Constitutional Theory & The Political Process
Constitutional Theor y & The P olitical Process
Stephen Richardson 0 1
0 Pepperdine University, School of Public Policy
1 Thi s Article is brought to you for free and open access by the School of Public Policy at Pepperdine Digital Commons. It has been accepted for inclusion in Pepperdine Policy Review by an authorized editor of Pepperdine Digital Commons. For more information , please contact
Constitutional Theory & The Political Process
By: Stephen Richardson
Constitutional Theory is at the center of legal and political debates in the United States. In recent decades,
legal scholars and politicians alike increasingly treat their respective theories of interpretation as articles
as faith. From originalism, to textualism, to treating the constitution as a ?living document,? many contend
that their theory is better than the others and offers the most suitable answers to raging constitutional
debates. This paper tests that popular convention by examining how the Constitution was written, and
whether there is indeed any one way to interpret it. I will then compare and contrast two dominant
theories of interpretation; Originalism and Legal Pragmatism to show their strengths and weaknesses.
Further, I will examine four landmark Supreme Court cases to outline examples of where both theories
got it right and wrong. This analysis will reveal that both theories lead to destructive results when
presiding judges ignore important political realities of their day and rule based on ideological or
theoretical leanings. Conversely, it will show that both theories lead to constructive results when the
presiding judges take political realties into account and consider the consequences of their rulings. Thus,
the main argument of this paper is that political realities should never be divorced from judicial rulings.
This analysis will also show that the political process is integral to sound jurisprudence, and that the
constitutional framers left room for this in the way they wrote our most sacred document.
Constitutionalism, Constitutional Theory, Theories of Interpretation, Originalism, Legal Pragmatism,
Jurisprudence, Supreme Court, Political Process, American Politics, Political Realities
Any student of American Law ought to be able to readily answer the question ?What is
Constitutional Theory? in a satisfactory manner. A working definition can be reduced to ?theories and
debates about how the Constitution should be interpreted.?1 The three dimensions of these
interpretations are The Prescriptive, i.e. ?telling people what to do;?2 the Descriptive, i.e. ?what the
evidence shows;?3 and the Normative, i.e. ?what ought to be the case.? Through all the debate, ambiguity
and nuance, various ?theories of constitutional interpretation? arise to give legal scholars and policy
makers a range of lenses through which they can analyze constitutional questions from. Originalism and
Legal Pragmatism remain both dominant and controversial forces in this field.
Proponents of any one theory often contend that their specific approach is best and serves a
?onesize-fits-all? purpose for settling constitutional debates. I, however, argue that this is inherently misguided
and misses the whole point of constitutional theory. I contend that the Constitution was left vague, broad,
and/or ambiguous in certain areas explicitly for the purpose of creating versatility in interpretation. This
is particularly important to note because the architects of the Constitution disagreed on many points,4
and the question of who exactly qualifies as a constitutional framer lacks a clear answer.5 It can be
assumed then, that vague passages in the Constitution are purposefully constructed as such. Accordingly,
many clauses lack one definitive meaning, making singular interpretations either impossible or
selfserving to the interpreter, if not both.
The debate over certain interpretations should, and largely does, reflect the political realities of
the time, because it is the political process itself that decides which interpretation prevails. For instance,
1 Michael J. Gerhardt, Stephen M. Griffin, Thomas D. Rowe, Jr., Lawrence B. Solum, ?Constitutional Theory: Arguments and
Perspectives.? LexisNexis, 2013. 4-7.
2 David A. Strauss, ?What is Constitutional Theory?? California Law Review. Vol 87. (1999). 582.
4 Thomas E. Baker, ?Constitutional Theory in a Nutshell.? William & Mary Bill Rights Journal. Vol. 13 (1). 2004. 74.
5 Baker, ?Constitutional Theory in a Nutshell.? 74.
the political realities of the 1980s gave rise to Originalism? a theory that was previously obscure, and
certainly never prominent.6 Perhaps the Founding Fathers never intended for the Constitution to provide
answers for every question that may arise in the political process of the future. There is certainly no
evidence that this was the intention of even a majority of framers, much less that of the entire body. Any
claim to the contrary is sorely lacking in evidence and is likely the result of injecting modern debates, void
of meaningful context, into political history. Instead, the Constitution was almost assuredly drafted to
serve as a framework for guiding the political process, which comes to these conclusions by its own
devices. To be clear, there are no obvious explanations for the issue at hand, and no one has all the
answers. The point of this paper is to illustrate just this, and that to claim the opposite is folly at best. The
ambiguous nature of the Constitution and its framing are the very things that make both a Supreme Court
and constitutional interpretations necessary.
