Against the law

AGAINST THE LAW CONSTITUTIONAL CONFLICTS A Series by the Institute of Bill of Rights Law at the College of William and Mary Edited by Rodney A Smolla and Neal Devins » G) » Z en I THE Paul F Campos • Pierre Schlag· Steven D Smith DUKE UNIVERSITY PRESS DURHAM AND LONDON 199 © 1996 Duke University Press All rights reserved Printed in the United States of America on acid-free paper 00 Typeset in Minion by Keystone Typesetting, Inc Library of Congress Cataloging-in-Publication Data appear on the last printed page of this book CONTENTS Preface vii Acknowledgments ix Introduction A Heterodox Catechism WAITING FOR LANGDELL I 15 Normativity and the Politics of Form 29 Nonsense and Natural Law 100 Against Constitutional Theory 116 WAITING FOR LANGDELL II 141 Idolatry in Constitutional Interpretation 157 Secular Fundamentalism 191 WAITING FOR LANGDELL III 203 Clerks in the Maze 218 Notes 237 Index 271 PREFACE I T WAS STEVE'S idea It was Pierre's organization It was Paul's passion And so this book-a product of a rather odd and improbable combination of authors-came together There were doubts throughout Steve was concerned that the relentlessly critical tone of the book would be damaging He worried half seriously, half in jest, that a conservative thinker would become associated in a joint enterprise with one of the most irreverent and intellectually radical (if not nihilistic) thinkers on the contemporary American legal scene Indeed, he had already received negative and cautionary reactions from older, wiser colleagues at another law school: "Stay away from those street toughs." Pierre too was concerned He had been told not to publish with the other two Yet here he was publishing with one of the most conservative (if not reactionary) constitutional thinkers in American legal thought He was told that this would be deeply confusing to readers And he worried that the book would simply be exhibit A in the usual left or liberal charge that ultraintellectualism is simply neoconservatism by any other name Paul, who refused to divulge his political orientation to anyone (including the other two authors), didn't worry at all And all three of us decided to go forward with the book One reason, of course, was a shared sense of the deadening quality of contemporary political orthodoxies and their disputes In some sense, each of us has been unwilling to simply toe the line of any political orthodoxyreactionary, conservative, liberal, or radical None of us seems to be very good at being a foot soldier And being in Colorado, we are much too far away from anywhere to feel the civilizing effects of the great institutions A second, perhaps more profound reason is that despite our widely different political visions, there are certain things we share in common-certain understandings of the shortcomings of American legalism We all think that legalism is aesthetically, ethically, and intellectually lacking in rather profound ways viii Preface And we all think that it is important to point this out in the most ecumenical manner possible Hence, this book Oddly, perhaps-and certainly against the odds-we have looked on our widely disparate political and intellectual inclinations as an advantage We very much hope that we are not the only ones Paul F Campos Pierre Schlag Steven D Smith Boulder, Colorado ~ovemberl,1995 ACKNOWLEDGMENTS W the many friends and colleagues who have contributed to this book We give special thanks to Sandy Levinson for suggesting and conducting the interview, "Waiting for Langdell," and to Leonard Levy for graciously acquiescing in our use of the same title he used in his book, Against the Law Different versions of the essays in this book have appeared in various law reviews and are published here with their permission Pierre Schlag, "Normativity and the Politics of Form," 133 U Pa L Rev 801 (1991); Paul Campos, "Against Constitutional Theory," Yale J L & Human 279 (1992); Steven Smith, "Idolatry in Constitutional Interpretation," 79 U Va L Rev 583 (1993); Pierre Schlag, "Clerks in the Maze," 91 Mich L Rev 2053 (1993); Paul Campos, "A Heterodox Catechism;' 11 Canst Comm 65 (1994); Paul Campos, "Secular Fundamentalism," 94 Colum L Rev 1814 (1994); Steven D Smith, "Nonsense and Natural Rights;' S Cal Interdisciplinary L Rev 000 (1995) E WISH TO THANK 264 84 85 86 87 88 89 90 91 92 93 94 95 96 Notes to Idolatry in Constitutional Interpretation See Adrian Fortescue, "Images:' in The Catholic Encyclopedia (1910), 7:664 See ibid at 671: "The sign in itself is nothing, but it shares the honour of its prototype [AlII the outward marks of reverence, visibly directed towards the sign, turn in intention towards the real object of our reverence-the thing signified The sign is only put up as a visible direction for our reverence, because the real thing is not physically present:' Protestants have typically regarded this sort of lapse as common and perhaps inevitable, whereas Catholics have taken a different view Compare Paul Tillich, A History of Christian Thought (1968), 89: "The icons deserve veneration and not adoration However, in popular understanding veneration always develops into adoration," with Fortescue, supra note 84: "Nor is there any suspicion that the people, who were unconsciously evolving this ritual [of bowing to and kissing religious images J, confused the image with its prototype [IJt is inconceivable that anyone, except perhaps the most grossly stupid