How Many Constitutional Amendments Are There?

The short answer: the number of times the Supreme Court has ruled on a constitutional question. Every time the Supreme Court grants certiorari, allows a case to move ‘upwards’ from state and Federal courts to its chambers, and then proceeds to rule–keeping in mind the supposedly relevant precedents, and on the basis of a coherent theory of the interpretation of legal texts–it offers us an amended constitution. Every act of interpretation–sometimes plain literalist, sometimes originalist, sometimes purposive–adds meaning and texture to the text of the articles of the Constitution. Thus the content of the Fourth Amendment is not to be found in the Constitution; it is to be found in the cumulative history of all Supreme Court rulings on cases that have rested on contested interpretations of the Amendment. What does ‘unreasonable’ mean? What does ‘search’ mean? What does ‘seizure’ mean? What does ‘persons’ mean? What does ‘effects’ mean? What does ‘probable cause’ mean? To decipher this meaning, scattered over thousands and thousands of pages of Supreme Court rulings is an almost insuperable and intractable task; it is much easier, therefore, to fall back on the simplest formulation of all: ‘The Fourth Amendment says that…’. But the filling out of that particular that-clause will call for the expenditure of considerable ink, and in the end, it will appear that the protections of the Fourth Amendment are considerably more ambiguous–in several dimensions–than previously imagined, by both its detractors and proponents alike.

These considerations show that talk of ‘constitutional protections’ must always proceed hand in hand with talk of constitutional interpretation, with the history of actual supreme court rulings on the constitutional question under discussion. Such inclusion is especially necessary when giving someone legal advice; as Justice Holmes sagely pointed out many years ago, the law is what the judges say it is: “The prophecies of what the courts will do in fact, and nothing more pretentious.”

Our nation is entering a period of great legal uncertainty; there is much talk of taking cover under constitutional protections, of seeking refuge from an authoritarian government under the covering canopy of the Bill of Rights. But the text of the Bill of Rights is not sufficient to provide such protection; the Supreme Court rulings on Bill of Rights cases are far more germane. To look only to the Constitution is dangerously complacent; talk of legal rights without actual legal protections is hollow.

Many a patriot is disappointed and disillusioned to find out that in point of fact the Fourth Amendment is almost hollow in content; its protections systematically eviscerated over the years by repeated weakenings through selective, ideological, and politically motivated interpretation. Mass surveillance; warrantless searches; stop and frisk; the list goes on. Where is the Fourth Amendment?, the patriot asks. The answer is: not in a small booklet, but in that section of the law school’s library that deals with constitutional law.

Constitutional conventions, two-thirds majorities, ratifications by state legislatures–such is the machinery of the constitutional amendment by legislative fiat. Such convolutions are kludgy compared to the awesomely efficient method of Supreme Court rulings; there, in the foundry of the Supreme Court’s chambers, new meanings are forged every year, every Supreme Court season.

Mass Incarceration And Teaching Philosophy Of Law

This coming spring semester, as in the just-concluded fall semester, I will be teaching Philosophy of Law. As I get down to thinking about my syllabus, one imperative seems overriding: I must ‘do more’ on mass incarceration (and related topics like the theory of punishment and the death penalty.) No topic seems more important, pressing, and urgent in today’s United States. In the face of the brutal particulars of mass incarceration (and the racism and War on Drugs that animate and sustain it), the highly theoretical particulars of the traditional debates in the philosophy of law–the nature of law according to natural law and positivist theories, legal reasoning, the interpretation of legal texts–seem curiously context-free, unanchored to empirical particulars pertaining to the lives of actual legal subjects. (To be sure, legal realist, critical legal studies, critical race, and feminist legal theories do animate and make concrete these discussions considerably; they also inject a much-needed dose of historical and political perspective.)

With these considerations in mind, a tentative outline for the upcoming semester’s syllabus suggests itself to me: begin with Lon Fuller‘s The Case of the Speluncean Explorers, using it to animate–or as my friend Cathy Kemp likes to say, ‘ignite’–discussions on natural law, positivism, and statutory interpretation; move on to Justice Oliver Wendell Holmes‘ classic The Path of the Law; follow this up with H. L. A. Hart‘s The Concept of Law (almost certainly not in its entirety), and then, switching gears, move to Michelle Alexander‘s The New Jim Crow and  Albert CamusReflections on the Guillotine. (As noted, this is an outline; I will supplement this basic structure with some selected case studies that will help illustrate the central issues at play in reasoning by analogy and precedent, and the dominant theories of constitutional interpretation.)