To reach truly insightful conclusions when reading the Constitution, there ought to be a pluralistic
tension between originalist and pragmatic interpretations. This tension is present so that we remain true
to our roots and to the spirit of what was intended when the Constitution was written. Only after
reflecting honestly on these roots can we make practical departures from original intent when needed, to
respond to the needs of the present. If a purely originalist approach prevailed in all manners of law and
politics, we would never move forward, and many debates would be left unresolved. If a purely pragmatist
approach prevailed in the same way, judges and lawyers would have a license to depart from the ?spirit
of the law? as they see fit, effectively acting as unelected legislators. In short, either extreme would result
in consequences too radical and/or too disruptive for the political system to endure.
6 Originalism first arose in 1980, and then became a prominent theory of interpretation throughout that decade, being at the
center of much legal and constitutional debate from then until the present day. See: Bret Boyce, ?Originalism and the
Fourteenth Amendment.? Wake Forest Law Review, Vol. 33 (4). 1998. 910-913.
To reconcile this, pluralistic interpretations ought to prevail, so as to fit the best aspects of a given
theory in proper contexts, resulting in the most constructive outcome. To illustrate these points, I will give
a brief explanation of both originalism and legal pragmatism. In doing so, I will show how neither can be
used in isolation to settle constitutional debates. After this, I will examine several Supreme Court rulings
and state; (1) their relation to either theory and (2) their influence on the legal-political order. Lastly, I will
conclude with the lessons learned from examining these two theories and four Supreme Court cases.
Originalism is a constitutional theory which contends that meaning of the Constitution?s various
passages are fixed in time, and that these definitions are both knowable and provable.7 Central to this
theory is the ?fixation thesis,? which maintains that a constitutional clause?s original meaning is fixed and
does not change over time or with evolving socio-political contexts.8 The only way the meaning can be
changed, according to this theory, is through formal constitutional amendments - what is known as ?Big
C? Constitutionalism.9 Originalists believe that it is not their duty to ?make law? but to interpret it in the
most strict and principled way possible, regardless of the consequences that may follow.10
Originalists would say that judges ought to make the proper decision regardless of where that
decision takes them.11 This is a ?let the chips fall as they may? approach that values the integrity of
principled judicial decision-making over achieving desirable outcomes. This notion manifests itself in the
?constraint principle,? one which holds that judges should be bound by the original meaning of the text,
assuming that the original meaning can be deduced.12 Further, originalists contend that judges are not
7 Lawrence B. Solum, ?What is Originalism? The Evolution of the Contemporary Originalist Theory.? Georgetown University Law
Center, May 2, 2011. 1-3
8 Solum, ?What is Originalism?? 1-3.
9 Michael J. Gerhardt et. Al, ?Constitutional Theory: Arguments and Perspectives.? 33-38.
10 Randy E. Barnett, ?Scalia's Infidelity: A Critique of ?Faint-Hearted? Originalism.? 75 U. Cin. L. Rev. 7-24 (2006). 9-11.
12 Solum, ?What is Originalism?? 1-3.
free to disregard this meaning of the text, assuming that this true meaning can be demonstrated
The problem with this approach is the presumption that; (1) there is a truly empirical way to
interpret the text begin with and (2) that any passage has only one meaning. Originalists further suppose
that this meaning can be shown beyond reasonable doubt. But what ?original? meaning is one to deduce?
Is it the ?original intent? which is the intention of the writers, or the ?original public meaning,? which is
the way it would have been understood by the public at the time of its writing?13 Moreover, what if these
two contradict? What if the framers of the constitution disagreed on specific clauses (which we know to
be true in many cases)14 ? which interpretation do you abide by? How does one determine which framer
is more credible?15 How does one determine which original interpretation is best if there are more than
one (which there are in several cases)?16 What if a clause is so ambiguous or vague that one cannot
possibly come to a definitive answer? These are major hurdles for Originalists, and the source of much
criticism levied at them. Quite often, originalist rulings are justified by cherry-picked pieces of historical
data, or the willful disregard of contemporary evidence. Such is the danger of abiding by this theory in all
cases ? it must be tempered or even abandoned at times, something Justice Scalia has been ironically
criticized for in doing by more strict and loyal originalists.17
Legal Pragmatism is a bit of a paradox in that it is a constitutional and legal theory that rejects
theoretical frameworks. Daniel A. Farber, a prominent legal theorist, contends that ?Constitutional law
needs no grand theoretical foundation. None is likely ever to be forthcoming, and none is desirable.
