Knowledge And Decisions

The limitations of language alone require some use of judgment in interpreting any set of rules, including the Constitution. At various times value judgments may also need to be made in finely balanced cases or when constitutional provisions conflict in a particular application. Virtually no one on either side of this controversy denies either of these points, though some proponents of judicial activism have set up as a straw man “literalists” who are “wedded” to “ever-irresistible simplicities.”³¹⁹ But because certain inputs (judgments, value judgments) into the decision-making process are incrementally productive in some cases does not mean that they are categorically necessary or desirable in all cases or in general. An appellate court may be compelled to resort to these inputs in particular cases, but that in no way means that the Supreme Court has a general mandate to “evolve and apply”³²⁰ such principles of its own as it finds “rational” or in the “spirit” of constitutional “values.” Although the view that it does takes on an air of modernity, it is in fact quite old. Such ideas were set forth — and rejected — in the nineteenth century. In 1873 the Supreme Court declared that “vague notions of the spirit of the Constitution” are no basis on which to declare void “laws which do not square with those views,” and the “spirit” of a constitution “is too abstract and intangible for application to courts of justice, and is, above all, dangerous as a ground on which to declare the legislation of Congress void by the decisions of a court.”³²¹ The idea of applying the spirit or values instead of rules is not new. What is new is the extent to which the tendency to do so has been indulged. It rests ultimately on the non sequitur that what is necessary in some cases is authorized, justified, or beneficial as a general principle. It is as if an argument for the existence of justifiable homicide as a legal category proved that laws against first-degree murder were unnecessary.

The above argument that the Supreme Court should abandon the original meaning of the constitutional rules is often supplemented with the claim that it cannot follow the original meanings of those rules because they are too vague and imprecise, or their original meaning has somehow been lost in history. However, there are voluminous, detailed, verbatim records of the debates preceding the adoption of the Constitution and of its various amendments, so sheer lack of historical materials is not a real problem. The difficulties of ascertaining the original meaning or intention of constitutional provisions often turns on what can be called “the precisional fallacy” — the practice of asserting the necessity of a degree of precision exceeding that required for deciding the issue at hand. Ultimately there is no degree of precision — in words or numbers — that cannot be considered inadequate by simply demanding a higher degree of precision. If someone measures the distance from the Washington Monument to the Eiffel Tower accurately to a tenth of a mile, this can be rejected as imprecise simply by requiring it in inches, and if in inches, requiring it in millimeters, and so on ad infinitum. On the other hand, even a vague request by an employer for an employment agency to send him a “tall” man may be enough for us to determine that the agency has disregarded his instructions when it sends him a man who is 4 feet 3 inches tall. The vagueness of “tall” might be enough to cause interminable discussions about men who are 5 foot 11 or 6 foot 1, but if in the actual case at hand the man is “short” by any common standard, then vagueness is a red herring for that particular case.

The precisional fallacy is often used polemically. For example, an apologist for slavery raised the question as to where precisely one draws the line between freedom and involuntary servitude, citing such examples as divorced husbands who must work to pay alimony.³²² However fascinating these where-do-you-draw-the-line questions may be, they frequently have no bearing at all on the issue at hand. Wherever you draw the line in regard to freedom, to any rational person slavery is going to be on the other side of the line. On a spectrum where one color gradually blends into another, you cannot draw a line at all — but that in no way prevents us from telling red from blue (in the center of their respective regions). To argue that decisive distinctions necessarily require precision is to commit the precisional fallacy.