Question: Can one approach the Constitution with a unified theory?
Well a unified field theory of all of constitutional law is something that I think is not only beyond my capacity, but inherently unattainable. Because there are contradictory strands in the Constitution. It is not a document which expresses sort of the ideal form of government. It’s a document that contains a number of problematic compromises. And giving meaning to those compromises is a task which is really quite different from designing an ideal Constitution. I’ve worked with people like Nelson Mandela in helping to write the Constitution of South Africa; the … Hovel Government in the Czech Republic; quite recently with the political parties in the Ukraine. And when you’re writing a constitution or helping someone write a constitution to express their values, their national character, you have a bit more freedom; not so much me as the midwife of the process, helping technically; but those who are engaged in the actual writing are projecting a future. I do think the task of a judge is far more modest. And the task not only of a judge, but of any public official bound by the Constitution. It’s an interpretative task. What does this Constitution mean? I can’t pour into it things that aren’t really there. I do think that at the same time, I think, to pretend that it’s meaning can be made transparent to you in the way a mathematical truth can so that you know what it means beyond argument, is a kind of hubris that I can’t understand. When justices say, or scholars say, “This means what it meant to the people who wrote it and who ratified it. And I can figure out exactly what that was, and it’s my job to simply enforce that passively.” I ask myself, “Who are they kidding?” They’re certainly not fooling the informed public which understands that powerful element of subjectivity has to go into deciding what did it mean to the people who wrote it? At what level of generality should I define its meaning? Was it a principle or rule? How do I give it meaning that isn’t what I want, but what it intrinsically means? People think that can be done in the way a DNA test can be performed, or the way you can prove the Pythagorean theorem. They’re certainly not fooling the public, at least not the informed, thinking public. They’re not fooling themselves either. Antonin Scalia is too smart to really think that he is simply a passive vessel for a truth someone else came up with. So I suppose for me the central element of the judicial philosophy is an element of candor; a degree of modesty about what you can achieve; a sense of limits about what your role is; but an avoidance of the false shackles that you think you can get by chaining yourself to some simplistic notion like original meaning. Yes I think it is the task of a judge in interpreting a document to take seriously what its original meaning was. But since we can’t ever know fully what that was, or at what level of generality you define it; and since the original meaning in many cases was something that was entrusted for the future, the very reason that broad language might have been chosen or the equal protection, or the free speech clauses, or the liberty clauses; the very reason that they spoke at that level of generality rather than saying, “Government may not take race into account when making decisions” was that they were part of a dynamic system in which they understood that others informed by history, surrounded by their culture, would do their best to give concrete content to general ideas. And a judge who is doing her job or his job I think has to see that as the task, and to be candid about the degree to which it is not simply mechanical. I think that judges who pretend that they are exercising a scientific, passive task, and that their own values and beliefs are going to be set aside are really engaged in a public disservice. And in confirmation hearings, when you hear judges say, “Well that’s my philosophy, but of course it would have nothing to do with how I decide cases . . .” Any judge who really believed that does not have a subtle enough mind to be trusted with something as important as the U.S. Constitution. Judges have to realize and be humble about the fact that they cannot keep . . . they cannot possibly keep their personal lives, their experiences out of the way they understand a document like the Constitution.