peasant, could have thought that an image could hear prayers, or anything for us (at 668) For a discussion of the theological arguments about icons that divided Eastern and Western Christianity, see Jaroslav Pelikan, The Christian Tradition: A History of the Development of Doctrine (1974), 2:91-145 See Eire, supra note 83, at 19 Carlos Eire emphasizes that hostility to what they saw as idol worship was an essential part of the program of Protestant reformers such as Zwingli, Calvin, and Karlstaadt; Luther was more accommodating on this point See, generally, Eire, supra note 83 Holmes, supra note 52, at 40 For a description of Aquinas's natural law jurisprudence, see Lloyd L Weinreb, Natural Law and Justice (1987),53-63 Compare Campos, supra note 22, at 309 (suggesting that modern constitutional theory reflects "the human need for some semblance of communion with the divine") But cf Posner, supra note 29, at 8u: "Most canons of statutory construction go wrong because they impute omniscience to Congress." Compare Pierre Schlag, "The Brilliant, the Curious, and the Wrong:' 39 Stan L Rev 917, 918 n (1987): "Dworkin insists that interpretation 'seeks to make of the material being interpreted the best it can be: My thought is that one can learn much from developing the least attractive interpretation" (citations omitted) Dworkin, supra note 5, at 225; d Bruce Ackerman, "Constitutional Politics/Constitutional Law," 99 Yale LI 453, 459-60 (1989) (favoring "synthetic interpretation" that would treat the Constitution as a "principled doctrinal whole") The power of this monistic approach is apparent in Suzanna Sherry's review of Ackerman's recent book Although highly critical of most of Ackerman's analysis, Sherry finds Ackerman's discussion of "synthetic" interpretation to be the one appealing part of the book See Suzanna Sherry, "The Ghost of Liberalism Past," 105 Harv L Rev 918, 920-23 (1992), reviewing Bruce Ackerman, We the People, vol (1991) However, not all theorists favor this artificially unified approach to constitutional interpretation See Tribe and Dorf, supra note 16, at 20-30 (criticizing "hyper-integration" in constitutional interpretation) Plato, Republic, bk 2, 378c-e, trans Paul Shorey, in The Collected Dialogues of Plato, ed Edith Hamilton and Huntington Cairns (1961), 575, 625· See Alexander M Bickel, The Least Dangerous Branch (1962), 23-28; Bork, supra note 5, at 143-60; Ronald Dworkin, A Matter of Principle (1985), 33-71; Wechsler, supra note 3; see also Ackerman, supra note 94, at 525 (the Constitution provides "a rich lode of principle") Notes to Idolatry in Constitutional Interpretation 97 98 99 100 101 102 265 Perry, supra note 33, at 690 (emphasis added) See, e.g., Bork, supra note 5, at 75-76; Dworkin, supra note 5, at 360; Tribe and Dorf, supra note 16, at 12-13 See, e.g., Bork, supra note 5, at 76; Dworkin, supra note 5, at 381-92; Tribe and Dorf, supra note 16, at 13 See supra notes 3-5 and accompanying text Tribe and Dorf, supra note 16, at 13 See, e.g., Ronald Dworkin, Taking Rights Seriously (1977),135-37; Perry, supra note 33, at 69598 103 104 105 106 107 108 109 110 111 112 It may be, for instance, that principles are explicitly expressed in the Fourteenth Amendment Compare Ackerman, supra note 94, at 522 (pointing out that the amendment's "first paragraph speaks the language offundamental principle") In contrast, if a principle of privacy is embodied in the First, Third, Fourth, or Fifth Amendment (see Griswold v Connecticut, 381 U.S 479, 484 [1965]), the principle seems at best implicit, not explicit E.g., Douglas Laycock, "Original Intent and the Constitution Today;' in The First Freedom: Religion and the Bill ofRights, ed James E Wood, Jr (1990),87,89: "The [constitutional] text states sweeping principles It is hardly surprising that the broad principles stated in the text turn out to have implications that the founders did not contemplate." Wechsler, supra note 3, at 12, 15 Ibid at 15 Ibid at 12 Tribe and Dorf, supra note 16, at 13 See Dworkin, supra note 102, at 134-36 To be sure, even if our conceptions diverge, there may still be a historical or genealogical connection between an idea that our ancestors denoted with the term equality or religious freedom and an altered or different idea that we denote with the same term A historian might be able to show how our notions of religious freedom evolved-or, depending on one's point of view, degenerated-from notions held by our ancestors, perhaps by gradual or even imperceptible degrees But it hardly follows that we are referring to the same idea or principle I am descended from (and may have had the good fortune to inherit certain traits of) my grandfather, and I may even have been given his name It does not follow that I am my grandfather, or that statements made about him are also about me (or vice versa) Perhaps the leading proponent of moral realism in the legal academy today is Michael Moore See, e.g., Michael S Moore, "A Natural Law Theory ofInterpretation:' 58 S Calif L Rev 277, 376-81 (1985) Brian Bix points out that Moore's metaphysical realism runs contrary to "the way most of us currently think about language or the way most of us currently (and teach) law" (Brian Bix, "Michael Moore's Realist Approach to Law;' 140 U Pa L Rev 1293, 1330 [1992]) Similarly, Heidi Hurd defends moral realism (Hurd, supra note 29, at 1000-1006), but she acknowledges that this position is not dominant