due process notions "for almost a
century attests the strength" of the natural law impulse supporting the concept, such that it
would be "unwise as well as hopeless to resist it").
25SThe idea of an "open texture!' is developed in H. HART, THE CONCEPT OF LAW 121-32
(196i).
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essentially contestable character of much constitutional language. Although even highly general constitutional provisions typically exclude
some interpretations, 25 9 constitutional language often will support or
bear more than one reading. 260 In such cases, nontextual factors may
guide selection among the plausible alternatives.
The normative support for this interpretive account of the role of
arguments from text is largely implicit in what has gone before.
Where arguments from text are indeterminate or tentatively point
toward normatively questionable results, it is desirable to give open
weight to factors with independent claims to recognition. At the same
time, however, by recognizing that arguments from text head the
hierarchy of relevant factors, constructivist coherence theory promotes
a conception of constitutional law as something distinct from, even if
properly influenced by, judicial visions of sound policy and moral
justice.
B. Arguments of Historical Intent
Two features of the concept of the framers' intent make it amenable to a constructivist coherence analysis. One involves the indeterminacy inherent in efforts to ascertain the framers' specific intent.
The other stems from the distinction between specific intent and abstract or general intent.
Although a complete defense of this claim would take me far
beyond the sensible limits of this paper, I have argued that the concept
of the framers' specific intent can function helpfully in constitutional
interpretation only if it is viewed in each case as a theoretical construct, developed through a process of interpretation, that expresses
the interpreter's conclusion concerning what set of moral and political
views best explains the adoption of a constitutional provision in light
of all the available historical evidence. 26 1 Thus defined, the notion of
specific intent lends itself to constructivist coherence analysis, because
the historical evidence frequently will be so uncertain or conflicted as
to be consistent with several interpretations. 262 This is especially
likely to be true where the framers chose vague or open-ended language or where their intent must be projected onto a situation that
the framers themselves never foresaw. Under such conditions, other
factors may either establish a preference among the contending historical conclusions or, in the alternative, provide ample reason for
259 See Schauer, supra note 17.
260 Cf. White, supra note 26, at 415 (asserting that reading a legal text is often not so much
reading for a single meaning as reading for a range of possible meanings).
261 See supra pp. 1212-13.
262 For discussion of a concrete example, see infra text accompanying notes 331-33.
1987]
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holding the framers' specific

intent too uncertain to be dispositive of
263
a constitutional question.
The second way in which historical analysis can yield to constructivist coherence methodology stems from the distinction between specific and general intent. When there is a disparity between the result
indicated by the best interpretation of specific intent on the one hand
and a more abstract conception on the other, the former need not
necessarily prevail. Instead, constructivist coherence methodology can
be deployed to help select the conception of intent that ought to be
used and, if necessary, to establish a preference among competing
2 64
specifications of abstract intent.
The normative defense of this interpretation of the role of the
framers' intent could scarcely be a simple one, for that role is transparently ambivalent in our constitutional practice. On the one hand,
as I have noted already,2 65 I know of no case in which the Supreme
Court has ever said that although the framers' intent required one
result, another conclusion should nonetheless be reached. 266 On the
other hand, the same features that accomodate the framers' intent to
constructivist coherence analysis sharply circumscribe the constraining
influence that this factor possesses. It is therefore important to reiterate that my account of the role of the framers' intent is substantially
descriptive. The limited normative aspiration is to understand our
actual practice in the best light, not to prescribe an ideal regime.
263 A related possibility for reconsideration and adjustment of conclusions about the framers'
specific intent arises from the double element of evaluation built into the concept of the "best"
political justification for a constitutional provision's being adopted in light of historically prevailing moral and political views. The notion of the best explanation partly involves the fit of
a theory with the evidence to be explained. But in cases close to equipoise, a more direct
appeal to standards of moral and political correctness should not be excluded. See supra pp.
1212-13.
264 See supra pp. 1216-17 (discussing the problem of choice among the different levels of
abstraction at which intent might be identified).
266 Indeed, I am aware of only one case, Reynolds v. Sims, 377 U.S. 533 (1964), in which
the Court failed to reject the contention of a dissenting opinion that its conclusion could not be
reconciled with the intent of the framers. But the exception only proves the rule: defenders of
the Reynolds result have generally agreed with critics that the dissenting opinion's historical
arguments required an answer. See, e.g., Van Alstyne, The Fourteenth Amendment, the "Right"
to Vote, and the Understandingof the Thirty-Ninth Congress, 1965 SuP. CT. REv. 33, 34-38.
A much more common gambit is for the Court to assert or imply that the framers, whatever
their specific intentions, would have intended the courts to adapt constitutional principles to
changing situations. See, e.g., Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 443 (1934)
(suggesting that the framers of the contract clause, as of all "the great clauses of the Constitution,"
would have contemplated adaptation to various crises, and finding "no warrant for the conclusion
that .. . the founders of our Government would have interpreted the clause differently [than
the Court had done] had they had occasion to assume that responsibility in the conditions of
the later day").
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In seeking an attractive description, however, there are good reasons to retain a role for the framers' intent. Our Constitution is not
and should not be conceived as loosed conceptually from the purposes
and intentions of those who drafted and ratified it. The claim of the
framers' intent to argumentative authority is especially strong with
recent constitutional amendments. When an amendment is newly
enacted, arguments that the value of democracy requires respect for
the intent of the framers and ratifiers are especially strong. 26 7 Even
with older provisions, however, the arguments for respecting the framers' intent never dissipate entirely. Continued acknowledgment of
this factor's authority is based on a recognition that our living Constitution is the product of a tradition in which the present cannot be
understood independently of the past. Indeed, our constitutional practice presupposes that it is only on the basis of a text produced by past
political acts of framing and ratification that a judge ever may invalidate the action of a contemporary political majority.
On the other hand, some degree of flexibility in identifying the
framers' relevant intent is as normatively desirable as it is descriptively
necessary for constructivist coherence theory to be plausible as a
theory of our actual practice. Two modern bodies of law - one
involving freedom of speech, the other concerning equal protection exemplify the moral, political, and legal intuition that the framers'
specific intent should not always be determinative. In neither area
can I claim a historian's expertise. In both, however, there are strong
arguments that our current jurisprudence has diverged very far from
the framers' specific historical intentions. 268 Consider the competing
considerations in the following two cases.
Suppose that the framers of the first amendment specifically intended "at most .
. to prohibit any system of prior restraint and to
modify the common law of seditious libel by making truth a defense

and by permitting the case to be tried to a jury."26 9 Even if we accept
this conclusion, the text of the amendment will bear and indeed
suggests far broader constructions. Powerful works of theory have
shown the benefits if not the necessity of expansive speech rights in a
democracy. 270 Strong moral arguments similarly call for wider freedom of speech. 2 71 Why, under these circumstances, should the specific
267 See generally Simon, supra note 35, at 1536-37.

268 See, e.g., Grey, supra note 18, at 710-13; M. PERRY, supra note 55 at 6i-go.
269 Perry, supra note 5, at 287 (footnotes omitted) (emphasis in original).
270 See, e.g., J. ELY, supra note 6; A. MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO
SELF-GOVERNMENT (1948).
271 See, e.g., T. EMERSON, TOwARD A GENERAL THEORY OF THE FIRST AMENDMENT 4-
7 (1966) (asserting that suppression of speech is an affront to the dignity of man in that it
frustrates attainment of individual self-fulfillment).
1987]
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intentions of persons long dead, who could have foreseen the future
only imperfectly at best, have a controlling effect? My own strong
intuitive judgment, which is entirely consistent with Supreme Court
precedent, 2 72 is that the specific intent should not be determinative.
Similar intuitions are likely to be felt in the equal protection area.
The most monumental case of the modern era, Brown v. Board of
Education,2 73 evokes an especially confident judgment: even if there
were substantial evidence that most of the framers of the fourteenth
amendment had, upon reflection, concluded that segregated schools
did not offend the equal protection clause, that judgment should not
be dispositive in light of current moral sensibilities, the law's intervening line of growth and development, and the general intent of the
framers to establish a legal regime guaranteeing to all races the equal
274
protection of the laws.
In the face of contending arguments for and against accepting the

conclusive authority of the framers' specific intent, constructivist coherence theory portrays our practice as eschewing any across-theboard resolution and opting instead for case-by-case tradeoffs. The
claims to interpretive authority of the framers' intent are never sacrificed entirely. No result may be reached that is not consistent at
least with the framers' abstract intent. But abstract intent runs along
a spectrum that extends at its furthest end to broad interpretations of
principles that the framers understood much more narrowly. Constructivist coherence theory reasonably views our practice as allowing
specifications of the framers' intent sometimes to occur at the highly
abstract end of the spectrum and thus as attempting a desirable, even
if precarious, accommodation of contending values.
In light of the precariousness of the enterprise, it would be a
mistake to claim that our constitutional practice, as portrayed by
constructivist coherence theory, could attain logical consistency. This
is a normative drawback of the theory I offer. 275 Nonetheless, by
viewing our practice as exploiting inherent indeterminacies and using
varied levels of abstraction in specifying the framers' intent, constructivist coherence theory provides a way of harmonizing our constitutional law with the perceived needs and ideals of the current gener-
272 See, e.g., Cohen v. California, 403 U.S. 15 (1971) (holding that first amendment protects
the use of a vulgar expletive in communication of political protest); West Va. State Bd. of Educ.
v. Barnette, 319 U.S. 624 (1943) (holding that the first amendment prohibits compulsion of
school children to salute the flag).
273 347 U.S. 483 (1954).
274 For a fuller discussion of Brown and the various kinds of constitutional argument as they
bore on the decision in that case, see pages 1278-82 below.
275 The inconsistency can and should stop short of incoherence or self-contradiction.
supra note 251.
See
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ation while maintaining some sense of continuity with the past. So

