Choosing among interpretive choices

As Professor Pino’s contribution correctly recognizes, the threshold choice of interpretive method is normative. No book, let alone a chapter, can give the last word on such a choice. Professor Pino’s elucidation of three models of constitutional interpretation, however, clarifies the choices facing a court. This section fleshes out the connections between interpretive method and higher values sketched above. By doing so, we can better grasp the normative stakes behind our choice and even appreciate some affinities that hide behind apparent methodological differences.

Although we usually understand rule- and value-based constitutional interpretation as polar opposites, they share a surprising structural resemblance. The rule model in its purest and perhaps caricatured form conceives of constitutional adjudication as the application of determinate legal norms - norms not of the judges’ own choosing - to the case at hand. This may not often be a mechanical task, but it nevertheless aspires to be a search for authority, not an exercise in lawmaking or co-creation. To be clear, this model need not assume the original constitution is gapless. It simply, and more modestly, seeks to follow whatever authority it can find when it can find it.

Interpretation that regards the constitution as the instantiation of higher, ultimate values is emphatically less formal and historical as a legal matter but also has a parallel deductive structure. As Professor Pino’s chapter suggests, for such an approach to be justified, it must presuppose (a) moral reality (b) that is determinate and accessible to the interpreter and (c) readily translated into adjudicative decisions. In this respect, value-based interpretation has a structure similar to rule-based interpretation; simply substitute something like natural law for the human positive law of the original constitution. One might even characterize value-based interpreta


Perhaps worries about the EU democratic deficit is Europe’s version of the United States’ concern about the countermajoritarian difficulty in public law.

tion as a search for authority of a higher kind. One substitutes the fixity of legal formalism for moral formalism.

Such an approach, of course, depends on strong claims about moral metaphysics and epistemology. This is one of the greatest challenges facing value-based interpretation - one that is compounded to the extent its practitioners do not grapple with those deeper commitments or even profess skepticism about them in other contexts. Furthermore, in its most robust form, it presumes controversially that non-judicial self-governance is excluded or marginal as an objective value. Rule-based interpretation, by contrast, avoids the baroque metaphysics of value-based interpretation. The challenges legal indeterminacy poses to formal interpretation pale in comparison to arguments about the competing demands presented by questions of human rights, the common good, and ideal political theory.[1]

This critique of value-based interpretation points to an affinity between rule- and principle-based approaches to interpretation: both seek to narrow the range of moral disagreement by rooting adjudication more closely to positive legal norms that exclude some set of reasons from consideration. To be sure, there are differences. Rules are usually conceived as providing on/off, exclusionary reasons, whereas principles have weight and merge with moral considerations. Nevertheless, legal principles also work to exclude moral considerations that do not pass a threshold level of fit with the positive law. In that respect, both rule- and principled-based constitutional interpretation allow previous, historical lawmaking acts to resolve cases even if the interpreter would choose a different outcome were she starting from scratch.

If we desire to exclude some domain of moral reasons from constitutional adjudication, the question remains whether rule - or principle-based decision-making is a superior approach. To say the debate and literature on this question are substantial is an understatement, so I will limit myself to a few observations.

A preference for rule-based, constrained approaches to interpretation need not entail moral skepticism. In fact, any plausible argument for such an approach will draw on arguments about political legitimacy, institutional competence, and the like. To be sure, formal, rule-based approaches in many cases preclude judges from weighing in on first-order questions of morality and justice. For example, a constitution that provides a clear rule on whether a legislative limitation on euthanasia is permitted may relieve a court from considering the justice of euthanasia. Nevertheless, the choice to treat such a discretion-limiting rule as binding, as opposed to suggestive of further, principle-based reasoning or as the manifestation of an objective moral value, reflects a second-order moral judgment about the proper, limited role of a constitutional court.

Normative argument on interpretive choice is therefore inevitable.[2] In this respect, we see connections between value-based approaches to interpretation and their principled and rule-based alternatives. The ultimate question is - given the nature of moral reality, the best reading of political theory, and questions of institutional competence - deciding the best way for a court to approach a constitution. The weakness of the value-based approach to interpretation, as Professor Pino suggests, is its unargued and controversial assumption that constitutions ought to be regarded as instructing interpreters to implement ideal morality directly in the context of adjudication.

Both principled and rule-based approaches recognize that rule-of-law values, which themselves draw on ultimate values, cut against a strong presumption that a constitution instantiates a system of ideal political morality. Both recognize that second-order considerations like respect for institutional history, coordination benefits, norms of equal treatment, and values of democratic self-determination preclude such a muscular judicial role in constitutional adjudication. Both constitutional framers and, to the extent a system values judicial precedent, constitutional interpreters should have the power to fix legal norms in ways that depart from subsequent interpreters’ understanding of ideal theory. Even though those actors may make moral mistakes, there are good second-order moral reasons to give those actors the power to (at least sometimes) entrench those first-order errors. The disagreements between rule- and principle-based interpretation in any given legal system will turn on the comparative strength of first-order and second-order moral reasons in constitutional adjudication.