in the academy today See ibid at 1000: "Moral facts are right up there with Cartesian egos, moxibustion, and the Easter Bunny in the ranks of items despised by most contemporary philosophers" (quoting William G Lycan, "Moral Facts and Moral Knowledge;' 24 S.] Phil 79, 79 [Supp., 1986]) Despite significant differences in their epistemologies, both Augustine and Aquinas believed that universals rather than particulars are the immediate object of knowledge and that universals exist before and independent of individuals as ideas in the mind of God See Steven Ozment, The Age of Reform: 1250-1550, (1980), 52-53 266 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 Notes to Idolatry in Constitutional Interpretation For an interesting effort to defend moral reality, see Michael S Moore, "Moral Reality Revisited," 90 Mich L Rev 2424 (1992) My own doubt is whether Moore's account of moral reality in terms of "supervenience" is not nonsense in the same way that I have suggested modern natural rights talk is nonsense; see "Nonsense and Natural Law," in this volume MacIntyre, supra note 58, at 253 Exodus 19:5-6 (Revised Standard) Ibid at 19:7-8 Psalms 33:12 (Revised Standard) Robert F Nagel, "On Complaining about the Burger Court;' 84 Co/urn L Rev 2068, 2081 (1984), reviewing The Burger Court, ed Vincent Blasi (1983) Dworkin, supra note 5, at 109 Ibid at 190 Ibid at 192-93, 196 Ibid at 211 Ibid at 166 Ibid at 168 (emphasis added) Ibid at 168 Compare ibid at 400 (noting that, for the legal interpreter, "his god is the adjudicative principle of integrity"); ibid at 183: "Integrity is our Neptune." Compare Perry, The Constitution, supra note 8, at 98-99 (ascribing a "prophetic" function to noninterpretive judicial review) Dworkin, supra note 5, at 407 Of course, idolatry ultimately occurs within the hearts and minds of its practitioners Hence, whether a particular devotee-or jurist, or legal theorist-is engaged in idolatry is not finally demonstrable through external evidence It is always possible, for example, that even when a scholar's or jurist's language suggests idolatry, the language is calculated or deceptive The apparent idolater might be a dear-eyed pragmatist who for what seem to him sufficient reasons will not admit to being merely a pragmatist For an interpretation of Dworkin as a sophisticated, unconfessing pragmatist, see Steven D Smith, "The Pursuit of Pragmatism," 100 Yale II 409,414-20 (1990) Thomas Grey suggests a different escape from idolatry by resort to a "two-source" theory of constitutional law For some constitutional decisions, Grey suggests, we should not pretend that the decisions are derived from the written Constitution; instead, these decisions come from some other source, such as tradition See Grey, supra note Significantly, jurists and scholars seem unable to reconcile themselves to this sort of account Andrzej Rapaczynski observes that "judges sometimes admit that constitutional interpretation is sensitive to historical evolution and that history adds a 'gloss' on the text But they never admit to deriving the authority for their decisions from outside the constitutional text Instead, any new result is unfailingly presented as a new and better interpretation of the text itself This behavior of judges is very significant because it expresses their belief that purely noninterpretive review would constitute an abuse of power and undermine the legitimacy of judicial review In this belief, moreover, they are very likely to be right" (Andrzej Rapaczynski, "The Ninth AnIendment and the Unwritten Constitution: The Problems of Constitutional Interpretation;' 64 Chi.-Kent L Rev 177, 192 [1988]) Although he rejects Grey's two-source account and insists that constitutional adjudication must "interpret" the Constitution, Rapaczynski does not concede that such interpretation has a religious quality; on this point Notes to Secular Fundamentalism 130 267 he agrees that "Grey is certainly right that judicial inquiry should be a secular enterprise" (ibid at 203) Grey, supra note 6, at 20 SECULAR FUNDAMENTALISM Joseph de Maistre, Oeuvres Completes de / de Maistre (1884-87), 376; quoted in Isaiah Berlin, "Joseph de Maistre and the Origins of Fascism:' in The Crooked Timber of Humanity (1990), 91, 125- Alasdair MacIntyre, After Virtue, 2d ed (1984), Ibid at 6-7 Ibid at Ibid.; see also Alasdair MacIntyre, Whose Justice? Which Rationality? (1988); Michael J Sandel, Liberalism and the Limits of Justice (1982); Charles Taylor, Sources of the Self (1989); and Robert Nozick, Anarchy, State, and Utopia (1974) Rawls does respond to one of Sandel's basic criticisms by emphasizing that the original position as set forth in A Theory ofJustice is only a representational device and should not be understood to imply "a particular metaphysical conception of the person; for example, that the essential nature of persons is independent of and prior to their contingent attributes" (27) For Sandel's perspective on the evolution of Rawls's theory, see Sandel's review of Political Liberalism, 107 Harv L Rev 1765 10 11 12 13 14 15 16 (1994)· See, for example, Peter Berkowitz's excellent review of Stephen Holmes's The Anatomy of Antiliberalism: "It is incumbent upon liberals and their friends to state that Holmes does liberalism no favors by flattering liberal vanities Given the partiality and incompleteness of all things fashioned by human hands, it is doubtful that the principles