Easy Cases
![handle is hein.journals/scal58 and id is 419 raw text is: EASY CASES
FREDERICK SCHAUER*
We can't start to talk about philosophy and intent and spirit of the
rule if it's [written] there in black and white.
--George Steinbrenner
I.
Contemporary debates about the theory of constitutional interpre-
tation have generated profound and interesting disagreements, but the
participants in the debates still share a common focus. In one way or
another, virtually every constitutional theorist deems it primarily im-
portant to address the same question: where should we' go in search of
guiding principles for interpreting the linguistically open-ended clauses
of the Constitution, particularly those concerned with individual
rights?2 Other questions are commonly treated as subordinate off-
* Professor of Law, University of Michigan. A.B. 1967, M.B.A. 1968, Dartmouth College;
J.D. 1972, Harvard University. I am grateful to Mary Jane Morrison, Terrance Sandalow, Cass
Sunstein, and James Boyd White for their incisive and critical comments on an earlier draft of this
paper. I have also profited from the comments of the other participants in this Symposium, but I
have taken these comments into account only insofar as doing so would not deflate the sails of my
official commentators.
1. One who uses we as often as I do is properly called on to provide some specification.
See White, Law as Language: Reading Law and Reading Literature, 60 TEX. L. REy. 415, 442-43
(1982). In my case, we means nothing more nor less than the United States of America, and
thus has the same temporal and institutional ambiguities as any description of a nation. But
although I do not intend my use of we to mask or make contested points about constitutional
theory, there is still a message implicit in this use of the societal we. All members of a society,
and certainly to a greater extent those of us who write about that society, must share the responsi-
bility for the product of which we are in some way participants, in some way creators, and in some
way beneficiaries. Obviously certain individuals are more directly involved in some enterprises
than are others, and those individuals can properly be criticized or urged from a relatively exter-
nal vantage point. But the supernumeraries are also essential to the success of the opera, and a
frequent use of we is a reminder that commentators, lawyers, and judges are all characters in
the same performance. If I, as an American, as a lawyer, and as a student of the Constitution, can
share some of the pride in United States v. Nixon, 418 U.S. 683 (1974), New York Times Co. v.
Sullivan, 376 U.S. 254 (1964), and Brown v. Board of Educ., 347 U.S. 483 (1954), then I must, as
an American, as a lawyer, and as a student of the Constitution, share some of the blame for
Korematsu v. United States, 323 U.S. 214 (1944), Debs v. United States, 249 U.S. 211 (1919), and
Lochner v. New York, 198 U.S. 45 (1905).
2. Think about the commerce clause. It is extremely open ended in linguistic form, and](ViewImageLocal?handle=hein.journals/scal58&div=23&collection=&method=preview&ext=.png&size=3)
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