2 76
far as I am aware, no better alternative understanding is available.
C. Arguments of Theory
Arguments of theory lend themselves to constructivist coherence
analysis for three closely related reasons. First, whether the object of
theorization is the whole Constitution or some more limited part, the
data to be explained will be relatively sparse and any particular theory
therefore underdetermined. 2 77 As a result, provisional judgments lend
themselves to reconsideration upon examination of alternative understandings of the weights of different principles that may be suggested
by arguments of precedent, the framers' intent, or value.
Second, arguments within the category of theory almost invariably
reflect tension between the Constitution's majoritarian and its rightsprotective aspects. 278 Against any theoretical claim asserting protected
rights, there may be opposed a counterprinciple that counsels deference, in the name of federalism or the separation of powers, to the
judgment of a democratically accountable decisionmaker. First
amendment cases provide a good example. On the one hand stands
the first amendment interest in free expression. On the other loom
the government's interests in protecting its citizens against harmful
effects that speech might cause. This opposition may be subsumed
within a unitary theory of the Constitution or represented as an
opposition between theoretical claims founded on different provisions.
In either case, the result is the same. The relative weights of principles that define rights and of their counterprinciples that assert
governmental powers must be calculated in order to determine the
balance of theoretical arguments, and these weights may be reconsidered and adjusted on a case-by-case basis.
. Third, any argument of theory must encompass interests defined
along the twin dimensions of descriptive accuracy and normative
attractiveness. 2 79 These two dimensions generate tension because the
theory that best explains the data may be less normatively attractive
than another theory whose fit is only slightly inferior. When a situtation such as this arises, some trade-off will be needed. 28 0 The tradeoff can be influenced by the effort to reach coherence among the
276 The most promising rival is one about whose workability I have considerable doubts.
See supra note x89 (discussing Bruce Ackerman's Storrs Lectures).
277 See Schauer, supra note 17, at 816.
278 See, e.g., Bennett, supra note 86, at 489-91 (discussing constitutional protection of welfare
benefits); Dworkin, supra note 89, at i8o.
279 The distinction between these dimensions should not be drawn too sharply. See supra
note 64.
0
28 See R. DWORKIN, A MATTER OF PRINCIPLE, supra note 26, at I6o-6i.
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factors comprised by arguments from text, arguments of historical

intent, precedent, and value.
To justify this interpretation of the role of arguments of constitutional theory, normative argument is needed along two fronts. First
needing explanation is why constitutional theory should be held to
count for so much - enjoying a status superior to arguments of
precedent, for example. As always, the argument has descriptive
roots. When precedents are overruled, the reason frequently lies in a
changed understanding of the aims, purposes, or assumptions in light
of which textual guarantees make the most sense - not new information about the framers' intent or an altered view of what arguments
from text require. 28 ' But other kinds of reasons can be given.
Arguments of theory are recognized as important partly because it
is difficult if not impossible to think about law other than in purposive
terms. 28 2 And it is through constitutional theory that the Constitution's purposiveness is most fully expressed. Although inquiries into
the intent of the framers involve a related search for purpose, the
category of theory correctly presupposes that the framers may have
created, or added to, a design whose character and utility they only
partly understood. This possibility may provide a reason for formulating the framers' intent generally or abstractly, so that intent does
not bar a result strongly supported on other grounds. But it remains
important that the reason for proceeding in this way - for specifying
the framers' intent at some particular level of generality or abstraction
- be set up clearly and independently, so that its force can itself be
evaluated.
Constructivist coherence theory's portrayal of the influence of arguments of constitutional theory might also be attacked, however, as
being excessively constrained. In order to prevail within the constructivist coherence framework, arguments of constitutional theory must
be consistent with the best arguments from text and with a defensible
specification of the intent of the framers. Some constitutional theories
would permit the disregard of textually and historically clear constitutional judgments, and even of recently enacted constitutional
amendments, on the ground that they do not fit with the theory that
best explains the Constitution as a whole. 283 But a constitutional
281 See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 555-57 (1985)
(overruling Nat'l League of Cities v. Usery, 426 U.S. 833 (1976)).
282 Cf. Schauer, supra note 17, at 811-12 (asserting that the authoritativeness of the constitutional text, as a text, requires attention to textual purposes distinct from the "psychological
conditions" of the Constitution's authors). See generally Fuller, Positivism and Fidelity to Law
A Reply to Professor Hart, 71 HARV. L. REv. 630 (1958).
283 See Murphy, An Ordering of Constitutional Values, 53 SO. CAL. L. REV. 703, 754-57
(i98o) (arguing that constitutional amendments could be unconstitutional if incompatible with
the basic scheme of values to which the Constitution is best viewed as committed). Professor
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theory permitting this result would not only depart from what I take
to be the understanding of most constitutional lawyers; it would accord
too little weight to the claim that the Constitution, whatever else it
may be, is positive law.
D. Arguments from Precedent
Arguments of precedent fit comfortably into the constructivist coherence framework largely because of their theoretical and valueinfused nature. An account of the holdings of a string of cases states
a theory of their meaning that, like any theory, will be value-infused. 284 Moreover, like any legal theory proposed to guide the decision of future cases, a theory explaining prior decisions will be
subject to evaluation under joint and sometimes competing criteria of
descriptive adequacy and normative attractiveness. A concern for
moral and policy values is therefore built into arguments from precedent, and explicit attention to value arguments frequently will have
28 5
a spillover effect into the precedential category.
With precedential arguments exhibiting this substantial degree of
indeterminacy and adaptability, the workability of constructivist coherence theory is clear. The theory holds that plausible interpretations
of the cases should be considered in light of such factors as fidelity to
textual language, the intent of the framers, and considerations of
constitutional theory and of morality and social policy. Value arguments are likely to be especially important. But reciprocal influence
is also possible; the most persuasive reading of the precedents can and
should affect the assessment of arguments based on text, historical
286
intent, constitutional theory, and even moral and policy values.
In order to be persuasive, constructivist coherence theory's interpretation of the role of precedent requires a normative argument that
it is at least reasonable for arguments from precedent to get precisely
as much weight as they do - not less and not more. From the
perspective of those who regard text and the framer's intent as the
sole legitimate authorities, precedent's influence may seem too large.
This is particularly true insofar as arguments of precedent are permitted to affect arguments from text, as when "lawyers' meanings"
7
are allowed to substitute for plain language or historical meanings 28
Dworkin seems occasionally to have flirted with, but apparently rejected, a similar position.
See infra notes 403-o5 and accompanying text.
284 See supra notes 59-65 and accompanying text.
285 If this argument has a modernistic cast, the subtantial malleability of precedent has long
been recognized. See, e.g., E. LEVI, supra note 58, at 1-4; K. LLEWELLYN, THE COMMON
LAW TRADITION 75-91 (ig6o); Radin, Case Law and Stare Decisis: Concerning Prajudizienrecht
in Amerika, 33 COLUM. L. REv. 199 (i933).
286 See infra note 296 and accompanying text.
1987]
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or to provide a reason for fixing the framers' intent at high levels of

abstraction. Again, however, the first line of defense is descriptive.
Though precedents can be rejected based on arguments from text and
the framers' intent, this seldom happens. The cases take on a significance of their own. 288 And there are good reasons why they should.
By giving a step-by-step quality to the process of projecting constitutional norms, reasoning from precedent provides a useful means
of applying constitutional guarantees to modern analogues of the problems to which they initially were addressed. Constitutional law would
have a fantasy-world quality if it relied too heavily on judgments as
to how the framers would have dealt with problems that they never
foresaw or could have imagined. In contrast, the desirable effect of
reasoning from precedent is to define issues in terms within the reasonable scope of the legal imagination.
If, through this process, the underlying norms undergo a progressive reinterpretation - if, for example, the guarantee of equal protection is understood to sweep more broadly now than forty years ago
the test of desirability should be at least partly normative. Moreover, once precedents are established, the value of stability requires
at least a presumption against overturning them. And so long as
precedents are not reversed, fairness requires that "like cases" be
treated alike.
The related concern that constructivist coherence theory gives precedent too little weight arises from precedent's location at the fourth
level of the hierarchy. In the view of some, this status gives precedent
insufficient influence. Professor Monaghan, for example, has endorsed
a conception of stare decisis sufficiently robust to trump the otherwise
originalist principles of his constitutional theory. 28 9 In Monaghan's
view, "where settled expectations of the body politic have clustered

around constitutional doctrine, '290 precedent, apparently no matter
how mistakenly reasoned, must prevail.
Monaghan's theory is too strong. 29 1 Part of the justification for
allowing precedent to exert a sometimes controlling force arises from
288A good example comes from the "one person, one vote" cases. See, e.g., Reynolds v.
Sims, 377 U.S. 533, 56o (1964); Gray v. Sanders, 372 U.S. 368, 381 (1963).
In Reynolds, Justice
Harlan made a powerful argument in dissent that the Court's decision was unjustifiable because
the framers of the fourteenth amendment had no specific intent to create voting rights. See id.
at 59o-9i, 607-08 (Harlan, J., dissenting). Once a long line of decisions has grown up, however,
the existence of other cases proceeding on the assumption that the framers' intent should be
understood as encompassing voting rights provides a reason for understanding their intent in
just that way. Justice Harlan's historical argument has not been repeated in any recent case.
289 See Monaghan, Court Opinions, supra note 56, at 7; Monaghan, supra note 30, at 38283, 387-91.
290 Monaghan, Court Opinions, supra note 56, at 7.

291 It is also, curiously, too weak. Its weakness inheres in its apparent "thus far and no
farther" quality. For example, although Monaghan believes that Roe v. Wade, 410 U.S. 113
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the possibility that, upon sober reconsideration, any particular decision

or even train of decisions can be set aside on grounds of incompatibility with compelling arguments from text, the framers' intent, or
constitutional theory, as influenced by concerns of morality and policy.
Suppose that the line of decisions symbolized by Lochner v. New
York 292 once supported "stable expectations." 293 But suppose further
that Lochner rested on an unnecessary construction of the constitutional language, on a problematic conception of the framers' intent,
on a constitutional theory that had come to appear misguided, and
on moral and policy values that were deeply contested if not clearly
mistaken. In such a case, the force of precedent alone should not
have determined the future of our constitutional law; the Supreme
Court should have been free to overrule the Lochner decision. Precedent is a proper factor in constitutional analysis. But when other
considerations point powerfully to a different result, contrary arguments based on precedent should not bar the way.
E. Value Arguments
A constructivist coherence approach to constitutional interpretation
posits that arguments of value may perform any of three roles. First,
coherence or fit with strong moral and political arguments often serves
as an index of the correctness of contending claims. For example,
where constitutional guarantees incorporate essentially contestable
concepts, 294 the most plausible argument from text will be that which
coheres best with the strongest normative arguments. Second, even
if moral and political judgments do not establish a direct preference
between arguments within another category, especially powerful value
arguments can further weaken a doubtful conclusion concerning the
framers' intent to the point where it cannot prevail. 295 Finally, arguments in other categories often will be value-infused. Self-conscious
attention to moral and policy arguments may therefore cause an in(1973) was wrongly decided, see Monaghan, Court Opinions, supra note 56, at 8, he now not
only would not overrule Roe but also would "perpetuate the core" of "the privacy-autonomy-
equality holdings in the sex-marriage-children area," Monaghan, supra note 30, at 382.
The
implications of this cryptic assertion are somewhat less than clear. Yet Monaghan seems to
contemplate a kind of crabbed construction of the underlying decisions' precedential authority
in future cases - a style of analysis generative of unpredictability and arbitrariness, and, within
the context of our legal system, one that is in tension with Monaghan's own concession that
arguments from original intent "cannot now be recognized as the only legitimate mode of
constitutional reasoning." Monaghan, supra note 30, at 382.
292 198 U.S. 45 (1905).
293 Whether it actually did so is a question that I mean to leave open. "[Wihile nearly 200
regulations were struck down during the Lochner era, most challenged laws withstood attack."
G. GUNTHER, CONSTITUTIONAL LAW 453-54 (iIth ed. 1985).
294 See supra note 76 and accompanying text.

