Thursday, March 13, 2008

More Academic Esoterica

Meanwhile, back on the Volokh Conspiracy, my friend Randy Barnett is peeved at my characterization of his prior response to my FindLaw column as "academic esoterica." But I stand by my characterization, at least for the blogosphere. As one snarky comment on one of my earlier posts on this point noted, you know you've left the domain of a discussion for general readers when you are accused of error for confusing "ambiguity" with "vagueness," two words that most English language thesauruses treat as synonyms.

Still, to avoid hurt feelings or misunderstanding from any ambiguity and/or vagueness in my earlier comments, I'll say now that I think that the sorts of arguments that Barnett and others make in favor of their particular brand of originalism should be taken seriously and met. I just don't think that the best forum for doing so is this blog. And thus Barnett is not being entirely fair when he quotes one paragraph of one of my blog posts as expressing my "entire argument" for why a sufficiently broad account of original understanding---e.g., one which defines the original understanding at the level of quite abstract principles whose concrete content then gets filled in by later generations, including later generations of judges---robs originalism of its claim to provide determinate answers that are not dependent on the value judgments of the particular originalist of this sort. My "entire argument" would fill books and law review articles, and in fact it has, not just by me, but by numerous other scholars who argue that the living Constitution is not just desirable but inevitable, even for those who claim to be originalists.

So, I want to make just 2 points:

(1) Barnett appears to understand my statement in an academic piece that doctrine often trumps text as expressing a normative preference. In fact, I offered the point as a description of the longstanding practice of the Supreme Court. Barnett also seems to equate "doctrine" as I used the term in the article in question with "whatever I value," so that he concludes that my argument that doctrine often trumps text means I think my values trump text. In fact, "doctrine" was used by me in the standard way: to refer to rules and principles developed by the courts over time and protected by stare decisis. Just as I acknowledge in all my academic (and for that matter, non-academic) writing) that the Constitution does not simply mean whatever I would like it to mean, so I acknowledge that this is also true of constitutional doctrine. It would be very odd indeed, wouldn't it, if all constitutional doctrine happened to agree with whatever I happen to think best on normative grounds? Perhaps Barnett is the sort of radical legal realist who thinks constitutional doctrine is just that unconstraining---and that precedents can be overruled whenever courts disagree with them---but I am not (and I'm nearly certain that he isn't either).

(2) All I really meant by referring to the fine distinctions being drawn as "academic esoterica" was that the law reviews provide us ample opportunity to moot these issues. Isn't the whole point of blogging to be able to address juicier issues like the resignation of Client 9?

Posted by Mike Dorf