ofliberalism arc secure when its champions are unable to discover anything of value about its weak points and unwise tendencies from [critics such as Maclntyre]" (Peter Berkowitz, "Liberal Zealotry," 103 Yale LJ 1363, 1382 [1994]) John Rawls, Political Liberalism (1993), xxv Ibid at 214, 137 Ibid at 220 Ibid at 217 Joseph de Maistre argues that "the inevitable consequence of faith in the principles of Rousseau is a situation in which the people is told by its masters 'You believe that you don't want this law, but we assure you that you If you dare reject it, we shall shoot you down in order to punish you for not wanting what you want' and they then so" (Berlin, "Origins of Fascism," supra note 1, at 150) Rawls, supra note 7, at xvi Ibid at 243 Ibid at 49 Ibid at 54-58 See, e.g., Benjamin R Barber, "Justifying Justice: Problems of Psychology, Measurement and Politics in Rawls;' 69 Am Pol Sci Rev 663 (1975): "Rawls concedes that the precedence of liberty comes into play only after 'a certain level of wealth has been attained; and that below this threshold, liberty may not only have to be weighted against but perhaps subordinated to other primary goods in whose absence freedom has no meaning Depending on where the 268 17 18 19 20 21 22 23 24 25 26 Notes to Secular Fundamentalism threshold is established, even Marx might be comfortable with such a viewpoint!" (at 667 n 9; citation omitted) Rawls, supra note 7, at 243 n 32 (emphasis added) See Kenneth Burke, Language as Symbolic Action (1966), 46: Many of [our 1"observations" are but implications of the particular terminology in terms of which the observations are made Perhaps the simplest illustration of this point is to be got by contrasting secular and theological terminologies of motives If you want to operate, like a theologian, with a terminology that includes "God" as its key term, the only sure way to so is to put in the term, and that's that The Bible solves the problem by putting "God" into the first sentence-and from this initial move, many implications "necessarily" follow have called metaphysics "coy theology" because the metaphysician often introduces the term "God" not outright, as with the Bible, but by beginning with a term that ambiguously contains such implications Rawls, supra note 7, at xxv Ibid Ibid Isaiah Berlin describes the preliberal attitude toward dissent: "What Catholic in, let us say, the sixteenth century would say 'I abhor the heresies of the reformers, but I am deeply moved by the sincerity and integrity with which they hold and practice and sacrifice themselves for their abominable beliefs?' On the contrary, the deeper the sincerity of such heretics the more dangerous they are, the more likely to lead souls to perdition, the more ruthlessly they should be eliminated, since heresy-false beliefs about the ends of men-is surely a poison more dangerous to the health of society than even hypocrisy or dissimulation, which at least not openly attack the true doctrine Only truth matters: to die in a false cause is wicked or pitiable" (Isaiah Berlin, "The Apotheosis of the Romantic Will;' in The Crooked Timber of Humanity, supra note 1, at 207, 208) Rawls, supra note 7, at 63 Ibid at 147-48 John Rawls, "Kantian Constructivism in Moral Theory," 77 J Phil 515, 516 (1980) A significant ambiguity in Rawls's account concerns who should, as a practical matter, have the power to determine what counts as "running afoul of public reason," and what consequences, if any, should flow from such a determination That is, ifhis prescriptions are merely precatory, we might want to ask what relevance they have to the political realities of "actually existing liberalism." On the other hand, if-as his comments on judicial review as an embodiment of public reason suggest-the account entails that some antidemocratic institutions have the ultimate power to determine what public reason in fact requires, then we have reason to worry that the author's supreme confidence concerning his ability to discern what he believes are the right answers to such questions will be replicated in the opinions of those appointed to safeguard the exercise of "public reason" (231-40) If this resemblance seems implausible, consider how two other recent books by prominent liberal intellectuals have gone about addressing the abortion controversy Like Rawls, Laurence Tribe and Ronald Dworkin emphasize the great and apparently intractable moral and political struggles that the Supreme Court's decisions in this area have occasioned Yet all three writers reach the conclusion that a principled policy that adequately addresses the legitimate concerns of all parties is not merely available; in their view, such an ideal outcome is actually instantiated by the extant constitutional orthodoxy See Ronald Dworkin, Life's Notes to Clerks in the Maze 269 Dominion (1993), 168-72; and Laurence Tribe, Abortion: The Clash ofAbsolutes (1990), 204-8 The moral hubris of an established faith could hardly go further than this 27 See Hegel's Philosophy of Right, trans T M Knox (1952), 10 28 Rawls, supra note 7, at 243 n 32 29 Ibid at xxxi 30 Ronald Dworkin, Law's Empire (1986),225-27,254-58; Rawls, supra note 7, at 231 31 Rawls, supra note 7, at 137 CLERKS IN THE MAZE It may, of course, not be the same law that the parties or the judge read into the judicial opinion But in each of their interested perspectives, they will each read one law Robert M Cover, "The Supreme