1987]
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terpreter to review any balance that she has struck within other
categories.
Just as moral and political considerations affect the way that other
kinds of argument get weighed in constitutional interpretation, there
is a reciprocal traffic: value arguments themselves may be influenced
by other factors in constitutional analysis. From whatever source they
are derived, particular value judgments must be reconsidered if they
are incompatible with the most plausible interpretations of constitutional text, historical intent, constitutional theory, or precedent.
Checking particularistic judgments against other indicators of moral
and political insight can only enrich the process of decision. Even as
moral and political judgments, conclusions ought to be suspect if
dramatically divergent from the traditions embodied in law. 296 And
the demand for reconsideration and possible adjustment of moral or
political views is especially apt when moral or political arguments
function within a legal calculus. Constructivist coherence theory is
concerned with the use of value arguments within the practice of
constitutional interpretation, not in independent moral or political
reasoning.
Although it defines the framework within which value arguments
operate, constructivist coherence theory does not provide extensive
criteria for identifying the best arguments of value or even the foundational theories in which those arguments would be grounded. The
theory's principal significance, beyond specifying how the various categories of argument do and ought to interact, lies in its identification
of a kind of filter: when value arguments function as constituent
elements of constitutional reasoning, a constitutional interpreter must
be able to make at least the implicit claim that the values to which
297
she appeals are in some sense those of the constitutional community.
296 The idea that tentative moral judgments or intuitions are subject to reconsideration and
adjustment - although typically in a two-way traffic with more general moral virtues or
principles - is a familiar one in moral and political philosophy. See supra note 230.
297 This demand is not a vacuous one. But neither should its significance be overstated.
Although I assume that some sources of value would prove unworkable in practice and therefore
need to be abandoned, I would be surprised if this happened with respect to relatively familiar,
even if controversial, moral or political theories. Moreover, the identification of values that are
in some sense those of the constitutional community is an interpretive enterprise that is deeply
contestable. Professor Robert Cover, for example, has argued forcefully and provocatively that
our nation is home to a disparate array of groups, each of which defines itself through a different
conception of normative order through which it perceives and into which it seeks to incorporate
institutions and events. See Cover, Violence and the Word, 95 YALE L.J. 16oi (1986); Cover,
supra note 26. This fact - for I take it to be such - does not defeat the enterprise of
identifying the values of the constitutional community. For the community's values, as they
typically are and must be assumed to be for purposes of constitutional argument, do not represent
the sum of some set of observable behaviors or even responses to a public opinion survey.
Rather, this concept must express the familiar interpretive efforts of judges, critics, and social
philosophers to articulate the principles and commitments that best explain particular traditions,
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[Vol. 100:1189
for example, tradi-
tional morality, consensus values, natural law, economic efficiency, or

the original position methodology of John Rawls 2 98 - were to create
frequent or pervasive tension with stable understandings concerning
the weight of arguments from text, the framers' intent, constitutional
theory, or precedent, a constructivist coherence approach would require the constitutional interpreter to reconsider her methodological
assumption that that particular source of values could be appealed to
in constitutional argument.
Because the role of value arguments in our constitutional practice
is deeply controversial, my interpretive account clearly requires normative justification. But the normative arguments should not obscure
the empirical foundations of my theory. Value arguments have a
profoundly ambivalent status in our constitutional practice. Despite
the impossibility of excluding value arguments from the constitutional
calculus, 299 their significance is resisted and occasionally denied by
commentators 30 0 and by judges. 30 1 Constructivist coherence theory
mirrors this ambivalence. On the one hand, arguments of value
occupy the absolutely lowest rung in constructivist coherence theory's
hierarchical ordering of factors. On the other, value arguments are
portrayed as capable of exercising determinative influence in the vast
majority of cases in which coherence proves reachable.
With an ambivalent stance toward the role of value arguments
required by our constitutional practice, the normative considerations
to which my account appeals are familiar. The hierarchical ranking
of value arguments is appropriately low because we want our constiinstitutions, laws, events, and central texts in the nation's political history. Conceived in this
way, the "data" to be explained are certain to be more or less consistent with a number of
explanations. A theory of the community's morality thus will inevitably be "interpretive" in the
sense in which I have used that term; it will be informed by the moral commitments of the
person developing the theory. See supra pp. 1192, 1131-37. On the other hand, however, the
interpretive effort is both real and important. The data to be explained will not be wholly
without constraining force; appeal to the community's values is more than a charade through
which a judge imposes her own unmediated moral views. And, perhaps most importantly,
interpretive efforts to identify the community's morality are required by a constitutional practice
that welcomes the infusion of value arguments into our constitutional law yet retains an ideal
of the judicial office as in some sense representing the whole people of the United States. Recent
scholarship has tended to link this ideal of judicial representation of the people and of deliberation on the people's behalf with a "republican tradition" in American political thought and
culture. See, e.g., Michelman, The Supreme Court, r985 Term - Foreword, Traces of SelfGovernment, ioo HARV. L. REV. 4 (1986); Sunstein, Interest Groups and American PublicLaw,
38 STAN. L. REV. 29 (1985). For a more concrete interpretive effort to draw out the implicit
moral commitments of our national community as a community, see M. WALZER, SPHERES OF
JUSTICE (1983).
298 See supra notes 87-91.

299 See supra pp. 1204-09.
300 See supra pp. 1211-13, 1215-17.
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tutional law to be law in the truest sense - binding on judges as

well as on the judged. 30 2 When the claims of arguments from text
and the framers' intent are sufficiently clear, contrary moral and political arguments therefore must give way.
This argument, which I have so far expressed as a conceptual
claim about what "law" requires, also has a pragmatic dimension.
However much value arguments may influence the assessment of other
factors in the constitutional calculus, it is desirable to preserve the
partial autonomy of constitutional law from politics and morals by
insisting that the Constitution may in appropriate cases bind judges
against their moral convictions. For it is important, in terms of
preserving an appropriate psychology of adjudication, that the distinction between law and morals, however blurred by constructivist
coherence theory, retain its bite at least in a small category of limiting
cases. 30 3 Judges and other constitutional interpreters are not, for the
most part, prophets or even moral philosophers. 30 4 For them to conceive their role in that way could subtly transform the judicial function
into one that lawyers and judges are not trained to fill and are unlikely
to fulfill successfully. 30
Although judges and other constitutional
302 See C. BLACK, THE PEOPLE AND THE COURT 6 (196o) (arguing that if the notion that
the Constitution is law is rejected, "then the American doctrine of judicial review has no
theoretical justification").
303 The thesis that moral and legal reasoning are inseparable in all cases might be asserted
on any of three bases. One is a thesis that the law is totally indeterminate and that legal
reasoning therefore reduces to moral and political reasoning about what is the best thing to do
in any particular case. Cf. Kennedy, Legal Education as Trainingfor Hierarchy, in THE
POLITICS OF LAW 40, 47 (D. Kairys ed. 1982) ("There is never a 'correct legal conclusion' that
is other than the correct ethical and political solution to legal issues."). This view is inconsistent
with most of the argument in this essay. The assumption reflected here is that the norms and
shared understandings obtaining within the practice of constitutional interpretation at a given
time will sufficiently cabin the range of plausible interpretations so that any total indeterminacy
thesis - if it is to be stronger than the Humpty Dumpty claim that anyone can use words
however she chooses - must be rejected. A second basis for the conclusion that legal and
moral reasoning are universally inseparable would be that our constitutional system is sufficiently
infused with natural law that it just happens that the legally best answer in every case will be
identical with the morally best answer. I regard this vision of the American Constitution as
impossible to sustain. The constitutional status of slavery once provided convincing proof. See
infra notes 399-405 and accompanying text. The Constitution's relative indifference to issues
of poverty and distributive justice continues to reflect, for all but the most extreme Lockean,
see e.g., R. NOZICK, ANARCHY, STATE, AND UTOPIA (1974), the misguidedness of a panglossian
outlook. A third possible argument would be that, because the decision of every case requires
judgments that are "value-infused," politics or morality enters into every decision and that the
"partial autonomy" thesis therefore collapses. Although the premise of this argument is a valid
one, the asserted conclusion does not follow. The "partial autonomy" thesis does not deny "value
infusionism"; it implies only that "the best legal argument" can sometimes be different from "the
best moral argument" and, thus, that legal reasoning is not identical with moral reasoning.
304 But see Perry, supra note 17, at 564, 583 (arguing that judges do and should exercise a
"prophetic function").
305 See generally Fried, The Artificial Reason of the Law or: What Lawyers Know, 6o TEX.
L. REv. 35 (1981).
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interpreters must engage in moral and political reasoning in order to

do their jobs well, they are likely to perform best within a familiar
legal structure that gives only a subordinate if essential role to arguments of value.
Within the familiar legal structure, however, closely related considerations of competence and necessity support recognition that value
arguments have a large and appropriate influence. The argument
from competence is clear though controversial: our constitutional system embodies commitments to competing values - notably to individual rights and to moral principles, as much as to majoritarian
government - and in reviewing the balance that other branches of
government have struck, "courts have certain capacities for dealing
with matters of principle that legislators and executives do not possess."306 The best short statement remains that of Alexander Bickel:
[M]any actions of government have two aspects: their immediate,
necessarily intended practical effects, and their perhaps unintended or
unappreciated bearing on values we hold to have more general and
permanent interest. [W]hen the pressure for immediate results is
strong enough and emotions ride high enough, [legislators] will ordinarily prefer to act on expediency rather than take the long view ....
Judges have, or should have, the leisure, the training, the insulation to follow the ways of the scholar in pursuing the ends of government. This is crucial in sorting out the enduring values of a society
.... [Courts can] appeal to men's better natures, to call forth their
aspirations .... This is what Justice Stone called the opportunity
for "the sober second thought." The Justices, in Dean Rostow's
phrase, "are inevitably teachers in a vital national seminar." No other
branch7 of American government is nearly so well equipped to conduct
30
one.
Bickel's assertion of judicial competence rests on a contested empirical foundation. A competing view maintains that historical experience with judicial importation of value arguments into the constitutional calculus, in a line of cases that includes Dred Scott v.
Sandford3 8 and Lochner v. New York, 30 9 establishes that disastrous
results are frequent. 3 10 But with examples and counterexamples avail306 A. BICKEL, supra note 96, at 25; accord Brest, supra note x8, at 228; Grey, supra note
192, at 24.
307 A. BICKEL, supra note 93, at 24-26 (footnotes omitted); accord C. BLACK, supra note
302, at 177 (stating that members of Congress are "subject to [political] pressures which render
merely ironic the expectation that they will weigh constitutional questions, as they ought to be
weighed, in the interest of the whole nation, and with a view to the long past and the long
future").
o30
6o U.S. (xg How.) 393 (1856).
309 i98 U.S. 45 (195o).
310 See Rehnquist, The Notion of a Living Constitution, 54 TEx. L. REv. 693, 700-04
(1976).
1987]
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able to both sides, the opposition argument is ultimately the less

