Orin Kerr and Constitutional Theories

January 26th, 2011

Orin just posted to SSRN what he calls a “first-principles theory of interpreting” the Fourth Amendment–an article titled, An Equilibrium-Adjustment Theory of the Fourth Amendment. The article “introduces a new theory that explains and justifies both the structure and content of Fourth Amendment rules.” While the Fourth Amendment is outside my area of expertise, it looks quite fascinating. An all-encompassing, over-arching, general, unifying theory of the Fourth Amendment seems like just the trick to reconcile “dozens of rules for very specific situations that seem to lack a coherent explanation.”

Yet, I am reminded of a series of posts Orin wrote over the summer on constitutional theory (see here and here). In these posts, and elsewhere, Orin is quite critical of what he calls “grand constitutional theories.” In his post titled Three Goals of a Constitutional Theory, he talks about “what seems to be the core difficulty with grand constitutional theories — that is, single overarching methodologies to construe the Constitution.” Orin was quite critical in this post of constitutional theories.

Because I don’t think a grand theory is realistic in a practical sense, I don’t value it as much as some others will. But that’s a decision based on values that requires picking the least bad of the options, and of course different people will disagree on those values.

I am curious if he thinks his grand theory of the 4th Amendment is “realistic in a practical sense”? Orin identified three shortcomings in constitutional theories.

In my view, the core difficulty is that constitutional theories must satisfy three competing and often irreconcilable goals. They must: (1) Offer a single normative theory that conceptually explains and justifies some decisions and rejects others, (2) Agree with contemporary social attitudes enough that the theory can be considered “mainstream” and therefore politically acceptable (required in a world of judges who must be nominated and confirmed), and (3) Be certain enough that does not just give judges the power to do whatever they want.

The hard part is that these three goals often work at cross-purposes. A conceptually elegant theory might not match contemporary views. A theory that matches contemporary views might not be certain. Etc. You can readily find a theory that matches any one of these criteria, but no one has a theory that matches all three: The evolution of American society from the time of the founding, paired with the rarity of express Article V amendments, just doesn’t leave room for that. As a result, each of the theories has a weakness. For example, originalism has (1), a good measure of (3), but then misses (2). In contrast, living constitutionalism and Balkinian originalism have (2), some amount of (1), but miss (3). And following stare decisis has (2) and (3) but misses (1).

I haven’t read Orin’s piece yet, but I wonder how, if at all, it satisfies these “three competing and often irreoncilliable goals.”

Orin writes further:

More broadly, if you’re going to adhere to a single theory, I think you need to pick a theory based on which of the three purposes you think are more critical than others. For example, I tend to be in the camp of the stare decisis follower in part because I think problem (1) is a less serious problem than the others. Justices generally aren’t theorists, after all, and Supreme Court decisionmaking generally requires decisionmaking by committee (which would make theoretical purity unlikely even if the Justices were theorists).

As for which theory Orin adheres to, I think he follows his judicial restraint/stare decisis meme. From the abstract:

The Article then offers a normative defense of equilibrium-adjustment. Equilibrium-adjustment maintains interpretive fidelity while permitting Fourth Amendment law to respond to changing facts. Its wide appeal and focus on deviations from the status quo facilitates coherent decisionmaking amidst empirical uncertainty and yet also gives Fourth Amendment law significant stability. The Article concludes by arguing that judicial delay is an important precondition to successful equilibrium-adjustment.

I look forward to reading the piece.