13 Bret Boyce, ?Originalism and the Fourteenth Amendment.? Wake Forrest Law Review, Vol. 33 (4). 1998. 915-918.
14 Ibid. 915.
17 Randy E. Barnett, ?Scalia's Infidelity: A Critique of ?Faint-Hearted? Originalism.? 75 U. Cin. L. Rev. 7-24 (2006). 13-16.
Instead, legal pragmatism is a sufficient basis for constitutional law.?18 He then goes on to describe legal
pragmatism as a method of ?solving legal problems using every tool that comes to hand, including
precedent, tradition, legal text, and source policy.?19 The goal of the pragmatist is to find the ruling or
outcome that is the most constructive, or rather, least disruptive for society, and one which best preserves
the integrity of judicial precedent and the legal order.20 In this way, it is very consequentialist, as the
ruling?s results are heavily considered.
Due to the absence of theory, heavy reliance on real world application and emphasis on
consequences, Legal Pragmatism is essentially the antithesis of Originalism. Originalist rulings follow the
theory regardless of where it leads to, while pragmatist rulings try to create the least radical, least
disruptive, and most constructive outcome. Legal pragmatism is often criticized as being unprincipled and
prone to abuse, but this criticism is unfair. Richard Posner, one of the most influential legal scholars of the
past century, has famously been the biggest proponent of this theory in recent decades. According to
Posner, there are Eight Principles of legal pragmatism:21
1. The duty to decide is the primary duty of a judge
2. Law is not limited to materials already in existence?judges will have to make law
3. When materials do not yield answers, judge?s rule is legislative and must be both followed and used
4. No master logical or empirical methods or theories are available for judge?s decision-making (there
is no one universally right way to interpret the constitution, ex: originalists do not believe that only
a man could be president although it says ?he? in the constitution)
18 Daniel A. Farber, ?Legal Pragmatism and the Constitution.? 72 Minn. L. Rev. (1988). 1332.
20 Michael J. Gerhardt et. Al, ?Constitutional Theory: Arguments and Perspectives.? 68-72.
21 Ibid. 70-71.
5. Must bear in mind not only the consequences of a decision for the parties but also the effects on
such systemic values as continuity, predictability, and stability of legal rules and decisions
6. If consequences are unknowable, judges need rules for dealing with uncertainty (ex: burden of
7. Ignore social standing, personal merits, and political influence of parties when making a decision
8. A judicial opinion should state the true grounds of the judge?s decision
As can be seen, this theory is anything but a device for the fickle and self-serving as it is as at times
portrayed. There are indeed guiding principles and criteria by which to determine the best (or least
disruptive) outcome. There are, however, valid reasons to be worried about judicial activism,22 as the first
principle insinuates that a judge must take a stance, and the second clearly states ?judges will have to
make law.? For those judges wishing to take passive stances and make the least impactful decisions, legal
pragmatism would not be the best guiding theory.
US Supreme Court Cases: Where Originalism Got It Right
District of Columbia v. Heller, 554 U.S. 570 (2008)
The landmark Supreme Court case Heller is widely seen as one of the most important Supreme
Court decisions in recent years, and as a triumph of conservative ideals over unprincipled liberalism. Most
importantly, Heller showed how the original meaning of the Second Amendment is still relevant today.
The outcome of this case proves that originalism has its merits and that the ?spirit of the law? in its original
inception can be adapted to fit modern realities. This was the first Supreme Court case to decide if the
Second Amendment guaranteed an individual the right to keep and bear arms for self-defense. The court
22 Many judges, politicians and legal scholars warn of judicial activism ? Judges imposing their own will and opinion onto the
law, under the guise of constitutional theory. See: Baker, ?Constitutional Theory in a Nutshell.? 73.
ruled precisely that, thereby setting a new precedent for subsequent jurisprudence and political norms
across the United States.