convincing. To see why this is so, it is important to recognize that
value arguments can provide an important reason either to invalidate
31 1
or to uphold state or congressional legislation.
When the Court depends on value arguments to hold laws unconstitutional, the measure of damages presumably lies in frustration of
the majority's will. Frequently, however, the law may be an old one,
3 12
which may not in fact enjoy the support of any current majority.
Regardless, the Supreme Court is unlikely to be far out of touch with
the majority's sense of political morality for very long. 3 13 Moreover,
decisionmakers situated to take the long view and relying on moral

and policy values in doing so can do and have done much good.
Important instances include Brown v. Board of Education,3 14 the "one
person, one vote" cases, 3 15 and much if not most of our modern first,
fourth, eighth, and fourteenth amendment jurisprudence.
Not surprisingly, critics of value arguments seldom stress that the
Court commonly relies on value arguments in validatingcontemporary
legislative action - even in contexts in which the original understanding and the framers' specific intent would call for a different result
that also could be supported by precedent. Yet as Professor Charles
Black has eloquently argued, a crucial function of judicial review in
our constitutional system is to legitimate governmental action - to
give it an imprimatur of more or less disinterested approval as something more than a naked and unprincipled assertion of power by a
current majority. 3 16
This is a function that could not honestly be
performed if judges were not allowed to appeal to concerns of value

and policy in shaping constitutional doctrine to the exigencies of
changing times. 3 17 Opposition to the introduction of value arguments
into constitutional argument and interpretation thus repeats a central
error of originalism. The oppositionist position threatens to deny any
means for accommodating the Constitution to perceived current needs
and contemporary conceptions of justice.
Nor does the supervening value of democracy undermine the competence of judges, or require, insofar as is humanly possible, that they
311 See C. BLACK, supra note 302, at 52-56.
312 See generally G. CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 8-IS (1982).
313 See Dahl, Decision-Making in a Democracy: The Supreme Court as National PolicyMaker, 6 J. PUB. L. 279 (1957), reprinted in JUDICIAL REVIEW AND THE SUPREME COURT 105
(L. Levy ed. 1967).
314 347 U.S. 483 (1954); see infra pp. 1278-82.
315 See, e.g., Gray v. Sanders, 372 U.S. 368 (z963). The meaning of the "one person, one
vote" principle began to emerge clearly in Reynolds v. Sims, 377 U.S. 533, 562, 568 (x964).
Important precursors to that decision included Baker v. Carr, 369 U.S. i86 (1962), and Wesberry
v. Sanders, 376 U.S.
316
317
(1964).
See C. BLACK, supra note 302, at 52-86.

See id.
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abjure reliance on value arguments. Democracy is a deeply contestable concept. Certainly our democracy, with its assumption that contemporary majorities are subject to higher law, has acquiesced in and
even depended upon a constitutional practice in which judges rely
heavily on value arguments in rendering their decisions. 3 18 Our familiar practice of judicial review, including its reliance on value arguments, enhances rather than thwarts the distinctively American
system of political democracy in which the people have trusted the
courts, and especially the Supreme Court, to function as a check and
a break - to signal that certain things that currently seem desirable
or expedient ought not to be done because they are incompatible with
the moral or political principles on which the constitutional community
is built.
The argument from practical necessity, which is closely related to
the argument from competence, follows from the premise of the indeterminacy of other legal materials in hard constitutional cases.
Where other sources of law would permit more than one result, it is
only reasonable for a decisionmaker to employ moral and political
criteria as grounds for preference. Often this result may occur through
arguments or conclusions that could be described as "merely" valueinfused. But if values, explicitly or implicitly, must enter into the
process of decision, candor demands that the truth be recognized. 3 19
Moreover, by flushing moral judgments out into the open, constructivist coherence theory invites judges to confront the extent to which
their views really are infused by moral and political values and to
assess arguments and evidence that their beliefs may be mistaken. A
moral judgment not only can but frequently will be too uncertain to
justify forced efforts to achieve coherence in favor of a particular
decision. This important truth is as likely to be grasped by judges
who are self-conscious about their reliance on value arguments as by
those whose reliance is not so much less as it is less self-conscious.
VI.
SOME TESTING CASES
So far, the discussion has had a somewhat abstract flavor. In this

Part, I focus more concretely on the problems presented by three
specific cases. All involve issues of racial justice, a subject that has
318 Cf. C. BLACK, supra note 302, at 104-05, 209-11 (suggesting that practice of judicial
review is not antidemocratic but rather a creation of the American people that has an organic
role in American democracy); Sunstein, supra note 297 (arguing that the Madisonian conception
of democracy assumes that political judgments can and should be based on calculations of the
general or public good, not the narrower interests of partisan groups, and that courts act
consistently with the Madisonian understanding of democracy when conducting deliberations
about the public good).
319 See Shapiro, supra note 59.
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been among the most difficult and controversial in our constitutional

law. But these cases also raise a set of methodological and jurisprudential issues about the commensuration of different kinds of constitutional argument that are by no means peculiar to this area.
The three cases that I discuss are all intended to function as
paradigms. The first, Regents of the University of California v.
Bakke, 320 required the Supreme Court to give its first substantive
decision about the constitutionality of affirmative action. Although
Bakke is chronologically the latest of my three cases, I discuss it first,
because it is the most typical in an important respect: in Bakke, the
interrelationships among the various categories of constitutional argument make it rather easy to achieve coherence, not only for the
outcome that I would endorse, but for other outcomes as well. The
second case, Brown v. Board of Education,32 1 presents a slightly less
common but nonetheless important and paradigmatic problem. As I
see and as I believe that the Supreme Court saw the Brown case,
there was an initial dissonance between, on the one hand, the moral
view that segregation of public schools was wrong and, on the other,
plausible contrary arguments based on precedent and the framers'
intent. Within a constructivist coherence approach, the paradigm
presented in Brown illustrates more or less self-conscious adjustments
leading to coherence. My final case situation, chosen to exhibit the
possibility within our constitutional practice of a morally objectionable
outcome being dictated hierarchically by arguments from text and the
framers' intent, involves the constitutionality of slavery prior to the
Civil War.
Lest this Part appear to promise more than it can deliver, a
reminder is in order. Constructivist coherence theory is a formal
theory, not a substantive one. Although it provides a framework for
resolution of commensurability problems that is both descriptively apt
and prescriptively useful, the theory does not purport to identify, nor
to provide criteria for the identification of, the most powerful arguments from text or concerning the framers' intent, constitutional theory, precedent, or morality or policy. As a result, except in the case
of the constitutionality of slavery under the pre-Civil War constitution,
I cannot claim that the theory indicates a uniquely correct outcome
for the cases that I discuss. The theory aspires far less to determine
results than to supply a needed structure to decisionmakers struggling
with difficult constitutional issues.
A. Bakke and the Problem of Affirmative Action
For at least two decades after the watershed decision in Brown v.
Board of Education, civil rights cases were argued before and decided
438 U.S. 265 (978).
"' 347 U.S. 483 (1954).
320
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by the Supreme Court in a rhetorical mode that suggested a constitutional ideal, and arguably a requirement, of color blindness. 322 As
Professor Randall Kennedy has noted: "In the forties, fifties and early
sixties, against the backdrop of laws that used racial distinctions to
exclude Negroes . . .it seemed that racial subjugation could be overcome by mandating the application of race-blind law. '3 23 By the late
sixties and early seventies, however, blacks continued to lag badly
behind whites in the most critical indicators of educational and economic success. 3 24 The impulse to adopt programs of affirmative action
arose during this period.32 5 In order to achieve a tangible closing of
the economic and educational gap between blacks and whites, a variety of institutions, both public and private, undertook affirmative
action initiatives that granted explicit preferences to blacks and other
minorities.
The Supreme Court first confronted a challenge to the legality of
affirmative action in 1978, in Regents of the University of California
v. Bakke. 32 6 Specifically at issue in Bakke was a system of minority
admissions preferences, including a racial quota, administered by the
medical school of the University of California at Davis. By a vote of
5-4, the Supreme Court held the racial quota impermissible. 3 27 Also
by a vote of 5-4, however, the Court concluded that noninvidious
racial preferences could be upheld if closely enough related to a sufficiently important governmental interest. 3 28 The Court was badly
fractured. Only Justice Powell, who announced the judgment in an
opinion that was not joined in full by any other Justice, concurred in
both aspects of the holding. 32 9 But my interest in Bakke is less in the
specific conclusions reached by the participating justices than in the
322 See Kennedy, Persuasionand Distrust: A Comment on the Affirmative Action Debate, 99
HARv. L. REv. 1327, 1335-36 & n.32 (1986); Reynolds, Individualism v. Group Rights: The
Legacy of Brown, 93 YALE L.J. 995, 998-1000 (1984).
323 Kennedy, supra note 322, at 1335.
324 See Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 395-96 (1978) (opinion of
Marshall, J.); Fallon & Weiler, Firefighters v. Stotts: Conflicting Models of Racial Justice, 1984
SuP. CT. REV. 1, 33.
325 See Fallon & Weiler, supra note 324, at 33-34.
326 438 U.S. 265 (1978). The Court previously had heard arguments about the constitutionality of affirmative action in DeFunis v. Odegaard, 416 U.S. 312 (I974), but held the case to
be moot and therefore did not reach the merits.

