The world we leave our children

[Marie A. Failinger]

On Wed, 8 Oct 1997, Alan Gunn wrote:

>New York Times v. Sullivan challenges the very idea of "constitutional
> theory." There is really no theory, and very little of the constitution, in
> the opinion
>
>   I'm inclined to think that this lack of theory is partly but not entirely
> a good thing: judges are reasonably competent at creating and applying
> common-law doctrines but who thinks they are theoreticians (if
> constitutional theory is really a coherent concept). The "not entirely" is
> because the legislature can't overrule constitutional decisions as it can
> common-law ones, so a common law beyond the reach of legislative correction
> is scary.
>
>   Are other areas of constitutional decisionmaking really different? (This
> is a genuine question, not an attempt at making some sort of point.) If not,
> wouldn't it be best to acknowledge the fact and let the court write opinions
> based more on its sense of what's right or wrong than on the pretense that
> the constitution contains a ten-factor balancing test for this, or a
> three-level inquiry for that? And wouldn't it also follow that the court's
> insistence on keeping the legislature out of these matters (as in Boerne) is
> wrong?
> Alan Gunn
> Notre Dame Law School
>

At its best, "theory" challenges judges to probe the consistency and
fairness of their gut instincts, and to uncover and evaluate the
assumptions on which they are based.  Thus, a three or ten-part balancing
test without an explanation and justification of the parts is no better
than a monolithic rule is no better than the direct application of a value
(like good faith).

Justices who are not willing to be corrected by "theory" in this sense had
then better be ready to be corrected by legislatures, and legislatures who
are not willing to be corrected by "theory" because of the valid need for
compromise decisions and responding to the immediate emotions of the
constituency should be willing to be corrected by judges.

One sees judicial opinions where a judge is almost willing to say, the
legislature must be right and I was/could be wrong.  Can anyone think of a
case in which legislative leadership has admitted, we were wrong and the
judge was right (that is, admission as opposed to acquiescence?)

Marie A. Failinger
Hamline University School of Law
mfailing at piper.hamline.edu