“Can judges do without theories of interpretation? Probably not.”

March 14th, 2012

Ken Kersch opines on Judge Wilkinson’s theory of having no theory.

 Judge Wilkinson seems more troubled by the seeming endless quest for the holy grail of the single best theory of constitutional interpretation (leaving, for the moment, theories of judicial function aside). Wilkinson spends little time setting out his own views, as opposed to critiquing those of others. But he seems to have an obvious soft-spot for more pluralist approaches. I would think, for instance, that Wilkinson would like the approach to the question taken in Philip Bobbitt’s book Constitutional Fate: A Theory of the Constitution (Oxford, 1984), which sets out, not a single “best” method, but surveys a variety of valuable and defensible interpretative approaches, all of which are held as arrows in a judge’s quiver. It is interesting that Bobbitt’s very pluralism seems to have dealt him out of this conversation, as in effect having no “theory.” (Wilkinson ignores Bobbitt too, of course, thus implicitly sharing the assumption of those he purports to be writing against). Since Bobbitt is not stumping for any single best method of interpreting the Constitution, he is left with no one to argue with in this hot-house, point-counterpoint, field, of which Wilkinson, in spite of himself, remains a dues-paying member.

Yes, all judges interpret, and thus apply interpretative theories. But there is a difference between monist interpretative theories – which aspire to universalism and consistency – and pluralist interpretive approaches. I think what Wilkinson means to do is advocate pluralism. This is, I think, what he means by being against “cosmic constitutional theory.” But his book, unfortunately, is far from clear on this point.