327 See Bakke, 438 U.S. at 271.
328 Four Justices concluded that benign preferences should be upheld if justified by "an
important and articulated purpose," as long as they do not "stigmatize[ ] any group or... single[
] out those least well represented in the political process to bear the brunt of [the] program."
Id. at 361 (opinion of Brennan, White, Marshall, and Blackmun, JJ.). But Justice Powell, who
provided the crucial fifth vote for the result, found even noninvidious racial classifications to
be permissible only when "precisely tailored," id. at 299 (opinion of Powell, J.), or even
necessary, id. at 320, to serve a "compelling government interest," id. at 299.
329 See id. at 271-72.
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connections that Bakke illustrates among the various categories of

constitutional argument.
Because Bakke was a case of first impression, the appropriate
starting point for the Court's analysis lay in the language of the equal
protection clause. Did the guarantee of "the equal protection of the
laws" forbid race-based discriminations of the kind practiced by the
University of California at Davis? The text of the equal protection
clause provided no obvious resolution to this question. "Equal protection of the laws" has never meant and cannot mean that different
classes of persons never may be treated differently. In Bakke, for
example, it was common ground that the Davis medical school needed
some basis for deciding whom to admit. The question before the
Court therefore had to be not whether it is permissible for the law to
treat different classes of people differently, but whether the particular
criteria for differentiation that were being used - including preferences for racial minorities - offended the moral and legal concept of
"equal protection." With the issue so framed, the textual language
would bear many meanings. The criteria for choice in Bakke could
not be solely linguistic.
How then to decide? At least three relevant considerations, by no
means necessarily mutually exclusive, immediately suggest themselves.
The first involves the intent of the framers and the original understanding. The second, stemming from a recognition that "equal protection" is an essentially contestable concept, 330 is how benign racial
preferences fit into the background web of moral concerns and concepts in which "equal protection" is rooted. Also potentially relevant
is how judicial precedents have previously construed "equal protection" as a legal concept. In short, arguments from text blend at the
outset with arguments concerning the framers' intent, moral and political values, and precedent.
Within the category of the framers' intent, the question in Bakke
was whether the thirty-ninth Congress meant to prohibit race-based
preferences designed to rectify past societal discrimination. 3 3 1 This
question is vastly less straightforward than it appears. It is no accident that the legislative history of the fourteenth amendment does not
speak directly to the permissibility of affirmative action. The possibility of affirmative action preferences that were not closely linked to.
the abolition of slavery was virtually unthinkable at the time of the
amendment's enactment. Reconstruction congresses did create the
330 See supra pp. 12o5-o6.
331 One arguable account is that the framers intended to extend the scope of the equal
protection guarantee only to a closed list of rights - not including education - deemed to be
"fundamental" in 1868. See R. BERGER, supra note 39, at 133, 168-92. But this approach has
been foreclosed, at least for anyone accepting the constitutional soundness of Brown v. Board
of Educ., 347 U.S. 483 (I954).
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Freedmen's Bureau to assist freed blacks in attaining economic independence. 332 But no thought was given to whether, years after slavery
had been abolished, affirmative action would be permissible not to
compensate individuals for wrongs done to them individually, but to
disestablish patterns of societal discrimination that caused disadvantage to blacks as a group. With respect to this question, the framers'
intent might simply be pronounced inconclusive. Alternatively, the
inquiry could be conceived more abstractly: what stance toward affirmative action follows from the moral and political theory that best
explains the relevant historical evidence of the framers' actual intent?
If the question is formulated in this way, however, it has no purely
historical answer. The required judgment, which is interpretive, has
333
an irreducibly normative dimension.
Precedent and prevalent moral and political judgments would have
helped in Bakke to frame at least three plausible specifications of the
framers' abstract intent. From one view, the framers' central concern
was to forbid discriminations based on race. 33 4 Another specification
of the framers' intent would be less absolute. According to this account, the framers' abstract intent, growing out of their sense of the
wrongfulness of slavery and the attendant subjugation of blacks to an
inferior status, was to render strongly suspect any discrimination based
on race or other qualities that commonly are the basis for invidious
discriminations. 3 35 Finally, the framers' intent might be characterized
directly in terms of invidious motivation. With Reconstruction congresses having created the Freedmen's Bureau to assist newly freed
blacks, it is arguable that the framers would have meant to ban only
those discriminations that resulted from animosity or indifference to
3 36
the disadvantaged group.
Issues of constitutional theory were also present in Bakke. It is
possible to imagine a constitutional theory, developed around a particular conception of equality, that would forbid affirmative action.
In Fullilove v. Klutznick,3 37 for example, Justice Stevens propounded
a theory that linked the equal protection clause with the constitutional
prohibition against titles of nobility. 338 In conjunction, he thought,
332 See Bakke, 438 U.S. at 391, 397-98 (opinion of Marshall, J.).
333 See supra pp. 1212-13.
334 This is the account presented by Justice Stewart in his dissent in Fullilove v. Klutznick,
448 U.S. 448, 523-26 (ig8o) (Stewart, J., dissenting).
33s Cf. Bakke, 438 U.S. at 291-99 (opinion of Powell, J.) (requiring a "compelling" justification for any race-based governmental classification and tracing this requirement, in part, to
the intent of the framers of the fourteenth amendment).

336 Cf. id. at 398 (opinion of Marshall, J.) (arguing that the framers of the fourteenth
amendment did not intend to ban "race-conscious relief measures" designed not to stigmatize
but to promote "genuine equality" of the races).

33' 448 U.S. 448 (ig8o).
338 U.S. CONST. art. I, 9, cl. 8.
1987]
1273
the two provisions reflected a general principle against allowing either

benefits or burdens to depend on parentage or ancestry. 3 39 In contrast,
Dean Ely's theory calls for little judicial scrutiny of political decisions
340
If
that burden not minorities but members of the white majority.
neither of these arguments is accepted, however, the constitutional
theoretical debate tends to revisit concerns that arise in assessing
arguments from text and in specifying the framers' abstract intent.
The question is the same: how ought the constitutional concept of
equality to be understood?
Arguments from precedent similarly require, at least as much as
they determine, choice. Although the affirmative action issue was one
of first impression in Bakke, by 1978 an abundant equal protection
jurisprudence had accumulated. As with arguments concerning the
framers' abstract intent, the cases reasonably could be lined up to
support at least three positions. First, the cases could be viewed as
progressively building on the interpretation offered by the first Justice
Harlan in his dissent in Plessy v. Ferguson:34 1 the Constitution demands color blindness. 3 42 A second plausible account would view the
cases as allowing race-based classifications only where necessary to
serve important governmental interests. 343 A third possible interpretation would focus less on the cases' language than on their facts and
surrounding context. According to this view, judicial precedent established a near absolute prohibition on invidious discrimination based
on hostility or resulting in stigma but counseled no prohibition against
racial preferences intended to eradicate the vestiges of prior discrim344
ination.
In this context of flux, the category of value arguments might have
appeared certain to prove determinative of the Bakke result. Yet in
Bakke, as in many other cases, it would be mistaken to view value
arguments as substantially independent from arguments in the other
categories. Some of the best guides to the values appropriately allowed to influence a constitutional judgment may lie in legal precedent
and in constitutional history - although in Bakke, both precedent
and history, as we have seen, were open to conflicting interpretations.
From one perspective, it was the constitutional shame of slavery that
most importantly gave rise to the Civil War amendments; efforts to
eradicate the remaining vestiges of racial subjugation could hardly
339 See 448 U.S. at 532-35 (Stevens, J., dissenting).

340 See J. ELY, supra note 6, at 170-72; Ely, The Constitutionality of Reverse Racial
Discrimination, 41 U. CHI. L. REV. 723 (,974).
341 163 U.S. 537 (1896).
342 See id. at 559 (Harlan, J., dissenting). This was the view of Justices Stewart and
Rehnquist in Fullilove v. Klutznick, 448 U.S. 448, 522-27 (i98o) (Stewart, J., dissenting).
343 See Bakke, 438 U.S. at 299, 320 (opinion of Powell, J.).
344 See id. at 356-62 (opinion of Brennan, White, Marshall, & Blackmun, JJ.).
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offend the moral tradition in which those amendments are located. 3 45

But there was also a contrary view, powerfully expressed by Alexander
Bickel: "The lesson of the great decisions of the Supreme Court and
the lesson of contemporary history have been the same for at least a
generation: discrimination on the basis of race is illegal, immoral,
unconstitutional,
inherently wrong, and destructive of democratic so34 6
ciety."
How ought a Supreme Court Justice to have come to a decision
in Bakke? Does constructivist coherence theory provide any guidance?
As I have tried to make clear, constructivist coherence theory is more
formal than substantive: it does not indicate a definitive "right" result
for every case. But to give a fuller illustration of how the theory
works, I can explain how I would have thought about the case within
a constructivist coherence framework.
In approaching the factors relevant to decision in Bakke, my starting point would have lain in a considered moral judgment, growing
out of our complex and generally regrettable racial history, that the
special historical character of racial injustice justifies extraordinary
correctives. 34 7 The legacy of slavery lives even today in the economic
and educational disparities between black and white Americans. Experience also has shown that the racial stratifications resulting from
past invidious discrimination will not quickly be overcome simply
34 8
through the application of race-blind law.
At the same time, my intuition is equally secure that there must

be limitations on the permissible scope even of noninvidious racial
preferences. If our racial history teaches any lesson, it is that racebased distinctions, which offend principles of moral equality and equal
opportunity, 34 9 are deeply and probably irreducibly divisive. It also
is morally relevant that the costs of affirmative action, which are far
from trivial, tend to fall less on the society as a whole than on
particular individuals. 35 0 Those who lose out on benefits that otherwise would be theirs as a result of racial preferences are surely among
those to whom equal protection is guaranteed.
Although I have identified my Bakke analysis as beginning within
the category of value arguments, I should emphasize that my strong
sense of the relationship among the factors is one of fluidity and
345 See id. at 396-402 (opinion of Marshall, J.).

346 A. BICKEL, THE MORALITY OF CONSENT 133 (975).
347 See Fallon & Weiler, supra note 324, at 32-37.
348 See id. at 33 & nn.144-45.