The central question in this case was ?whether a District of Columbia prohibition on the
possession of usable handguns in the home violates the Second Amendment to the Constitution.?23 Justice
Scalia first tackles this question by dissecting the text of the Second Amendment under the presumption
that it was meant to be understood by the voters of the American founding period, as held in United States
v. Sprague (1931) and Gibbons v. Ogden (1824).24 Scalia states that the Amendment has two clauses: a
prefatory clause, which announces the purpose of the second clause, and the operative, which in turn
gives the command or purpose of the Amendment.25 The function of the prefatory clause is to clarify the
operative without limiting or expanding the scope of the latter. Justice Scalia provides contemporary
evidence to show that this was the norm at the time, making a compelling case for his interpretation.26
With all this in hand, Justice Scalia stated that another way of wording the Amendment is, ?Because a well
regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms
shall not be infringed.'?27
With this clarification, one can argue that the purpose of the people?s right to keep and bear arms
is to serve in a ?well regulated? militia - but is this really the case? To answer this, Justice Scalia again
draws from contemporary evidence. He cites several examples from the 18th century of the phrase ?the
right to bear arms? used in unambiguous ways to denote the right to carry weapons outside of a militia
or other martial purposes.28 Examples of this include nine state constitutional provisions written in the
late 18th and early 19th centuries ?which enshrined a right of citizens to ?bear arms in defense of
23 ?District of Columbia, et al., Petitioners V. Dick Anthony Heller.? Supreme Court of the United States, June 26, 2008. 1.
24 Ibid. 3.
25 Ibid. 3-6.
26 Ibid. 3-7.
27 Ibid. 3.
28 Ibid. 11.
themselves and the state? or ?bear arms in defense of himself and the state.?29 Thus, it can be deduced
that the original meaning of operative clause included the right for private citizens to defend themselves
and the State, while not being limited to service in a militia.
There were two final hurdles that Justice Scalia had to overcome: the original meaning of ?well
regulated militia,? and ?Security of a Free State.? To the former, Scalia notes that the phrase ?The Militia?
appears five times in the text of the constitution (three times in Article I section 8, once in Article II section
2, and once in Amendment V) and this, along with the Second Amendment, makes for a total of six
mentions.30 Scalia then goes on to convincingly argue that the former five mentions denote a Militia
already in existence, rather than one to be raised by Congress as with an Army or Navy.31 ?The Militia?
Scalia argues, therefore refers to every able bodied man; adapted to modern times this essentially means
every qualified citizen.32 Scalia argued that Congress may limit this, as legal limitations are the legislator?s
prerogative, but outright bans on the possession of firearms, and categorical limitations based on an
individual?s identity, are not. Finally, ?Security of a Free State? was found to simply mean the ?security of
a free polity? which the court argued the Second Amendment is conducive with.33
Justice Scalia concluded the majority opinion of the court with a very powerful and insightful
?Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army
is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence
is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this
Court to pronounce the Second Amendment extinct. We affirm the judgment of the Court of Appeals.?
In doing so, he outlined precisely why this decision is shining example of how the originalist
interpretation ought to be employed: to preserve the integrity of judicial rulings, and with it, our
constitutional rights. No attempt was made to uproot the political order, nor to take us back in time with
a regressive ruling. Instead, the controversial ambiguity of a supposedly anachronistic Amendment was
settled by this clarification. Further, the scope was kept narrow so as to refrain from becoming overly
political. Instead, the court opts to stay in the legal realm, so as not to encourage a runaway judiciary
ruling with unchecked judicial activism. The case settled the legal question in a legal manner, and a
constitutional question in a constitutional manner, while the political question was left to the political
process. This was constitutional theory done correctly, a watershed moment in American judicial history,
and a modern bedrock of American jurisprudence.