Court, 1982 Term-Foreword: Nomos and Narrative;' 97 Harv L Rev 4, 53 (1983) Cover says that the balance of terror is pretty much the way he would want it See Robert M Cover, "Violence and the Word;' 95 Yale LJ 1601, 1608 (1986) James B White, Heracles' Bow: Essays on the Rhetoric and Poetics of the Law (1985),108-12 Christopher C Langdell, A Selection of Cases on the Law of Contracts (1871), vi Ibid at vii I make no claims here about whether this first-year violence is functional or not Within a functionalist framework one could easily see the impartation of cognitive deficits as serving to create a class of professionals guaranteed to interpret any and all texts in the most highly delimited and stereotyped manner People with such cognitive deficits could then be counted on to produce a relative stability or certainty in the fashioning and interpretation of legally significant acts Karl N Llewellyn, The Bramble Bush (1930), 102 (emphasis added) Duncan Kennedy, Note, "How the Law School Fails: A Polemic;' Yale Rev L & Soc Action (Spring 1970), at 71, 72-73 10 Ibid at 73 (footnote omitted) 11 H L A Hart, for instance, found it useful to distinguish two points of view on legal rules: the external point of view, that of the "observer who does not himself accept" the legal rules; and the internal point of view, that of the "member of the group which accepts and uses them as guides to conduct" (H L A Hart, The Concept of Law [1961], 86) Hart saw the external point of view as useful to predict the behavior of members of the group What it cannot do, however, is reproduce "the way in which the rules function in the lives of certain members of the group" (ibid at 88) 12 Ronald Dworkin, Law's Empire (1986), 13-14 (emphasis added) 13 This argument (with specific reference to deconstruction) is elaborated in Pierre Schlag, "'Le Hors de Texte, C'est Moi': The Politics of Form and the Domestication of Deconstruction," 11 14 Indeed, much of academic law can be seen as successive attempts to enact and institutionalize Cardozo L Rev 1631 (1990) precisely this escape The "pure theory" decried by Judge Edwards can be seen, as he does, as one such attempted flight See Harry T Edwards, "The Growing Disjunction between Legal Education and the Legal Profession;' 91 Mich L Rev 34 (1992) But, of course, precisely the same claim can be made about what he calls "doctrine" or "legal process:' Doctrine is simply 270 Notes to Clerks in the Maze yesterday's successful theory What it has going for it is that it has achieved success What it has going against it is precisely the same thing 15 To me it does not really matter much: the doctrine-theory distinction is vastly overstated Much of what passes for theory in the academy is a kind of normative or normatively driven theory It is, in short, a kind of metadoctrine, doctrine in waiting, a doctrine wannabe It is a doctrine of the doctrine-which is, of course, entirely fitting given the age-old self-image of the legal academic as the judge of the judges As for doctrine itself, its claims to be separate from theory are overstated as well Doctrine is simply yesterday's theory successfully transubstantiated into an authoritative juridical artifact Doctrine is simply the activity of theory reduced to artifactual status 16 Could we be talking about God substitutes again? Sure See Kenneth Burke, A Grammar of Motives (1945), 355: "For a God term designates the ultimate motivation, or substance, of a Constitutional frame." For my part, I call these little items "theoretical unmentionables." For a description of their structure and function, see Pierre Schlag, "Contradiction and Denial," 87 Mich L Rev 1216, 1222-23 (1989), reviewing Mark Kelman, A Guide to Critical Legal Studies (1987) 17 Edwards, supra note 14 18 Of course, from within the maze there are any number of very "moral" rationalizations available for remaining in the maze But despite these rationalizations, remaining in the maze is far from ethically admirable Consider that what the academic experiences as the dreariness of the thousand-footnote doctrinal or "interdisciplinary" law review article is echoed in the dreariness of contemporary Supreme Court opinions, which is echoed in the dreariness of the contemporary lawyer's bureaucratic practice, which is echoed in the dreariness of the bureaucratic mazes through which citizens must strive to push their lives There is nothing ethically admirable about these massive self-referential corridors of rules, doctrines, or theories Why, then, legal academics remain in the maze? Why they extend it? Ironically, it is in part because they have an admirable disposition that leads them to want to help, to want to something constructive But, of course, as an ethic, this disposition is woefully incomplete The thing to try to think about is help whom? Construct what? Index Abortion, 191-192, 196-197, 201; rights 11, 196, 201 Academics, 107-108, 150 Ackerman, Bruce, 12, 66-67, 157 Ad hoc doctrinalism, 231 Aesthetics, 61, 92 After Virtue, 170 Amendment (Colorado), 206-207, 209 Amendments, constitutional, 138 Anarchy, 154 Angst, 142, 144,147-149,212,228 Aporetic dialogue, 103-104 See also Socratic dialogue Aquinas, Thomas, 110, 137 Arguments: doctrinalist, 142; Kantian, 112-115; Lockean, 111-112, liS; originalist, 124, 142, 181; plain meaning, 141-142; prudential, 142 Arnold, Matthew, 19 Astrology, 160-161, 165-166 Athenians, 103-104, 110 Austin, John, 110 Author: artificial, 166, 188; "constructed," 166169,188; historical, 163, 164; mindful, 161 See also "Constructed" author Authorial intention, 117-120, 124 Authoritative texts, 159-160 Authorization, 219 Authorship, 117-11S Bacon, Francis, 101 Balkin, Jack, 142 Barthes, Roland, 116 Baudrillard, Jean, 80 Bentham, Jeremy, 100, 104 Berger, Raoul, 157 Bible, 135-137, 174-175, 176, 186-188; Aaron, 174-175; Moses, 110,174-175,188 See also Old Testament Bickel, Alexander, 157,180 Biden, Joseph, 11 Bill of Rights, 124 See also First Amendment Bobbitt, Philip, 142 Bollinger, Lee, 12 Boorstin, Daniel, 105, 107 Borges, Jorge Luis, 116-117, 120-121, 131 Bork, Robert, 7, 157, 180,205 Bourdieu, Pierre, 29 Bradley, Walter, 135 Brest, Paul, 124-125 Briefs, 145, 148 "Brooding omnipresence in the sky:' 16, 110 Brown v Board of Education, 157, 164, 166, IS0181 Buber, Martin, 135-136 Burden of proof, 154-155 Bureaucracy, 29-31,49-51,64-66,98-99 See also L.A Law Burger Court, 159 Burke, Kenneth, 197 Calabresi, Guido, 67 Campbell, O J., 136 Capital punishment, 11, 126-128 See also Death penalty Cardozo, Benjamin Nathan, 136 Carrington, Paul, 15-16, 18, 21-22 Catechism, 203 Catholicism, 158, 178, 203, 207 See als~ Religion Chesterton, G K., 139 Christian thought, 172-173, 207 Civil religion, 159, 176, 191 Coase, Ronald, 67 272 Index Code of Professional Responsibility, 234 Cohen, Felix, 101 Coherence, 43, 89 Common law, 18, 152, 163, 221 Community,186-188 Conceptualism, 33-34 Congress, uo Constitution, U.S., 8, 12, 100, 116, 124, 126, 131, 134-135,138-139,157,176,179-180,182,187, 205, 210, 232; amendments to, 138, 178; death of, 19; discourse and, us; meaning of, 116, 119-120,124; oath to uphold, 8; text of, 124126, 128-129, 134, 186, 189 Constitutional amendments, 138 Constitutional interpretation, 8-10, u6, 119120,123-131,134,157-164,166,169,180-181, 186,188 See also Interpretation of texts Constitutional law, 124-125, 134, 178-179, 186, 188-190 Constrain and control, 226-231, 236 Constraint, 43-46, 226-229 "Constructed" author, 166-169, 179 See also Author Context, 117; contextualism, 38 See also Interpretation of texts Contradiction, logical, 112-114 Conventionalism, 17-18, 91 Comell, Drucilla, 65-66 Cover, Robert, 218 Critical Legal Studies, 19-20, 26, 33, 55, 69, 80, 84 Cruel and unusual punishment, 126-128 See also Death penalty; Eighth Amendment Cynicism, 148 See also Demoralization Dauer, Edward, 52-53, 55, 145 Davies, John J., 135 "Death of God;' 212 Death penalty, 126-128 See also Capital punishment; Eighth Amendment Declaration of Independence, 107 Deconstruction, 69-70, 76, 83, 84, 223 Default: categories, 63-65; normative rules, 40-41 "Demand for the superlative," 170, 172, 178 Demiurge, 104-105 Demoralization, 148; constitutional, 19 Derrida, Jacques, 69,76 See also Deconstruction Discourse; legal, 33; moral, 110,170-171; normative, 64-65; rights, 104-105, 108-110, 112 Dispute resolution, 146-147 Dissonance, 11, 52, 148-149 See also Skepticism Doctrinalism, 23-25, 27, 142 Doctrine, 23-25, 27, 43-44, 142, 148, 219, 221, 225, 231, 234, 236; doctrinalism and, 23-25, 27,142; doctrinalists, 23-28 Dogmatism, 203, 208 "Doing law;' 1-3, 155,230; legal academics approach to, 2, 29 Dorf, Michael, 168, 180 Dostoyevsky, Feodor Mikhailovich, 157 Douglas, William, 203 Drawing and quartering See Cruel and unusual punishment Dualism, 39, 82 Due process, 6, 161 Dwight, Timothy, 105 Dworkin, Ronald, 66; on Brown v Board of Education, 157; Community of Principle, 180, 186-188; distinguishing internall external perspective, 222-223, 228; influence on Rawls, 201-202; on L.A Law, 54-56, 58, 83; on "real law;' 88-94; style of constitutional interpretation, 129-133, 165, 167-169; theory of authorship, 166; theory of law, 42-44; vision oflaw, 52-54 Edwards, Harry, 22-26, 234-235 Eighth Amendment, 126-128 See also Cruel and unusual punishment Eliade, Mircea, 170 Ely, Richard Theodore, 12 Enlightenment, 73, 198 Epistemology, 8, 73, 115, 235-236; problems and, 196; skeptics, 198 Equal protection clause, 125-126, 130-131, 180 See also Fourteenth Amendment Erewhon, 120-123; council members, 121-123 Ethics, 171-173 Existence, 102 External perspective, 61,70-72,87-97,222-223 Index Faculty hiring, 21-22 See also Carrington, Paul; Fish, Stanley Fanatics, 142-143 See also First Amendment "Favor bank;' 49, 51 See also "Shadow law" Finnish, John, 147 First Amendment, 124, 143, 210, 213, 232 Fish, Stanley, 21, 155 Fiss, Owen, 19, 53, 55-56, 66-67 Formalism, 63, 98, 118, 132, 164, 182, 221 Foucault, Michel, 77-78 Fourteenth Amendment, 125-126, 130, 164, 180-181,213 See also Equal protection clause Fowles, John, 66 Framers' of Constitution: intentions, 8, 19, 169, 180-181, 183, 205 Frankfurter, Felix, Freewill,143 Freud, Sigmund, 131, 170, 172 Fried, Charles, 75 Friedman, Lawrence, 92-93 Fuller, Lon, 110 Fundamentalism, 73, 142 Gaudi, Antonio, 12 General intent, 125-127 See also Perry, Michael Gewirth, Alan, 113-114 Gilmore, Grant, 6, 146-147 Ginsburg, Ruth Bader, 7, 9-12, 203 "Giving an account," 103-104,108-109 Glendon, Mary Ann, 24, 26 273 Hamlet, 131, 132 See also Shakespeare, William "Happy talk jurisprudence;' 224 Hart, Henry, 9, 12, 25 Harvard Law Review, 36-38, 98 Hegel, Georg Wilhelm Frederic, 193, 200-201 Hercules, 42-44, 58-61 Hermeneutics, 4-5, 129, 133, 152, 157, 223 HiII,Anita,7 Holmes, Oliver Wendell, 7, 16, 110, 170, 173, 178, 208 Homer, 176 Hurd, Heidi, 165 Icons, 177-178, 190 Idealism, 145, 148-149 