The Case for Pragmatic Pluralism as the Best Method of Constitutional Interpretation
How judges should interpret the United States Constitution is an issue as old as the Constitution itself. The myth that the text plays a serious role in constitutional cases can be debunked by simply recognizing that judicial review itself, a power never used by judges anywhere in the world prior to the American colonies, is nowhere mentioned in the Constitution. Nevertheless, as a matter of structure, history, and common sense, the power of judges to refuse to give effect to laws that violate the Constitution is an essential feature of American democracy. Moreover, it is a justifiable conclusion based on a theory of constitutional interpretation I will call pragmatic pluralism (which is a phrase used by some in the sciences as well).
Perhaps the best example of judicial pragmatic pluralism comes from one of the most important cases in American history-McCulloch v Maryland. This litigation involved the first important constitutional debate arising after ratification: the constitutionality of the first Bank of the United States, which Alexander Hamilton strongly supported and Thomas Jefferson emphatically opposed. Using a combination of text, history, structure, and attention to on-the-ground consequences, Chief Justice John Marshall upheld the constitutionality of the Bank even though the Constitution does not expressly give Congress the power to create a national bank.
As a descriptive matter, ever since McCulloch, judges and justices have paid attention to what Professor Phillip Bobbitt famously labeled the six modalities of constitutional interpretation: text, history, structure, doctrine, ethics/morality, and attention to consequences.
Prior to the 1970’s, when originalism first emerged as a political response by conservatives to the liberal decisions of the Warren and early Burger Courts, most judges and scholars recognized that difficult constitutional cases require the balancing of conflicting values and priorities. But with originalism came the fanciful idea that judges should strongly prioritize either the original intent or original meaning of the constitutional text. But originalism is fool’s gold. Absent binding precedent or crystal-clear text, judges have always paid the most attention to the real-world consequences of their decisions, and that is as true for the self-identified originalists of the Roberts Court as for the liberal justices of the Warren Court. I detailed at great length how little the Roberts Court actually cares about originalism (as opposed to pragmatic realities) in this recent article.
Judges with life tenure interpreting imprecise text written centuries ago will inevitably give that text a modern reading consistent with their values, politics, and ideologies. This is the story of American jurisprudence from McCulloch to Lochner to Steel Seizure to Brown to Roe to Bush v. Gore to Dobbs to Trump v. United States.
If one wants to limit or cabin judicial discretion in constitutional cases, the best and most direct way to accomplish that goal is to require judges to give strong deference to other political decision makers, just as appellate judges give deference to the factual findings of trial courts. But after decades of advocating for exactly that approach, I’ve come to realize that strong judicial deference is probably unattainable absent serious Court reform, which is unlikely to happen anytime soon.
That being the case, the best we can hope for is for judges to transparently admit that they are pragmatic pluralists and honestly describe the reasons for the decisions they make. The Roberts Court has not privileged religion, guns, and deregulation because the justices are originalists or textualists. Its majority privileges those constitutional values because they are conservatives, libertarians, and Republicans. The dissenting liberal justices do not disagree with the prioritizing of those values because of text or history but due to serious disagreements over what they see as the negative consequences of those decisions.
In future writings, I will specify in more detail what I mean by pragmatic pluralism. But for present purposes, it is enough to say that, while text and history may provide helpful context to our constitutional debates, the most important driver of results in constitutional cases is now and has always been judicial attention to the consequences of decisions. That reality cannot be avoided by insincere reliance on imprecise text or contested history.
Judges will judge, which requires hard choices and self-conscious awareness of the personal values that motivate the resolution of difficult constitutional questions. Hiding those values behind the misleading rhetoric of text and history reduces government transparency and threatens the rule of law. Pragmatic pluralism is not perfect, but it is the most accurate description of our constitutional traditions and may simply be the most we can expect from life-tenured judges with enormous power interpreting an ancient document that, for better or worse, we still treat as our fundamental law.
-- Eric Segall