US Supreme Court Cases: Where Originalism Got It Wrong
McCutcheon v. Federal Election Commission, 572 U.S. 536 (2014)
The infamous Citizens United (2010) ruling and its lesser-known yet more dangerous succeeding
case on the same topic (campaign finance restrictions) may ultimately prove to be among the most
destructive rulings since the Lochner era.35 McCutcheon builds off Citizens United (2010) and takes the
ruling a step further. Chief Justice Roberts argued that aggregate contribution limits on donations to
political campaigns violate the Free Speech Clause of the First Amendment, striking down Section 441 of
35 In reference to: Lochner v. New York, 198 U.S. 45 (1905) which today is universally condemned as one of the worst Supreme
Court decisions in US History, ranking similarly to Dred Scott (1857). In recent decades there has been fierce legal debate about
what went wrong, and what constitutional theory is to blame. Please see: Daniel A. Farber, ?Legal Pragmatism and the
the Federal Election Campaign Act (FECA).36 Ultimately, what the court got wrong was the application of
the First Amendment?s original meaning to modern circumstances. My goal in this analysis is not to give
the one true meaning of the First Amendment and how its original intention translates to the present, but
to show how the majority opinion erroneously asserted to do just that.
Chief Justice Roberts states that the interest at stake is an ?individual?s right to engage in political
speech? and that ?the whole point of the First Amendment is to protect individual speech that the majority
might prefer to restrict, or that legislators or judges might not view as useful to the democratic process.?37
Roberts further went on to argue that the government does not have a strong enough interest in
regulating ?political speech? to prevent quid pro quo corruption ? or rather, that he did not see sufficient
evidence of this interest.38 Roberts argued that the ?only legitimate governmental interest for restricting
campaign finances? was preventing corruption or the appearance of it ? and by that, he meant overt
corruption that was plain to see.39
The court argued that ?spending large sums of money in connection with elections, but not in
connection with an effort to control the exercise of an officeholder?s official duties, does not give rise to
quid pro quo corruption.?40 Further, Chief Justice Roberts denied that spending large sums on behalf of a
candidate generates ?influence over or access to elected officials or political parties.?41 The majority
therefore rejected a modern political truism that political candidates are beholden to their larger donors.
This reasoning was articulated by distinctly differentiating quid pro quo corruption from ?general
influence.?42 The court argued that the latter must be protected in order to ?safeguard basic First
36 ?McCutcheon et al. v. Federal Election Commission.? Supreme Court of The United States, Argued October 8, 2013?Decided
April 2, 2014. 1-2.
37 Ibid. 3.
38 Ibid. 4.
39 Ibid. 3-4.
40 Ibid. 4.
Amendment rights,? and that it is better to ?err on the side of protecting political speech rather than
It is apparent that this majority opinion undermines nearly two hundred years of legislative acts,
which limits the influence of money in politics, and willfully denies political reality.44 Furthermore, this
majority opinion uprooted centuries of American jurisprudence which has aimed to stymie the noxious
influence of quid pro quo corruption in the political arena. In this sense, the ruling truly does seek an
originalist meaning, as it wishes simply to bypass modern legislation and jurisprudence deemed
inconvenient to the end-goal of freeing up campaign contributions. This was indeed a case of judicial
activism, which is ironic considering that most fierce critics of that phenomenon are originalists. Cass
Sunstein, a leading constitutional theorist, outlines the dangers of this logic, saying that movements to
original intent are movements too radical if it contradicts well accepted political norms.45 If we were to
truly adopt the meaning of constitutional text as when it was written, then we would make radical breaks
from current tradition and what we have come to accept.46 Uprooting entrenched political norms is what
Sunstein would consider improper conservatism ? and more akin to regressivism, as it simply undoes
political and/or legal developments, including breakthroughs in civil rights.47
What exactly our founding fathers intended when they gave us the right to freedom of speech
and of the press is not exactly clear, as contemporary discourse on the subject is broad and obfuscating,
or even contradictory at times. ?Free speech? and ?freedom of expression? as we think of them today did
not even exist in the 18th or 19th centuries, but were instead born in the 20th century ? and becoming
43 McCutcheon, 4.
44 Ronald Collins and David Skover, ?When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First
Amendment.? Top Five Books LLC, April 3, 2014. 16-17.
45 Michael J. Gerhardt et. Al, ?Constitutional Theory: Arguments and Perspectives.? 74-81.
entrenched into American jurisprudence only as recently the 1960s.48 What is clear however, is that open
discourse, accountability, and scrutiny of the Government by the press was seen by the constitutional
framers as essential to preserving the integrity of the political order. In that way, the First Amendment
was clearly designed as a mechanism to check corruption in government, elections and in the wider
political process. That is a reality that Chief Justice Roberts clearly tried his best to skirt around and skew
in order to justify a ruling he had already decided. George Mason famously stated at the Constitutional
Convention in 1787, ?If we do not provide against corruption, our government will soon be at an end.?49
Perhaps our ?originalist? Justices would be better served by spending more time reading what the
constitutional framers actually said.
