Monday, July 26, 2010

Constitutional "Polymorphism"

By Mike Dorf

In my latest FindLaw column, I discuss Lindsey Graham's speech last week explaining why, despite disagreeing with Elena Kagan on issues and philosophy, he would vote to confirm her.  In a nutshell, Graham says that the proper role of the Senate in judicial confirmations is to check the nominee's professional qualifications and character, but not his or her substantive views.  I argue that Graham's approach is certainly a legitimate one with a respectable tradition, but not, as he says, the only approach permitted by the Constitution.  In the course of examining Graham's argument, I explain that one reason his invocation of Alexander Hamilton's views from Federalist No. 76 appears misplaced is that Hamilton was talking in the relevant portion of that essay about the role of the Senate in confirming executive officials, not judges or Justices.  It's appropriate, I say, for the Senate to apply more substantive standards when considering nominations to a life-tenured judiciary charged, among other things, with checking the President, than when considering nominations to serve in the President's administration to carry out the President's policies.

Here I want to raise and then respond to a potential objection (not discussed in my column) to the foregoing line of reasoning: The Constitution confers the "advice and consent" power for judicial and executive officials in the same sentence; it is literally the same power; thus, according to this objection, "consent" cannot mean one thing with respect to judicial officials and another thing with respect to executive officials.  Justice Scalia has espoused that view with respect to statutes: A single word or phrase in a single statute must have the same meaning across contexts.  And, the objection would conclude, it applies to the Constitution as well.

However, as Jon Siegel showed in a nifty 2005 Texas Law Review article (pre-publication version here), "polymorphism"--the practice of giving a single word or phrase in a single statute different meanings in different contexts--is both well established and normatively appropriate (in certain circumstances).  Aaron Leiderman wrote a nice piece in the Administrative Law Review (pre-publication version here) extending and applying these principles to the agency context.  What about "constitutional polymorphism?"  Can a single word or phrase in a single clause of the Constitution (such as "consent") mean different things in different contexts?  It strikes me that the answer is almost surely "yes," but that if it's "no," it's only "no" in a strictly formal sense.

Consider the Supreme Court's procedural due process jurisprudence, which, under the leading case, balances the government interest in expeditious resolution of disputes against the private interest in avoiding an erroneous deprivation of an interest in life, liberty, or property, to determine what process is "due" in any given case.  In a formal sense, we could say that the meaning doesn't change.  Everyone is entitled to exactly the process that is "due" him or her under the circumstances; it's just that different circumstances demand different processes.  Or consider the different tiers of scrutiny under the single Equal Protection Clause.  Here too, we could say that the term "equal protection" always means the same thing but that this one thing has different entailments in different circumstances.  But this move--like the parallel move to avoid polymorphism under the Due Process Clause--strikes me as highly formalistic.  That is why both Justices Marshall and Stevens--who, in this context, were critical of constitutional polymorphism--sometimes complained that the Court's equal protection jurisprudence ignored the fact that "there is one Equal Protection Clause."  Similar points have been made by conservative Justices objecting to decisions scrutinizing affirmative action programs less rigorously than other race-based classifications.  These criticisms may be right or wrong on the merits but I think they correctly understand that the formal move of saying everyone gets the same definition of equality at some "ultimate" level, ignores the substantive polymorphism.

So, to return to the hypothetical objection to my objection to Graham's use of Federalist No. 76: Yes, the conditions under which the Senate can or should withhold consent from a Presidential nominee can differ based on the nature of the office.  And that's perfectly consistent with the way in which the Constitution is generally interpreted.


andy grewal said...

I don't think subtle legal arguments should be so quickly dismissed as "formalistic" (as if there is something wrong with formalism, in any event). Statutory interpretation often involves highly nuanced issues and small things, like the placement of a comma, can make a big difference to an interpreter.

Also, I do think there is a meaningful (not "formalistic") difference between applying a single statutory term differently in different context and finding that it can mean multiple things. Surely in some cases the distinction blurs, but in many cases the only way to reach two particular results is to give a word two different meanings -- simply applying the word differently won't do.