Needless to say, this is a pretty idiosyncratic syllabus, and I might be accused by many philosophers of law of leaving uncovered a host of topics that have traditionally been of interest to that demographic: rights, justice and equality, responsibility, legal procedure and evidence, torts, property, contracts etc. My syllabus shows a clear bias toward public law and ignores private law altogether; there is no critical legal studies; some traditional philosophers will be appalled to see Camus in this reading list; and so on. (The alert reader will have noticed however, that the first four topics on that laundry list cannot but occur, implicitly or explicitly, in a discussion of mass incarceration like the one undertaken in The New Jim Crow.)

I remain resolutely unapologetic about these omissions though. My syllabus will strike a reasonable balance between the ‘theoretical’ and the ‘applied’, and more to the point, it will bring into my classroom, that moral, political, and legal atrocity–mass incarceration–that is not only America’s greatest modern embarrassment but also, in some ways, the most relevant topic of all as far as my students’ lives are concerned.  I’d consider this the strongest reason of all in favor of its displacement of traditional material.

Statutory Interpretation, the “Nietzsche Rule”, and Stevens and Scalia in Zuni

From Chapter 8, (‘Doctrines of Statutory Interpretation’), Section 1, A. ‘Textual Canons’, 2 ‘Grammar Canons’, (f) ‘The Golden Rule (Against Absurdity) – and the Nietzsche Rule.  of William N. Eskridge, Jr., Philip Fricket, and Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy, Thomson West, American Casebook Series, Saint Paul, MN, 1988:

English-speaking jurisdictions have a few catch-all rules providing a mental check for the technical process of word-parsing and grammar-crunching. The golden rule is that interpreters should “adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that * * * leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further” Becke v. Smith 150 Eng. Rep. 724, 726 (U.K. Exch. 1836)….

The golden rule is…an absurd results exception to the plain meaning rule….

[C]courts should be willing to revise scrivener’s errors – obvious mistakes in the transcriptions of statutes into the law books….

The golden rule and its corollaries are now subject to academic debate. Although Justice Scalia recognized an absurd results exception to the plain meaning rule in Bock Laundry (concurring opinion) scholars of various persuasions maintain that an absurd results exception to plain meaning is inconsistent with the premises of the textualism. In Zuni Pub. Sch. Dist v. Department of Educ. 127 S.Ct. 1534, 1549-50 (2007), Justice Stevens’ concurring opinion rests the absurd result exception upon notions of probable legislative intent: if a plain meaning interpretation is truly absurd, that is prima facie reason to think Congress did not it (absent evidence to the contrary, of course). Justice Scalia roundly denounced that approach, in absolute language suggesting that he now agrees with his critics that there should be no absurd results exception to the plain meaning rule. Id. at 1555-59 (Scalia, J., dissenting).

Friedrich Nietzsche admonished in Mixed Opinions and Maxims No. 137  (1879): “The worst readers are those who proceed like plundering soldiers: they pick up a few things they can use, soil and confuse the rest, and blaspheme the whole.” All the Justices would agree with this sentiment; indeed, both Stevens and Scalia invoke it in their Zuni debate. We read Nietzsche’s lesson for the statutory interpreter to include the following: Be humble. Consider how other people use language. Be helpful to the project rather than hypertechnical.

(The Nietzsche excerpt is from (as cited): Friedrich Nietzsche, On the Genealogy of Morals (and Other Works), 175 (Walter Kauffman trans. ed. 1967). The authors also note, “David Krentel, Georgetown Law Center, Class of 1995, brought this maxim to our attention.”)

Brief commentary:

1. The merely obvious: not the first, and not the last, co-occurrence of Scalia and Nietzsche in a legal text or setting.

2. The invocation of “project” in the last sentence is intriguing. Indeed, the authors’ reading of Nietzsche’s “lesson” is interesting all around for its particular deployment of “humble,” “helpful,” and “hypertechnical.” The contrasts drawn and established are stark, all the more distinctive for the irony that Nietzsche  provokes for making us associate the advocacy of humility with him.