Today, corruption is seemingly the norm, as money continues to poison our politics while
drowning out the voice of the common man.50 It is simply far-fetched to argue that the First Amendment
provides for this out of mere principle for ?political speech.? Chief Justice Roberts did not make a
compelling case by any measure, as his arguments were dubious at best and almost entirely lacking in
contemporary evidence. The Court abided by Justice Scalia?s philosophy of making the (supposedly)
principled ruling regardless of where it takes you, as the majority clearly did not care about the
consequences of their decision. This was a political question that should have been left to the legislature
to decide, as they already had in outlawing such actions to begin with. Justice Scalia has often stated that
constitutional rights come with limitations, and that there?s a process for legislators to properly enact
them. In this case, that very process was overruled and undermined, creating a controversial and harmful
effect on American politics by a judiciary that ruled with an astonishing lack of self-awareness.
48 Beverley Gage and Tom Goldstein, ?Schenck v. United States 1919.? C-SPAN: Landmark Cases. November 2, 2015.
49 Ronald Collins and David Skover, ?When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First
50 Ibid. 15-17.
US Supreme Court Cases: Where Legal Pragmatism Got It Right
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
Brown v. Board of Education is hailed as one of the most important Supreme Court rulings in US
history, declaring segregation in public schools a violation of the Fourteenth Amendment?s Equal
Protection Clause. It is a shining example for legal pragmatism, as it constructively settled a fierce
constitutional and political debate without destabilizing the legal or political order. Further, the court
convincingly adapted the original meaning of the Fourteenth Amendment to meet modern realities,
creating the desired outcome. The court?s clever ruling proved to be a pivotal moment of legal discourse
and entrenched new norms that are not only still in effect today, but also form bulwarks of civil rights.
Randy Barnett, a prominent legal scholar and famous proponent of Originalism argued that the
court in Brown could not reach the desired outcome in this case by appealing to the original meaning of
the Fourteenth Amendment, and therefore had to change its meaning.51 This argument is not unfounded,
as it is indeed difficult to argue that there was not a very specific purpose to the 14th Amendment when it
was passed.52 Barnett later concedes, however, that the ?privileges and immunities? clause refers to both
?natural liberty rights and the extra procedural protections of individuals provided by the Bill of Rights.?53
Barnett explains that this means there is indeed some breadth to the text, which gives discretion for
judges who rule on matters related to this Amendment.54 ?Some breadth? and ?discretion? are critical
concepts for our purposes in evaluating Brown, because the court took some liberties with the meaning
of the text, but nothing radical nor far-fetched. The fact that Barnett, a notoriously ardent proponent of
Originalism, defends the Court?s logic in Brown provides strong evidence for its merit. Indeed, Barnett
51 Barnett, ?Scalia's Infidelity: A Critique of ?Faint-Hearted? Originalism.? 21.
52 The Fourteenth Amendment was passed specifically to protect the citizenship and political rights of freed slaves. The original
intent of this amendment has one of the narrowest scopes of all 27 Amendments, and yet it has been used very broadly in the
20th and 21st centuries.
53 Ibid. 23.
goes into detail about how the court made the right decision despite the fact that ?original intent? had
nothing to do with the ruling.
Justice Warren?s famous line "separate educational facilities are inherently unequal? invoked the
Equal Protection Clause of the Fourteenth Amendment despite the fact that that is not what the clause
was intended for. The clause in question was written with freed slaves in mind, who were in need of more
basic political protections - not the right to attend desegregated schools. This however, does not mean
that Justice Warren overstepped his bounds - instead he adapted the original meaning of the text to fit
modern political realities. This was done properly and constructively through the use of a shallow opinion
with a narrow scope. The opinion was shallow because it was not about morality or race, but about the
right to education. The scope was narrow because it was tailored to the case at hand (desegregation in
public schools) without touching a wide-range of issues (such as Jim Crow laws) which would have
generated more resistance. Further proof of his argument?s merit is the fact that this was one of the few
unanimous (9-0) decisions in US history, entrenching it into jurisprudence and making it extremely difficult
to counter at a later date, if not impossible. All of this taken together has made Brown a critical Supreme
Court ruling, and one that legal scholars will continue to study for generations to come.