This judgment will, in part, turn on (a) how demanding our first-order theories of justice and morality are and (b) the moral character of a particular constitution as measured by ideal morality. The cost of rules is entrenching moral error. Their benefits are certainty, efficiency in decisionmaking, and any expertise conferred by the decisionmaker. Furthermore, when rules are chosen by the populace to constitute their republic, respecting those rules respects self-determination. Principles, by contrast, trade interpretive determinacy and efficiency while smoothing the rough edges of over- and under-inclusive rules and attributing to its framers the best moral reading available.

These tradeoffs are familiar, but I would like to underline their relationship to background moral and political theory. The more demanding the background theory - the more confidence we have in the determinacy of moral and political argument - the more likely we are to see errors in particular rules and therefore to find a principled approach more appealing. On the other hand, the more that we see first-order questions of constitutional structure, human rights, and the tradeoffs inherent in pursuing the common good as matters upon which people can disagree within a range of reason, the more appealing a rule-based approach to constitutional decision-making: it is possible the framers (or a legislature to whom the framers have given implementing authority) struck the wrong balance in crafting a rule, but to the extent we are uncertain, the rule of law and legitimacy costs of judicial supervision may outweigh the benefits of any fine-grained calibration the courts may offer.

The reverse is also true. The rule of law and self-governance, while important, are not unqualified human goods and different people may place different weight on them. If one thinks the moral goods of stability, predictability, and the like are comparatively weaker, or at least equally contestable as moral questions at issue in particular cases (e.g., the right to euthanasia, etc.), one would be more willing to engage in principle-based decision-making even when the answer on the first-order merits are uncertain.

A person who finds that many questions of human rights and justice fall within the range of reasonable disagreement, especially when rights conflict with rights, and who thinks that rule-of-law and self-governance values are worth defending so long as the constitutional system passes a threshold level of moral acceptability, will be more inclined toward rule-based interpretation. This is not moral skepticism - there is no moral obligation to uphold wicked constitutional orders - but rather a recognition that often such matters are questions of practical judgment not answered by neat deduction. Furthermore, there are reasons to question whether case-by-case adjudication by courts is the best way to resolve these practical questions. In this respect, we can find a defense of formalist originalism that combines Aristotle’s understanding of phronesis, Aquinas’s explication of determina-tiones, and more contemporary arguments about institutional competence and self-governance. In short, proportionality reasoning is not a science and it is not clear that jurists should exercise such final judgment.

Principle-based interpretation, embraced by Professor Pino and much constitutional theory outside the United States, suggests the opposite stance. It indicates a belief that first-order questions of justice are more determinate than the formalist concludes or, to the extent they present uncertain questions of practical judgment, those questions can and should receive ultimate resolution in the courts. Alternatively, or in conjunction, it suggests a comparative devaluation of any rule-of-law or self-determination benefits that formalism garners by treating constitutional (or delegated legislative) rules as excluding further judicial reconsideration.

It is in this respect that the value of relationality - highlighted by the authors of Italian Constitutional Justice in Global Context and many contributors to this volume - comes to the fore. The relational orientation views the Italian Constitutional Court (“ItCC”) as the organ responsible for (a) coordinating relations among the Italian courts, the Italian parliament, and other European legal institutions, and (b) interpreting the constitution in a manner that facilitates dialogue among the plural voices in Italian democracy. Implicit in support for the relational approach is the judgment that ongoing (ItCC-facilitated) deliberation between plural voices and institutions is the best way to pursue the common good through law. This contrasts with the judgment that it is better to seek authoritative, entrenched decisions by the political actors24 or that apex courts should offer the final word on questions of value implicated in the constitutional order. Relationality presumes it is best to view the constitution as negotiable - neither fixed nor entirely up for grabs - and holds that the ItCC’s role is to be a prime mediator, albeit one that also has its own views about the questions at issue.1

These normative presuppositions are plausible, yet contestable, as are the evaluations lurking behind arguments for competing political approaches to interpretation. Professor Pino’s contribution identifies how those threshold value choices ground interpretive method and his defense of principledbased interpretation lays a foundation for a normative defense of the ItCC’s relational jurisprudence.

  • 1
  • 2,V. BARSOTTI, P.G. CAROZZA, M. CaRTABIA, A. SlMONCINI, Italian Constitutional Justice in Global Context, op. cit.,255-y).
  • 24 “Political actors” here primarily refers to constitutional framers and legislators, though, depending on one’s theory of adjudication, it can refer to judges given authority to lay down legal norms backed by stare decisis.
  • 25 Cf. G. WEBBER, The Negotiable Constitution: On the Limitation of Rights, Cambridge, Cambridge University Press, 2010.

  • [1] A defender of value-based interpretation might seek to escape this critique by contending that values-based constitutional interpretation applies standards of “reasonableness” on a case-by-case basis, rather than engaging in formalist moral reasoning. Here, values-based interpretation looks less like Platonic moral deduction than the application of Aristotelian moral judgment. The escape leads to further questions. To the extent the case-by-case approach draws on related, prior cases, it is hard to distinguish it from the approach relying on legal principles. If not, it is fair to ask if courts are best suited to exercise this judgment, which is by often subject to reasonable debate given the uncertain character of the science.
  • [2] See, e.g., S. MACEDO, The ïnescapability of Natural Law, in 5 Benchmark 117 (1993).
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