349 See Fallon, supra note 216, at 815-19, 836-40. Outside of truly extraordinary circumstances, these principles establish the moral irrelevance of race; they demand that the government
distribute educational opportunities and other benefits only on the basis of need, personal merit,
or achievement. See id. at 840.
350 See Fallon & Weiler, supra note 324, at 31-32, 54-67.
1987]
1275
interconnectedness. For example, my intuition that correctives are

appropriate to eliminate the remnants of prior wrongful segregation
finds corroboration in evidence that bears importantly on the framers'
intent: congressional initiatives to assist blacks, including the creation
of the Freedmen's Bureau, that were roughly contemporaneous with
the adoption of the fourteenth amendment. 35 l Similarly, my judgment
about the ultimate divisiveness of racial distinctions, and the view
that their use should be cabined rather tightly, importantly reflects
my reading of the case law. For me, coherence in the Bakke case
therefore comes easily.
In order to affirm the moral and legal value of color blindness, I
would have echoed a formulation familiar in the case law: all forms
of racial discrimination are inherently suspect and can be justified
352
only by a very important or even compelling governmental interest.
This standard is a stringent one. Nevertheless, I would have found
the interest in obliterating the tangible effects of past, race-based
injustices sufficiently compelling to support programs of affirmative
action for blacks. As noted above, this conclusion resonates with
important evidence relevant to the best formulation of the framers'
intent, especially the provision by Reconstruction congresses of special
35 3
assistance to blacks through the Freedmen's Bureau.
Having found the government's interest in rectifying past racial
injustices to be compelling, I would not have required that the
rectification 354 be predicated on the individual wrongs of the institution implementing the affirmative action program. The law itself
sanctioned slavery, frequently classified blacks as separate and inferior, and enforced private discriminations. 35 5 Value arguments therefore persuade me that the moral and political burden of rectifying
past injustices should be viewed as one fairly borne by the society as
a whole, not one that must be linked to current wrong-doing by
particular institutions. Again, however, the values on which I rely
have a foundation in judicial precedent: it is impossible to justify
"disparate impact" theories of racial discrimination, which are well
accepted in the case law, 3 56 except on the basis that past social wrongs
352 See, e.g., Bakke, 438 U.S. at 299 (opinion of Powell, J.) (formulating this standard).
Echoing another familiar formulation from the case law, I would also have concluded that an
affirmative action program, in order to be upheld, must be necessary to serve, or at least be
very closely tailored to, the justifying interest. See, e.g., id. at 299, 320.
354 See Fallon & Weiler, supra note 324, at 30 (defining rectification as "the elimination from
economic and social institutions of the presumptive incidents of past discrimination, including
racial skewings in the distribution of wealth, jobs, power, and opportunities").
355 See id. at 30-37.
356 See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 432 (197) (interpreting racial
discrimination under title VII of the Civil Rights Act of 1964 as including "the consequences of
employment practices," even when discriminatory intent is absent (emphasis in original)).
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furnish a sufficient ground for imposing remedial obligations even on

35 7
persons or institutions that currently have no culpable intent.
Although my preferred legal standard and my application of it
both grow out of a gestalt-like process of analysis in which value
arguments, as informed by my sense of the relevant history and the
lessons of the case law, play a key role, my analysis in no way ignores
arguments regarding the constitutional text or constitutional theory.
On the contrary, the historical experience, the moral and political
values, and the precedents on which I rely provide good reasons for
understanding the contestable guarantee of "the equal protection of
the laws" as embodying my preferred standard. The test that I would
apply also accords with a compelling argument of constitutional theory: the equal protection guarantee reflects a complex theory about
permissible and suspect bases for discrimination, about the governmental purposes sufficient to justify reliance on a suspect classification,
and about the burdens that fairly may be imposed on "innocents" to
rectify past race-based wrongs that were at least as much social as
individual.358
Although this is the way that I would have reasoned about the
affirmative action issue in Bakke, it is important to emphasize that
constructivist coherence theory accommodates other lines of argument.
Justice Powell, whose vote was necessary both to establish the permissibility of affirmative action in limited circumstances and to invalidate the racial quota in Bakke itself, adopted roughly the test of
constitutionality that I have advocated and aligned the factors in
nearly the same way. Justice Powell, however, rejected the argument
that there is a compelling interest in generally rectifying past societal
discrimination; 3 59 he found that the only compelling state interest in
the case was in achieving a diverse student body. 360 With the state's
interest defined in this way, Justice Powell also concluded that although racial preferences were necessary in order to attain this aim,
36 1
a rigid quota was not.
3S7 See Fallon & Weiler, supra note 324, at 20-22. Had I decided Bakke, I thus would have
upheld affirmative action preferences for blacks by relying on the simple fact of past societal
discrimination. Nonetheless, I recognize that the plaintiff Alan Bakke and other white applicants
to the medical school also had rights under the equal protection clause and should not be made
to bear an excessive burden. I would therefore have found it impermissible if, for example, the
medical school had attempted to fire tenured white teachers in order to integrate its faculty. Cf.
Wygant v. Jackson Bd. of Educ., io6 S. Ct. 1842 (1986) (holding that race-based layoffs of
school teachers, designed to maintain racial balance among faculty, are unconstitutional). The
burden of losing a job, a burden far greater than exclusion from the opportunity to compete for
positions in a medical school class, is one that could not reasonably be imposed on an innocent
individual to rectify past societal wrongs. See Fallon & Weiler, supra note 324, at 54-67.
358 See supra note 357.
359 See Bakke, 438 U.S. at 307-10 (opinion of Powell, J.).
360See id. at 311-14.
361 See id. at 315.
1987]
1277
Justices Brennan, White, Marshall, and Blackmun reached a different alignment of the various relevant arguments. In a jointly authored opinion, these Justices determined that racial classifications used
to remedy past societal discrimination should be upheld so long as
they did not "stigmatize[ ] any group or ... single[ ] out those least
well represented in the political process to bear the brunt" of the
burden. 36 2 Their analysis relied heavily on value arguments and an
interpretation of the precedents as forbidding only invidious discrimination. 3 63 Yet the joint opinion also takes a clear if implicit stance
with respect to arguments from text and of constitutional theory. In
addition, Justice Marshall, in his separate opinion, made explicit ar364
guments concerning the framers' intent.
The four other Justices who participated in Bakke never reached
the constitutional issue, because they concluded that the affirmative
action program involved in the case was forbidden by a federal statute. 36 5 Nevertheless, the possibility of yet another alignment was
demonstrated by the Supreme Court's next major affirmative action
case, Fullilove v. Klutznick, 3 66 in which Justices Stewart and Rehnquist achieved coherence among the factors in arguing that the Con36 7
stitution forbids all race-based classifications.
In light of the variety of conclusions that can be reached within
constructivist coherence theory, 3 68 the theory's value inheres in its
capacity to clarify and to systematize norms to which most constitutional lawyers have tacitly conformed all along. However adequate
our tacit knowledge of the norms of our practice generally may be,
moments of confusion and uncertainty can arise, and it is useful to
have an articulated statement of the standards to which our practice
commits us.
A final word about Bakke may also be useful. Because I have
emphasized the connectedness among the five categories of constitutional argument, it might appear that constructivist coherence theory
362 Id. at 361 (opinion of Brennan, White, Marshall, and Blackmun, JJ.). These four Justices
would also have required the remedial program to be substantially related to its justifying
purpose. Id. at 359.
363 See id. at 358-62 (discussing value arguments); id. at 355-56 (citing precedent).
364 See id. at 391, 397-98 (opinion of Marshall, J.).
36- See Bakke, 438 U.S. at 412-21 (opinion of Stevens, J., joined by Stewart and Rehnquist,
JJ., and Burger, C.J.).
366 448 U.S. 448 (1980).
367 See id. at 522-27 (Stewart, J., joined by Rehnquist, J., dissenting).
368 Although constructivist coherence theory entails no unique choice among these contending
lines of argument, some conclusions may certainly be better than others; indeed, one judgment
may be right and the others wrong. But the normative commitments needed to resolve such
substantive constitutional issues as those surrounding affirmative action go far beyond the
commensurability problem of how the different kinds of constitutional argument fit together in
a single constitutional calculus.
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responds to a false problem. Someone might argue that the categories

of argument are in fact so thoroughly interdependent that it is misleading to set them up as separate at all. The commensurability
problem therefore does not arise because it cannot; the atom of constitutional interpretation is not further reducible into particles. But
this objection is mistaken in at least two ways. First, as I shall argue
below, there clearly are situations in which the commensurability
problem does arise, 369 or at least is perceived as arising. 370 Second,
the categorization of arguments that is offered by constructivist coherence theory mirrors that of actual judicial argument in many of
the most difficult constitutional cases, Bakke among them. Justice
Powell's opinion announcing the judgment of the Court includes sections pretty clearly assessing or asserting arguments from text 37 1 and
concerning the framers' intent, 3 72 precedent, 3 73 and moral and political
values. 3 74 Arguments of theory, I would argue, are implicit in his
conclusions. The opinion jointly authored by Justices Brennan,
375
White, Marshall, and Blackmun exhibits a similar pattern.
B. Equal Protection and Brown v. Board of Education
Brown v. Board of Education3 76 exemplifies a different paradigmatic problem about the commensuration of the various types of
constitutional argument. In thinking about Brown, the point of departure for me, as I assume it was for the Supreme Court that decided
the case, lies in the conviction that the state-enforced segregation of
school children is morally and politically wrong. 3 77 Arguments from
369 See infra
pp. 1282-85.
370 Any honest originalist must recognize a deep problem about the role of precedent in our
constitutional practice. See supra pp. 1202-04, 1213.
371 See Bakke, 438 U.S. at 289-90 (opinion of Powell, J.).
372 See id. at 291-93.
373See id. at 290-91, 294-95, 300-05.
374See id. at 290-91, 298-99.
375The one exception involves the joint opinion's treatment of the framers' intent. The
jointly authored opinion of Justices Brennan, White, Marshall, and Blackmun merges its discussion of the framers' intent with arguments of precedent and argues that the equal protection
clause has not been construed to require absolute color blindness. See id. at 355-56 (opinion
of Brennan, White, Marshall, and Blackmun, JJ.). In a separate opinion, Justice Marshall
addressed the issue of the framers' intent somewhat more directly. See id. at 396-98 (opinion
of Marshall, J.).
376 347 U.S. 483 (1954).
377The moral and political reasoning was evident on the face of the Court's opinion:
education, because of its formative effect on children, "is perhaps the most important function
of state and local governments." Brown, 347 U.S. at 493. To separate children based on their
race "generates a feeling of inferiority [in black children] . . .that may affect their hearts and
minds in a way unlikely ever to be undone." Id. at 494. And to stigmatize or otherwise harm
children in this way is wrong. See Black, The Lawfulness of the Segregation Decisions, 69
YALE L.J. 421, 425-26 (I96O).
19871
1279
text and of constitutional theory cohere easily with this conclusion.