The IRS has concluded, for example, in the phrase "away form home," the term "home" means your business premises sometimes, but your actual residence some other times. (Unsurprisingly, the meaning in any particular context is the one that screws over the taxpayer the most in that context.) There's a similar polymorhphism regarding the statutory term "away."

I don't think one can fairly say that the differences are "formalistic" in this context. This doesn't come down to a meaningless distinction between applying a vague term differently in different contexts and giving a single term two meanings.

If you find that that "home" means your residence when it applies to you but that it means my office when it applies to me, on the same set of facts, you are coming up with multiple meanings, not applying a term differently in different context.

Understanding these subtle differences -- and not merely dismissing them as "formalistic" -- is key to understanding whether a particular interpretation advanced by a party is sensible.

Michael C. Dorf said...


i think the problem in the examples you cite is the inconsistency rather than the polymorphism itself. Obviously, not EVERY polymorphic interpretation is, ipso facto, correct. Mosty necessarily aren't. The claim is simply that SOME polymorphic interpretations are sensible. i recommend siegel's article for examples of indisputable polymorphism that makes sense--i.e., instances in which it's not simply a matter of a vague term. (also, note that I don't think all formal distinctions are bad; just that this one is artificial.)

andy grewal said...

Fair enough. I read Siegel's article some time ago and he makes a compelling argument for polymorphisms in unusual cases. I'm not so sure that the "advice and consent" provision is a proper case, though, especially since it seems perfectly possible to apply the "advise and consent" differently in different contexts, without turning it into a chameleon.

Michael C. Dorf said...

I agree re "advise and consent," which I was simply using as a hook to raise the possibility. Indeed, it's possible to say that "consent" means exactly the same thing in both the executive and judicial context: namely, majority vote of the Senate. Per the Constitution, a person does not become a major officer or judge without such a vote, but the Constitution does not speak to the different question of what criteria the Senate should use in deciding whether to grant or withhold consent. (And that's my point in the column: The Constitution allows for a range of approaches to the criteria the Senate can use.)

Sam Rickless said...

I agree with the last point you make here, Michael, but I think philosophers of language would agree with me that the application of different necessary and sufficient conditions for consent with respect to different types of offices (executive vs. judicial) is not sufficient to induce a change of *meaning* in the word "consent". In your post, you suggest that this is so only in a "strictly formal sense". To me that is the only sense there is. To suggest otherwise, it seems to me, is to stretch the use of the term "meaning" beyond what it can reasonably bear. The same is true of the other examples you use: "equal protection" and "due process".

Consider the meaning of "excessive" in the phrase "excessive fines". If I say (a) that a $1,000,000 fine for jaywalking is excessive but (b) a $1,000,000 fine for inadequate mine ventilation is not excessive, I am not committed to accepting that the word "excessive" means one thing in (a) and another thing in (b). In both occurrences, the word "excessive" means "above of what is appropriate in the relevant circumstances". The single, stable meaning of "excessive" tells us that the same fine may be excessive in one set of circumstances without being excessive in another.

The word "consent" differs from the word "excessive" because it is not context-sensitive. So it should be even plainer that "consent" does not have a different meaning in (c) and (d), even if Senators think that the sufficient conditions for consent in (c) differ from the sufficient conditions for consent in (d):

(c) The consent of the Senate is required for executive confirmation.

(d) The consent of the Senate is required for judicial confirmation.

What I am saying may strike you (and others in the legal academy) as caviling about the word "meaning". But I strongly believe that much of the "sturm und drang" about "formalism" and "textualism" and "originalism" and "polymorphism" and "opentexturedness" and "livingconstitutionalism" would simply disappear if only our concept of meaning were made sufficiently clear.

Michael C. Dorf said...


You raise a number of interesting points. I agree with some; disagree with others. It has inspired me to write a follow-up post for Thursday. (Neil's up tomorrow.)


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