US Supreme Court Cases: Where Legal Pragmatism Got It Wrong
Roe v. Wade, 410 U.S. 113 (1973)
Roe v. Wade is one of the most controversial Supreme Court decisions of the last century for a
variety of reasons. For the purposes of this paper, I will look at the legal and political reasons, while
sidestepping questions of political morality. Roe is indeed a pragmatic ruling because the court used every
tool at its disposal to come to its view that the (presumed) right to privacy under the Due Process clause
of the 14th Amendment extends to women?s decision to have abortions.55 The court drew upon legal
reasoning as well as medical; i.e., it took a stance on when life begins.56 Further, in its ruling the court
answered a political question that was raging at the time: ?does the state have a compelling interest in
protecting the life of the fetus??57 Thus, the court exercised a deep opinion with a wide scope, and this is
where the court?s ruling was flawed.
Pragmatic rulings ought to have both shallow opinions, so as to avoid unnecessary controversy
and narrow scopes, so as to keep the ruling tailored to the case at hand instead of being applied to a wide
range of cases with few similarities. The purpose of legal pragmatism is to preserve the integrity of the
legal and political order, not to polarize both the electorate and the legislature. Critics of abortion often
argue that Roe is responsible for inflaming the political debate on abortion, even though it largely settled
the legal and constitutional question. The political debate over abortion that has raged in the United
States over the last five decades has become so intense that many commentators and even some
politicians openly condemn Roe as an illegitimate ruling.58 This Supreme Court ruling has subsequently
served as a political flash-point and a rallying call for more extreme advocates on both sides of the issue.
This debate does not preserve the integrity of the legal and political order, as pragmatic rulings
ought to and what the court attempted. Rather, it serves as a catalyst for controversy that weakens
legalpolitical order by sparking battles that ultimately tear at the social fabric. The outcome of this ruling is the
opposite of what was intended: to settle the abortion debate. It accomplished the opposite of what
pragmatic rulings are supposed to accomplish: come to the most constructive conclusion in order to meet
modern demands. In this way, Roe has proven to be a failure. There is an old legal maxim which states
55 Farber, ?Legal Pragmatism and the Constitution.? 1332-1333.
57 Ibid. 1333.
58 Alex McBride, ?Roe v. Wade (1973).? December, 2006.
?hard cases make bad law,? and that certainly applies here. Dr. Darren Staloff, an expert on
constitutionalism, personally told me that ?the best tradition in American jurisprudence in such cases is
to refuse to settle the issue, punt the ball back to the public sphere of politics, and hope for either a
legislative solution or a constitutional amendment.?59 Concerning Roe and the debate over abortion, it is
easy to see how that would have been the best course of action. However, because Roe is settled in
jurisprudence and because it was reaffirmed by Planned Parenthood v. Casey (1992), it has achieved
?super-precedent? status, meaning that it is entrenched in legal-political norms. Despite the flawed nature
of its ruling, any attempt to overturn this decision will prove to be extremely disruptive to the
legalpolitical order and would most assuredly produce harmful results.
The reasonings behind these Supreme Court rulings and their outcomes are evidence of two
themes throughout this paper. The first is that a dogmatic reliance on any theory of interpretation will
invariably produce negative outcomes. A judge must adapt the ?spirit of the law? to the realities of the
present but must also stay true to the text, lest we venture too far into uncharted territory. Second,
political questions are best left to the political process; but if the Supreme Court must arbitrate as the
final opinion, they ought to do so in the least impactful way possible. We have seen the negative effects
of deep opinions with wide scopes in rulings such as Dred Scott (1857), Plessy v. Ferguson (1896), and most
recently, Roe v. Wade (1973) ? all of which created more tension than they resolved. Conversely, we are
currently living through the consequences of decisions too radically regressive to be helpful to modern
society such Citizens United (2010) and McCutcheon (2014). The negative outcomes from these rulings ?
both Pragmatic and Originalist - were either too much to bear, or are approaching that threshold, and we
ought to learn from these examples. The lesson to learn is a preference for pluralistic rulings that
59 Dr. Darren Staloff in a personal email to me on November 22, 2017.
contribute the least to partisan entrenchment, while producing the most constructive impact on the
integrity of the legal-political order. Rulings that lead to disruptive and damaging results ought to be
avoided, even if it?s the constitutional theory one adheres to most often that takes the judge to that