The fourteenth amendment's guarantee of equal protection of the laws
certainly will support, even if it does not require, an interpretation
that forbids racially segregated public schools. Moreover, a powerful
argument of constitutional theory would understand the equal protection clause as embodying a right to equal concern and respect that
forbids invidious discrimination. But a potential for dissonance arises
in the category of arguments from precedent. In Plessy v. Ferguson, 3 78 decided in 1896, the Supreme Court had upheld a system of
state mandated racial segregation on railroad trains and endorsed the
doctrine of "separate but equal." Even more troubling was an argument concerning the framers' intent: that the Congress that enacted
the fourteenth amendment had no specific intent to require school
desegregation 3 79 and indeed had assumed the legitimacy of separate
schools for whites and blacks. 380 The paradigm in Brown thus involves the search for constructivist coherence, and its appropriate
limits, in a case initially exhibiting a threat of dissonance among the
categories of argument.
If value arguments provide the provisional starting point in the
effort to achieve coherence, contrary arguments from precedent prove
easily surmountable. The Plessy doctrine of "separate but equal" did
purport to require substantial equality of racially segregated public
facilities. Moreover, a sequence of cases involving higher education,
although decided within the Plessy framework, had found racially
segregated schools to involve either material or "intangible" disadvantages to blacks and therefore to offend the requirements of equal
protection. 38 1 These cases furnished the Supreme Court with the
opportunity to treat Brown principally as an education case and to
conclude that "in the field of public education, the doctrine of 'separate
3 82
but equal' has no place."
The Court, however, could have taken the further step of overruling Plessy explicitly. Within the hierarchy of the categories of
constitutional argument, precedent stands close to the bottom - a
status reflecting the vulnerability of precedents to being overruled.
For overruling to be appropriate, a precedent generally must be in378 163 U.S. 537 (1896).
379 See Bickel, supra note 39. This also is the conclusion of Raoul Berger, cited in note 39
above, at 17-33. On this point not even Berger's sharpest critics have challenged his conclusion.
See, e.g., Perry, supra note 5, at 292 n.131.
It is a separate question whether the framers of the fourteenth amendment had a specific
intent not to require school desegregation. For an argument that there is insufficient evidence
to establish that they had such an intent, see text accompanying notes 390-94 below.
350 See R. BERGER, supra note 39, at 117-33.
381 See Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Oklahoma State Regents, 339
U.S. 637 (195o); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938).
382 Brown, 347 U.S. at 495.
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compatible with strongly determined arguments from text and of constitutional theory and with a tenable construction of the framers'
intent. In Brown, the value arguments that infused the categories of
arguments from text and of constititional theory very arguably would
have justified an overruling.
The main sticking point in Brown, and the principal source of
continuing interest in the case for constitutional theory, involved the
framers' intent. As noted above, it is plausible to view Congress as
having had no specific intent to require school desegregation when it
enacted the fourteenth amendment. 383 In his opinion for the Court
in Brown, Chief Justice Warren disposed of the intent issue somewhat
summarily. The historical sources regarding the framers' intent "cast
some light," he wrote, but "[a]t best, they are inconclusive. '384 Although compatible in principle with the constructivist coherence methodology, this treatment of the framers' intent is too cryptic to command much credence. It appears, however, that there are at least
two bases on which the framers' intent might be viewed as capable
of cohering with the result indicated by the arguments from other
constitutional categories. First, the framers' intent could be specified
in abstract terms as, for example, the intent to embed within the
Constitution the principle that blacks may not be unreasonably and
substantially disadvantaged by state legislation, 3 85 or, more generally,
that no citizen may be denied equal concern and respect by state
3 86
authorities.
An alternative theory, which would equally justify and perhaps
better explain the Court's result, was articulated by Professor Alexander Bickel, who, as a Supreme Court law clerk at the time that
Brown was argued, wrote a memorandum on the legislative history
of the fourteenth amendment that Justice Frankfurter circulated to

384 Brown, 347 U.S. at 489.
385 See Black, supra note 377, at 421.
386 Cf. R. DWORKIN, MATTER OF PRINCIPLE, supra note 26, at 48-49. Dworkin states:
Suppose a congressman votes for an amendment requiring "equal protection" because he
believes that government should treat people as equals, and that this means not treating
them differently with respect to their fundamental interests. He believes that the clause
he votes for would be violated by criminal laws providing different penalties for black
[sic] and whites guilty of the same crime, for example, because he believes that liability
to punishment touches a fundamental interest. But he also believes that separate and
unequal public schools would not violate the clause, because he does not consider education to be a fundamental interest. Once again we can distinguish an abstract and
concrete formulation of his intention.
Under the former he intends that whatever is in
fact a fundamental interest be protected, so that if a court is itself convinced that

education is (or perhaps has become) a fundamental interest, that court must believe it
is serving his intention by outlawing segregation. But under the latter, concrete, formulation his intention is to protect what he himself understands to be a fundamental
interest, and a court that abolishes segregation opposes rather than serves his intention.
19871
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the entire Court. 38 7 After hearing oral argument in Brown and taking
the case under submission, the Supreme Court set the case for reargument and requested special briefing on two issues. The Court
queried first whether Congress and the state legislatures contemplated
that the fourteenth amendment would abolish segregation in the public
schools. 388 The Court then asked, as a separate question, whether
the framers anticipated that, even if segregation were not abolished
immediately, the courts would have the power under future conditions
to hold segregation unconstitutional. 38 9 In response to this latter question, Bickel concluded that it was at least plausible that the framers
deliberately chose language capable of supporting a gradual expansion
390
of the jurisprudence of equality.
With the radical Republicans in the thirty-ninth Congress preferring sweeping and explicit guarantees for blacks, and the moderates
preferring an approach that was socially and politically more conservative, Bickel suggested that the general and expansive language of
the equal protection clause may have reflected a compromise - one
that permitted moderate Republicans immediate defense against
"alarms raised by the opposition [against the abolition of segregation],
but which at the same time was sufficiently elastic to permit reasonable future advances." '39 1 Bickel's hypothesis was only a hypothesis
- sufficiently doubtful, he judged, so that if the equal protection
clause were part of a statute, the supporting evidence would not be
strong enough to sustain his theory. 392 But in light of the other factors
bearing on the decision in Brown, Bickel judged his hypothesis plausible enough to justify the conclusion that the framers' intent, for the
Court's purposes, fairly could be termed "'inconclusive.'
3 93
It was
crucial to his judgment that this conclusion allowed escape from an

otherwise intractable dilemma:
Had the Court in [Brown] stopped short of the inconclusive answer
to the second of its questions handed down at the previous term, it
would have been faced with one of two unfortunate choices. It could
have deemed itself bound by the legislative history showing the immediate objectives to which section I of the fourteenth amendment
was addressed, and rather clearly demonstrating that it was not expected in 1866 to apply to segregation. The Court would in that event
also have repudiated much of the provision's "line of growth" ....
Secondly, the Court could have faced the embarrassment of going
387See R. KLUGER, SIMPLE JUSTICE 653-54 (1976).
388See Brown, 345 U.S. at 972-73.

39 See id.
390 See Bickel, supra note 39, at 63.
391Id. at 6i.
392 See id. at 59.
39-Id. at 63 (quoting Chief Justice Warren).
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counter to what it took to be the original understanding, and of

formulating, as it has not often needed to do in the past, an explicit
theory rationalizing such a course. The Court, of course, made neither
choice. It was able to avoid the dilemma because the record of history,
properly understood, left the way open to, in fact invited, a decision
based3 9on
the moral and material state of the nation in 1954, not
4
1866.
Although Bickel's argument provides general support for the approach to questions of the framers' intent that is modelled by constructivist coherence theory, his defense of Brown illuminates an issue of
general importance within our constitutional interpretive practice: the
extent to which we can properly allow arguments within one category
of constitutional argument to affect conclusions within another. To
say that interdependences among the categories exist, and that our
practice encourages their exploitation, is not to say how far the influence of arguments within one category should be allowed to extend
into another. In Brown, the Court seems to have stayed well within
the bounds of permissibility in holding evidence of the framers' intent
to be too "inconclusive" to determine the issue before it, despite the
prima facie plausibility of the conclusion that the framers had a
relatively clear specific intent beyond which they meant to authorize
no judicial invalidations of settled social practices. But the problem
of how far conclusions may appropriately be adjusted in order to
achieve coherence is a general one; it would be possible to cite instances of more doubtful adjustments of conclusions within one category to accord with the results prescribed by others. It is in part
because Brown exposes this general issue that it deserves to be treated
as a paradigm case.
C. The ConstitutionalLaw of Slavery
Constructivist coherence theory is largely a theory about the potential for attaining coherence that results from connectedness among
the categories of constitutional argument. But the theory is also one
about hierarchy and constraint. When arguments from text and from
the framers' intent prove resistant to accommodation, their hierarchical authority demands recognition. And while the range of permissible
accommodations is broad, the hierarchical ordering of categories of
argument presumes that there are limits. Some arguments, some
attempts to reach equilibrium, transgress the outward bounds of colorable argument.
Within any particular era, debates over the permissible limits of
accommodation are likely to focus on a relative handful of cases or
issues. A contemporary example, to which I have alluded already,
394
Id. at 64-65.
1987]
involves the death penalty.39 5
1283
On the one hand, textual evidence
suggests that the Constitution sanctions death sentences, at least in

some circumstances; evidence of the framers' intent equally supports
this view. 3 96 On the other hand, forceful arguments against the death
penalty can be developed within the fair argumentative bounds of due
process and eighth amendment jurisprudence. 397 Thus comes the
debate. Some believe that arguments against capital punishment,
founded largely on the due process or cruel and unusual punishment
clauses but also relying on implicit or explicit arguments of value, can
either proceed independently of or prevail over arguments rooted in
textual provisions that contemplate capital punishment. Others contend that arguments to this effect are simply out of constitutional
bounds - illegitimate in their underlying assumption that value arguments against capital punishment can be allowed to defeat the
contrary, textually enshrined judgment of the framers. 3 98
Precisely because there is no consensus about where the boundaries
of permissible argument lie in cases that are at the center of contemporary controversies, it may help to recur to history for a relatively
clear yet instructively painful example of how the implicit rules of our
constitutional practice can exclude arguments and results that have
compelling moral foundations. The problem to which I refer involves
the constitutionality of chattel slavery under the original Constitution.
As initially drafted and ratified, the Constitution implicitly recognized the institution of slavery. Although the terms "slave" and "slavery" were nowhere mentioned, article I forbade Congress to prohibit
the "Importation of such Persons" before I8o8, 39 9 and article IV contained a "fugitive slave clause. '40 0 These provisions represented the
outcome of hard bargaining at the Constitutional Convention. 40 1
395See supra pp. 1225-26.
396See supra note 184.
397See, e.g., C. BLACK, supra note 184.
398See, e.g., Furman v. Georgia, 408 U.S. 238, 405-14 (1972) (Blackmun, J.,dissenting).
399Article I provides - without any further reference to who "such Persons" were - that
the "Migration or Importation of such Persons as any of the States now existing shall think
proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight
hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten
dollars for each Person." U.S. CONST. art. I, 9, cl.i.
400
No Person held to Service or Labour in one State, under the Laws thereof, escaping into
another, shall, in Consequence of any Law or Regulation therein, be discharged from
such Service or Labor, but shall be delivered up on Claim of the Party to whom such
Service or Labour may be due.
U.S. CONST. art. IV, 2, cl.3; accord U.S. CONST. art I, 2, cl.3 (distinguishing between
"free Persons" and "other Persons" in providing for apportionment of states' representation in
the House of Representatives).
401 See M. FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED
STATES 14752 (1913); E. MORGAN, THE BIRTH OF THE REPUBLIC 1763-1789, at 141-42 (1956).
1284
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[Vol. lOO:1189
Nothing now seems clearer than that slavery was a monstrous

