As suggested in a prior post, the British comedy troupe Monty Python is generally under-acknowledged for its jurisprudential insights. ?Nonetheless, these are occasionally quite sharp. ?Here, for instance, in the ?The Argument Clinic:? we have a demonstration of a basic form of argument (or pseudo-argument) often seen in law?to wit, the contradiction:
Now, one might reasonably think that this is just British comedy. ?But there is more to it than that. ?There is a jurisprudential question lurking and here it is: Just how much of legal argument comes down to little more than an extended (occasionally confused) form of the Argument Clinic? ?(Yes, it does/No it doesn?t.)
Now, for those of us involved in legal studies, we would like to believe that the Argument Clinic is a rare and aberrational phenomenon. ? We would like to believe that there is a whole lot more to legal argument than the Argument Clinic. ?And yet? notice two things: ?1) what this ?more? might be is often elusive and 2) a dispiritingly large number of legal disputes, when pressed hard enough, actually do come to resemble the Argument Clinic.
For instance, consider constitutional law. ?There we find an ongoing national salon of arguments about what the Constitution means. ? Take the simple question of whether the Constitution ought to be interpreted for what it is or what it ought to be. ? At first, one is tempted to say that it should be interpreted for what it is. ?But then a pause?. ?And a thought taking shape: ?What if? ?What if ?what it is? (i.e the Constitution) turns out to be, at least in part, an aspiration or ?a command to make it what it ought to be? ?Ouch. ? And from there, the professionally respectable possibilities proliferate:
what the Constitution ought to be is of no bearing on what it is. ?See,?Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. Rev. 353, 396 (1981).
what the Constitution ought to be ought to have no bearing on what it is.??See,?Robert H. Bork, The Tempting of America: The Political Seduction of the Law 176 (1989)?
what the Constitution ought to be is of some bearing on what it is. ?See,?Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1231-37 (1987).
what the Constitution ought to be is determinative of what it is. ?See, Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410, 435 (1993).
what the Constitution is always already becoming what it ought to be.??See, Ronald Dworkin, Law?s Empire 413 (1986).
what?the Constitution is something that can never become what it ought to be.?See, Jacques Derrida, Force of Law: The ?Mystical Foundation of Authority,? 11 Cardozo L. Rev. 919, 947 (1990).
Faced with this embarassment of choices, some people suggest that the right approach is to adopt a ?strict interpretation? of the Constitution. ? But this, of course, is of no help whatsoever?at least not if one thinks about it. ? Presumably everyone is willing to interpret?what?they see?as the Constitution strictly. I?m sure C.J. Marshall was being very strict in his interpretation of the constitution when he said, in?McCullough v. Maryland??that only ?its broad outlines? are laid out. ?And I?m equally sure he was equally strict in interpreting these broad outlines.
See, the thing of it is: The strict/loose distinction or the judicial activism/judicial restraint distinction just doesn?t get you anywhere unless you?ve first identified the baseline understanding of what the constitution is: ?If anyone interprets the constitution in the manner of a ?legal code? when the constitution is in fact a set of ?broad outlines,? they are (perhaps much to their surprise) engaged in judicial activism and loose interpretation.
The problem is that the crucial disagreement?one obscured by all the ?interpretive theory brouhaha?is about the identity of the constitution?itself. ? It?s a dispute over constitutional ontology. ? Specifically: What is it? ? Is it a legal code? ?A set of broad outlines? ?A rule-book for government? ?A transgenerational aspirational ought with attitude? ?Something else? ? Few people want to face up to this brute question of constitutional ontology. ?Why? ? Because facing up to the question turns all the fancy interpretive disputes into an impossible and inconclusive constitutional version of the Argument Clinic.
The constitution is X.
No it?s not.
Yes it is.
And so on?except with infinitely more intermediate steps. ?I will not spin out the possibilities here, but they can be found in my article?Hiding the Ball?or in a tiny essay entitled ?Beyond Interpretation? which is deeply buried in the ether of Studies in Culture, Law and the Sacred (Volume 5).
I?will however, lay out a few helpful diagrammatic hints of how it all works. ?When all is said and done (that is to say, after all the sophisticated constitutional exegesis is completed) constitutional legal scholars would like their interpretive theory to look like this:
Constitution ??-> Authoritative Meaning
Unfortunately, much of the time, the theory ends up looking like this:
Or like this:
Or, to add a dynamic dimension, like this:
To my conlaw students, pay no attention to any of this whatsoever.
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