Ideals, 29-30 Idolatry, 5-6,157,159,169,174-179,186-190 See also Legal idolater Inauthentic discourse, 147 Internal perspective, 61, 70-72, 87-97, 222-223 Interpretation of texts, 4-5, 7-8, 118-139, 157, 160-166; "constructed author interpretation;' 167-168 See also Constitutional interpretation; Original intentions; Originalism Interpretive history, 123 Interpretive principles, 4-6, 8, 121, 123, 127-129; idolatrous, 179 Israel, 110-174, 186; Israelites, 174-175 Griswold v Connecticut, 47 Jackson, Robert, 204 Jefferson, Thomas, 104-107, 111; on ethics, 107; on government, 107: on law, 107; on rights, 107; worldview, 104-107 Johnson, Mark, 89 Joyce, james, 203 judges, 218; and judicial clerkship, 220; law of, 219: procedure, 10, 26; review, 158: violence Of,218-219 jurisprudence, 7, 220; constitutional, justice, 219 justification, 45-46, 113-114, 187-188, 198-199, 227 See also Justify and redeem Justify and redeem, 227-231, 236 Habermas, Jurgen, 153 Habituation, 141 Kafka, Franz, 12, 13 Kahn, Coppella, 136 God, 104-115, 134-137, 139, 172-175, 177, 186188, 193, 197, 212 See also Burke, Kenneth; "Death of God" Goddard, Harold, 136 Goethe, Johann Wolfgang von, 176 Golden calf, 174, 186 Great Chain of Being, 104-106, 107 Grebanier, Bernard, 136 Greek ethical discourse, 103-104 Greenawalt, Kent, 91-92 Grey, Thomas, 157-159 274 Index Kant, Immanuel, 111-115, 193; categorical imperative, 114 Kelling, Hans-Wilhelm, 176 Kelman, Mark, 85 Kempis, Thomas ii, 173 Kennedy, Duncan, 24, 55, 85 Kermode, Frank, 136 Kierkegaard, S0ren, 193 King Lear, 136 King Rex, 110 Klarman, Michael, 163-164 Knapp, Steven, 117, 120, 133, 159 Kronman, Anthony, 149 Lakoff, George, 89 L.A Law (L.A Law's empire), 46-51, 53-63, 82-86,88-89,92, 94-95, 97, 143; Kelsey, Ann, 47, 50; Markowitz, Stuart, 46-49; Kuzak, Michael, 47-49, 53 Langdell, Christopher, 23, 36, 221: Langdellian destruction, 222-223; vision of, 19-20 Law, 1-3, 29; "the law," 2, 153-155,181,232; law of the academy, 230, 234; nature of, 19-20; "as a net," 217; as power, 30-31, 47-50; purpose of, 146: "real;' 88; romanticized, 2, 4651,57, 149; as social practice, 215, 222 Law and economics, 26, 33, 67-69 Lawgiver(s), 108, 110 Legal discourse, 74, 100-101 Legal idolater, 5-6 See also Idolatry Legalism, 229 Legal positivism/ positivists, no, 227 Legal practice, 223 Legal Process, The, 9-12, 25 Legal realists, 17, 20 Legal scholarship, 2-5, 19-20, 38, 42, 143,151 See also "Doing law" Legal system: limitations, 25-26 Legal thought/thinkers 30-31 67, 69, 71-77, 224; normative, 42-44, 78 See also Normative legal thought Legal unconscious, 70 Legislators, 108, 110-111 Legitimacy, 187-188, 194 Legitimation, 219, 225-226, 228-232, 235-236 Leibniz, Gottfried Wilhelm von, 105 Levinson, Sanford, 12, 158 Liberalism, 155, 193, 197-200 Linguistic formalism, 165-166 Llewellyn, Karl, 101, 222 Locke, John, 111-115: Lockean arguments, 111112, 115 Logical positivists, 101 Lost World of Thomas Jefferson, The, 105 See also Great Chain of Being Lovejoy, Arthur, 104-105 Law practice, 29-30, 54, 82, 147-149, 214-215 See also L.A Law: Kuzak, Michael MacCrate Report, 25 Law professors, 149-150, 151 Law review articles, 41 MacIntyre, A1asdair, 170, 173, 186-188, 191-192 MacKinnon, Catherine, 12 Law's Empire 42-44, 52, 54, 56, 88, 90, 94-95, Marbury v Madison, 97,202.223 "Law talk:' 142 145 209 See also Rhetoric Lawyers: "good" and "bad;' 143-146 Marx, Karl, 193; Marxist regime, 174 Matsuda, Mari, 27 May, Henry, 105, 107 "Leap offaith," 158-159, 189 See also Kierkegaard, S0ren Mazes, 24, 231, 233-236 Meaning, 103, 122-123, 165, 221 Merchant of Venice, The, 136 Metaphor(s),22-23 Leff, Arthur, 52-53 55, 145, 170-172 Legal academy/academics, 19, 22, 25-28, 30-31, 76-78,80.83-84.96,98-99,144,146,149, 153,156,204-206,220-224,225-236; law of the, 219, 221, 223, 225; thought of, 36-38, 4146,55,69,71-72 Legal briefs, 145, 148 Legal clinic, 95-97 Metaphysic, 17-19, 147 Mexico, purpose of law in, 146 Michaels, Walter Benn, 117, 120, 159 Michelman, Frank, 45 Minow, Martha, 68 Modalities, 142, 211 Index Mollenkott, Virginia, 136 Monaghan, Henry, 24, 124-126, 128-129, 164 Moral authority, 187-188 See also Principles: Dworkin's Moral imperative, 192 Morality, 109, 170-171; moral virtues, 64-65 Moral realism, 185 Morris, Henry, 135 Murder, 191-192 Nagel, Robert, 187, 204 Nagel, Thomas, 201 Natural law, 100, 104, 115, 178 See also Rights, concept of Natural rights, 100, 104, 107-111, 115; framework, 100 Neopragmatist, 18, 68-69, 83, 236 Nesting, 83-87 Nietzsche, Friedrich Wilhelm, 12, 157, 193; Nietzschean approach, 7, 19-20,77-78,147 Nihilism, 33-34, 214, 223, 232 Noninterpretivism, 157 Nonoriginalist interpretation, 164 Nonsense, 100-102,104, 108-109, 115, 212 Norm: justification, 39-41, 75; selection, 75 Normative, 27-28, 29-31,79, 106, 138, 143, 171, 204,223, 225, 227-231, 235-236; conclusions, 62-63; legal theories, 42-43; orientation, 75-76: rationality, 61, 85-87: rhetoric, 85-87; utopianism, 24, 62-63 See also Normative legal thought Normative legal thought, 3-4,32-46,51-63, 66-71,75-79,81-83,97-99; assumptions by, 58-60; conclusions of, 35-37, 41, 44, 97-98; grammar, 64-65: monistic, 39-41; prescriptive, 38-41, 59, 63 Novy, Marianne, 136 Nozick, Robert, 193 Objectification, 34-38 O J Simpson trial, 25 Old Testament, 135, 174, 176; Exodus, 186; Genesis, 135 See also Bible Olsen, Roger, 135 Ontology, 8, 17, 101-102, 115, 181, 222, 224-236; gap, 103; Jeffersonian, 104-107; ontological 