moral wrong. Moreover, even under the original Constitution, it was
possible to develop arguments of constitutional theory that would have
rendered slave-holding unconstitutional. 40 2 Professor Dworkin, for example, has suggested, although apparently not endorsed, a theoretical
basis on which a conscientious judge might have held slavery unconstitutional under the Constitution as it existed prior to the Civil War.
According to Dworkin, "[t]he general structure of the American Constitution presupposed a conception of individual freedom antagonistic
to slavery." 40 3 Relying on this argument, Dworkin believes that the
constitutional provisions relating to slavery conceivably could have
been dismissed pursuant to the "theory of mistakes"40 4 that must be
405
btiilt into any plausible constitutional theory.
Constructivist coherence theory mandates the opposite result. Although it is a blight on the record of American constitutionalism that
the original Constitution countenanced slavery, the language is sufficiently clear. The history of the framers' intent will bear no other
meaning. And in contrast with the current controversy over the constitutionality of the death penalty, prior to the Civil War amendments
there was no clear provision of the federal Constitution on which a
402 One attack issues directly from the natural law tradition. For example, the abolitionist
Lysander Spooner relied largely on the interpretive canon that "all language must be construed
strictly in favor of natural right." L. SPOONER, THE UNCONSTITUTIONALITY OF SLAVERY 2122 (1845). Deploying this principle of construction, Spooner rejected any interpretation of
constitutional language that would have reconciled slavery with the Constitution. See id. at
22-23.
403 Dworkin, The Law of the Slave Catchers, 1975 TIMES LITERARY SUPPLEMENT (London)
1437 (reviewing R. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS
(1975)).
404 Dworkin discusses the general "theory of mistakes" in TAKING RIGHTS SERIOUSLY, supra
note 37, at 121-23.
405 Dworkin, supra note 403, at 1437. Dworkin's cryptic suggestion to this effect does not
seem consistent with his nearly contemporaneous argument, published in 1975 in the Harvard
Law Review and later reprinted in Taking Rights Seriously, cited in note 37 above, that a theory
of mistakes, which is most important with respect to judicial precedents, must be much more
modest in its approach to constitutional provisions. In dealing with constitutional provisions,
Dworkin argued that a theory of mistakes must distinguish between a provision's "gravitational
force" - its capacity, because of the weight of the principles that support it, to influence the
results in cases in which it is not literally applicable - and its "enactment force," which defines
the minimal reach that it must possess in order for its status as positive law to be respected.
See R. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 37, at 121-23. Lack of fit with the
best political theory explaining the Constitution as a whole could provide a reason for denying
much gravitational force to the provisions countenancing slavery, but it would seem a minimal
entailment of their enactment force, which a conscientious judge would be required to respect,
that slavery could not simply be unconstitutional. For an example of a constitutional theory
that would allow judicial rejection even of clear constitutional text, see Murphy, cited in note
283 above, at 754-56, who argues that constitutional amendments would be unconstitutional if
they departed too far from the moral and political understandings embedded in the basic
document and its surrounding traditions.
1987]
1285
judicial ruling of slavery's unconstitutionality plausibly could have

been based.
This argument concerning the pre-Civil War status of slavery
within a constructivist coherence framework should not be pressed
too far. In particular, the question of the constitutionality of slavery
per se should not be confused with the much harder issue of whether
the notorious Fugitive Slave Acts 40 6 reasonably could have been held
unconstitutional by a conscientious Supreme Court justice. 40 7 But the
problem of slavery under the original Constitution, however narrowly
that problem is defined, makes the point: though often it will support
avoidance of constitutional conclusions that are morally objectionable,
a constructivist coherence approach to the commensurability problem
does not presuppose, falsely, that the Constitution is morally perfect.
Although constructivist coherence theory generally has the salutary
effect of blurring the distinction between legal reasoning and moral
reasoning by giving value arguments an explicit place in the constitutional calculus, the problem of slavery under the original Constitution poses the limiting case.
Although the result may seem harsh, constructivist coherence theory clarifies the ultimate issue for conscientious judges within our legal
culture. In a case in which the Constitution's language and history
clearly embody a judgment that now appears morally odious, the issue
is only in the first instance one about what the norms of our practice
of constitutional interpretation will permit. The ultimate issue involves the relationship between legal duties and moral duties, between
justification within a practice and justification of the practice itself.
VII. CONCLUSION
Constitutional scholarship has given remarkably little attention to
the commensurability problem - the problem of how different kinds
of constitutional argument are appropriately combined and weighed
against each other within our constitutional practice. The significance
406
Act of Feb.
12,
1793, ch. 7, i Stat. 302; An Act to amend and supplementary to the Act
entitled 'An Act respecting Fugitives from Justice, and Persons escaping from the Service of
their Masters,' 9 Stat. 462 (I85O).

407 Among the issues presented by the Fugitive Slave Acts, at least in some cases, was
whether the legislation deprived alleged fugitives of minimally fair proceedings under the due
process clause and violated the alleged fugitives' constitutional rights both to confront witnesses
and enjoy the benefits of trial by jury. See R. COVER, supra note 403, at 159-91. During the
I84os and 185os, however, the Supreme Court upheld the constitutionality of the Fugitive Slave
Acts on at least four occasions. See Ableman v. Booth, 62 U.S. (21 How.) 5o6 (I859); Moore
v. Illinois, 55 U.S. (14 How.) 13 (1855); Jones v. Van Zandt, 46 U.S. (5 How.) 215 (1847); Prigg
v. Pennsylvania, 41 U.S. (6
Pet.) 539 (1842).
For modern discussions of the constitutional
questions raised by the Fugitive Slave Acts, see R. COVER, cited in note 403 above, at 159-91;
Dworkin, cited in note 403 above, at 1437.
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[Vol. lOO:118 9
of this problem is self-evident. Judges and lawyers in our constitutional practice commonly rely on at least five different kinds of arguments - arguments from text, the framers' intent, constitutional
theory, precedent, and moral and policy values. How are these different kinds of arguments related to each other? Are all entitled to
influence in every case? Which take precedence in cases of conflict?
Questions such as these need answers if we are to understand what
we do and ought to do as constitutional lawyers.
Little previous writing has addressed the commensurability problem directly, and this essay has thus had several purposes. The first
has been simply to frame the relevant issues more clearly than has
been done before. The second has been to demonstrate that the
responses of leading constitutional theories are inadequate. The third
has been to commend a methodological stance toward the problem
that blends descriptive and normative analysis. And the fourth has
been to identify the solution that is implicit in our actual practice.
The solution, which I call constructivist coherence theory, has two
aspects. The first relies on the central conceptual idea of constructivist
coherence: the notion that the various types of argument function not
autonomously but interactively. The constructivist coherence approach assumes that, even when a tentative assessment of arguments
within various categories suggests a conflict among prescribed results,
the balance of competing arguments frequently can be reconsidered
in a successful effort to achieve a uniform prescription. Sometimes,
however, the strongest arguments within the different categories will
point irreversibly to different conclusions. In such cases, the theory's
second aspect comes into play. The implicit norms of our constitutional practice, I have argued, require that the claims of the different
kinds of arguments be ranked hierarchically.
Constructivist coherence theory, which undertakes to identify the
implicit rule-like structure that underlies our constitutional practice,
provides a framework for those puzzled about how different kinds of
constitutional argument fit together. Others, perhaps less puzzled,
may produce different answers to the questions that I have raised. I
do not, in conclusion, wish to undermine my own constructive argument. But I do want to emphasize the larger significance of the
questions advanced by this essay. Though long ignored, the commensurability problem demands the thoughtful attention of anyone who
wishes to engage in constitutional argument.

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law has a commensurability problem. The

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tutional provisions or the constitutional text as a whole; arguments

2 io6 S. Ct. 3159 (1986).

BLACK, A CONSTITUTIONAL FAITH 45 (1968).

But it would have diverged from the provisional conclusion derived

the possibility of there being "incommensurable" scientific "theories," "paradigms," "frameworks,"

incommensurability of particular conceptions of what certain kinds of constitutional argument

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decision in hard cases - cases made hard by the actual or apparent

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constitutional practice accord the foremost authority to arguments

I. A TYPOLOGY OF CONSTITUTIONAL ARGUMENT

crucial, both to my own theory and to my criticisms of those of others.

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CONSTR UCTIVIST COHERENCE

meaning requires a reader as well as a text, or that readers inevitably

One further complication needs discussion. Beneath the general

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"general" or "abstract" intent. Specific intent involves the relatively

jective of prohibiting prior restraints on publication. 38 This, in other

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C. Arguments of Constitutional Theory

44 See id. at 102-03.

RELATIONSHIP IN CONSTITUTIONAL LAW (I969).

Although Mill's ON LIBERTY (D. Spitz ed. 1975) made no reference to

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55 I am, in short, deeply skeptical of claims that an interpretivist methodology makes it

rid of troublesome decisions, and a broad one for taking advantage

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Nevertheless, a significant latitude exists for good faith argument and

For criticisms of this

Although various other definitions would be possible, I shall use

To make these claims somewhat more concrete, it may help to

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contestable concept "properly" applies therefore requires the conscious

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would be one in which a judge or theorist simply asserts her own

INADEQUACY OF TRADITIONAL THEORIES

The problem of commensuration or cumulation of the various

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[Vol. ioo:i i89

Interpretivism's intellectual attractiveness derives from two closely

CONSTR UCTIVIST COHERENCE

Without further refinement, however, interpretivism is ambiguous

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the fourteenth amendment on the issue of affirmative action).

1- See, e.g., Steagald v. United States, 451 U.S.

217 & n.Io (I98i); Payton v. New

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Nor can the problem be avoided if the moderate interpretivist

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Ely finds judicial review problematic in a political democracy. 13 4 He

amendment and the privileges and immunities and equal protection

Ely's is a privileged factor theory, in which the privileged factors

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cases, the second and functionally more important factor is that of

36. But cf. id. at 16 ("It would be a mistake ...

(Ig8I); Tribe, The Puzzling Persistence of Process-Based