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In Defense of Unprincipled Decisions

In 1959, Herbert Wechsler rocked the legal world with the radical proposition that judges should do things for reasons.  Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).  More specifically, he argued that constitutional decisions should be based on generally applicable neutral principles; not on the result in individual cases, and not on vague mumbo jumbo.  Wechsler held up Brown v. Board of Education, 347 U.S. 483 (1954), the landmark school desegregation case, as a textbook example of unprincipled decision-making. 

 

Wechsler's approach shares a lot with the preference for bright line rules over indefinite standards, a preference that Justice Antonin Scalia passionately advocated during his time on the Supreme Court.  In short, Wechsler advocated for reasons; Scalia advocated for especially reason-y reasons.  Scalia held up Roe v. Wade, 410 U.S. 113 (1973), the landmark abortion rights case, as a textbook example of unruly decision-making.

 

Wechsler's view, and increasingly Scalia's, has become the orthodoxy in legal thought, in theory if not always in practice.  After all, if you have the option of being less reasoned or more reasoned, what defense is there of the former?

 

I want to briefly sketch that defense.  Because it is, in essence, a defense of the common law. 

 

In cases challenging the status quo, a judge will often perceive that there is a problem in the status quo far more readily than she will be able to fully and unassailably articulate the reasons why it is a problem.  Often too, the reasons justifying the rights of an outsider to the status quo will not jive with the reasons of the status quo, and so may not appear to be "reasons" at all.  In a common law legal system, when that happens, we do not throw the baby out with the bath water.  Instead, the judge writes a decision giving as much of the reason why as possible, and rules in favor of the side she believes the law supports, even if she cannot articulate the reasons supporting that decision to a degree of academic satisfaction.  Later decisions in similar cases flesh out the reasoning, and if it bears fruit extend it; if it reveals itself as a dead end, abandon it.

 

Insisting on refined bright lines from the get-go will often stifle that journey of discovery before it begins.  It is a powerful thumb on the scales in favor of the status quo.  If we are serious about the law as an instrument of justice, not merely of the status quo, then encouraging that sort of exploration is vital.

 

Some would say in reply that the Constitution is like a statute, not the common law.  And so the logic of the common law has no place in constitutional interpretation.  I think that is wrong both historically and practically.  Historically, the Framers drafted the vague, chimeric document they did intentionally, because deferring many of the hard values questions to future generations was the only way they could all agree on a single document.  Practically, unlike with a statute, there is no reasonable prospect of punting the Constitution back to Congress so they can do it right this time.  To give it effect, we must find a way to work with the imprecise tools it gives us.  In this way, the Constitution sits at a crossroads between common law and statute.  A theory of interpretation that privileges the one to the exclusion of the other runs the risk of weakening the foundational document of our Republic.

 

I sympathize with Weschler's and Scalia's concerns.  But there is another side to the story.

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