275 catalogues, 101-103, 104, 109; skepticism about, 198 Ordinances, 120-122 Original intentions, 8, 119, 125, 164 Original ism, 8, 124-128, 134, 181; "sophisticated originalism," 125-128 See also Interpretation of texts; Original intentions Original meaning: constitutional, 209; Erewhonian, 121-123 Orwell, George, 47 Parable, Kafka's, 13 Paradox, 93 Penner, Terry, 103 Perry, Michael, 125-129, 157-158, 180 Persuasive argument, 208-211 Philosophy of Right, 200-201 See also Hegel, George Wilhelm Frederic Pilon, Roger, 100, 1l1-115; Kantian argument, 112-lI5 Plato, 46, 69, 82, 103-105, 175,180,200-201; Apology, 175; Republic, 200; theory of forms, 104 Pluralism, 39,197 Political liberalism, 193-194,197 Political Liberalism, 191-193, 195, 198-202 Politicization oflaw, 79 Politics of form, 79 Positivism, 33 Posner, Richard, 23-24,152 Poststructuralism, 219 Pound, Roscoe, 167 Priest, George, 26, 27 Principles, 180-188, 219, 225: conventionalist, 181,183-185; Dworkin's, 186-188; formalist, 181-183: "the principle of sufficient reason," 105; realist, 181, 185-186 Private interest, 144, 146 Protagoras, 103 Protestantism, 105,158, 178,190 Providence-centered worldview, 107-108,115 See also Jefferson, Thomas: worldview Public good, 144 Public interest, 146 "Public reason," 194-195, 199-200, 202 Putnam, Hilary, 101 276 Index Rationalism, 84-85 Sophistry, 103-104, 115 Rationalization, 46, 225-235 Rawls, John, 191, 193-202 Realism, 118 Soul, 105 Souter, David, 209 Sovereign lawgiver, 110 See also King Rex "Speaker's meaning" theory, 129-131 Specific intent, 125-127 See also Perry, Michael Spelman, Elizabeth, 68 Spinoza, Benedict, 106 Stampfer, James, 136 Stare decisis, 9, 125, 227 State of nature, 111-112; Lockean, 111 See also Reality, 103 Reasonable man, 103 Reductionism, 221 Reformation, 197 Religion, 158-159,207-208 Religious freedom, 184-185 Religious fundamentalist, 201 Resonance, 82-83, 97 Rhetoric, 40, 56-58, 60, 71, 74-75, 77-78, 81, 83, 85-87,110-111,124,141-143,149,152,208; political, 19 See also Modalities Rights, concept of, 100, 104, 108-115; "freedom of speech;' 109; privacy, 205 See also Natural rights Rights discourse, 104-105,108-110,112 Rosenberger v University of Virginia, 209 Rousseau, Jean-Jacques, 177, '94; social contract, 194 Rules, 219, 225 Sacks, Albert, 9,12, 25 Sandel, Michael, 193 Scalia, Antonin, 203 Script, 219 Secular fundamentalism, 6, 200 Segregation, 164 Taming of the Shrew, The, 136 Taylor, Charles, 193 Teaching oflaw, 15-16, 19, 96, 142-147, 150-152, 207,211-213 Team metaphor, 22-23 Texas v Johnson, 210 Texts, 116-139, 159-168, 181, 232; constitutional text, 124-126, 130-132, 166 Textual interpretation See Interpretation of texts Theater, 32, 54-56, 71, 89, 94, 97; jurisprudential,66 Self,71-75 Self-contradiction, 113-114 Senate confirmation hearings, 7, 11, 203-206 "Shadow law;' 49, 51 See also "Favor bank" Shakespeare, William, 131, 135; Hamlet, Simpson, Brian, 18, 152 Rousseau, Jean-Jacques Statutory construction, 163 Statutory interpretation, 120-123 Stewart, Potter, 204 Stream of commerce, 8-9 Supreme Court, U.S., 9, 19,36-39,180,203 131 Skepticism, 148, 198 Slippage, 82-83, 86, 96 Smart, James, 135 Sociology, 90-93, 152-154 Socrates, 103, 104, 115, 175-176; aporetic dialogue, 103, 104; Socratic method, 222 Solon, 110 Soper, Philip, 162 "Sophisticated originalism;' 125-128 See also Perry, Michael Theater of the rational, 66-68, 71, 89, 94-95, 97 Theology, 158, 207-208 Theory, 231, 234 Theory ofJustice, A, 193, 196 Third Restatement of Everything, 98 Thomas, Clarence, 7, 209 Thoreau, Henry David, 162 Transaction costs, 6, 23, 25 Trial lawyer, 52 See also L.A Law: Kuzak, Michael Tribe, Laurence, 157, 168, 180 Trible, Phyliss, 136 Tushnet, Mark, 12 Unfinished texts, 12 See also Legal Process Ur-text, 11 See also Legal Process Index Van Alstyne, William, 12, 152-153 Vining, Joseph, 158, 160, 162, 166, 169 Violence, 218-236; of judging, 218-219 Vlastos, Gregory, 104 Wall Street, 85-86; "Wall Street law," 86 Warren Court, 80, 159, 164, 187 277 Weschler, Herbert, 12,24,152,157,180,182-183 West, Robin, 62, 77-78 White, James Boyd, 107-108 Wittengenstein, Ludwig, 12 Wolff, Hans Walter, 135 Worship, 174-175, 178; ancestor, 128-129; of rationali ty, 10 Paul F Campos, Pierre Schlag, and Steven D Smith are Professors of Law at the University of Colorado, Boulder Library of Congress Cataloging-in-Publication Data Campos, Paul F Against the law / by Paul F Campos, Pierre Schlag, and Steven D Smith p cm.-(Constitutional conflicts) Includes index ISBN 0-8223-1835-0 (doth: alk paper).ISBN 0-8223-1841-5 (pbk : alk paper) Jurisprudence-United States Law-Study and teaching-United States Law-United StatesInterpretation and construction I Schlag, Pierre II Smith, III Title IV Series Steven D (Steven Douglas), 1952KF380.C294 1996 349.73-dc20 [347.3J 96-22190 C1P ... rather with the idea of "the law" - the almost theological, basically metaphysical idea of the law that is, I think, part of the standard orthodoxy of what is taught to students in American law. .. "against the law. " But there is something else that "the law" connotes I have sometimes tried to use the term in uppercase and lowercase (The Law and the law) to try and distinguish between these two... moral or ethical guidance They have sought to conduct their lives in accordance not only with particular laws but with "the law" -with a lawlike aesthetic, a lawlike frame They have taken cognizance