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2018 Jotwell: J. Things We Like 1 (2018)
Pragmatist Constitutionalism in Comparative Perspective

handle is hein.journals/jotwell2018 and id is 167 raw text is: Constitutional Law The Journal of Things We Like (Lots) https://conlaw.jotwell.com Pragmatist Constitutionalism in Comparative Perspective Author : Mark Kende Date : April 19, 2018 David Landau, Legal Pragmatism and Comparative Constitutional Law, in Elgar Handbook on Comparative Constitutional Theory (forthcoming 2018), available at SSRN. Law is a practical field. It resolves concrete disputes. Constitutional law, however, is often thought of as more theoretical than practical. For example, a common current debate in constitutional interpretation is between originalism and living constitutionalism. Both have been advocated and criticized to death. Thus, Thomas Colby and Peter Smith have argued that originalism does not consist of one overarching theory, and that it leaves many questions unanswered. Self-proclaimed originalists disagree on some major issues and acknowledge that courts must often 'construct the right answers. But William van Alstyne has _emphasized that living constitutionalists also have clashing visions. It is therefore a breath of fresh air to read David Landau's forthcoming book chapter, Legal Pragmatism and Comparative Constitutional Law. Eschewing these sorts of rehearsed debates between theories that each contain their own brand of formalism, Landau argues that legal pragmatism is an especially useful approach to interpreting the United States Constitution. It requires judges to acknowledge the indeterminacy of constitutional interpretation, to appreciate the importance of focusing on the detailed factual, empirical, and other contextual elements of the constitutional issues presented, and to achieve the best result possible using the toolkit provided by the law, and other 'eclectic criteria. Landau also shows that pragmatism is useful in comparative constitutional law, rather than seeing it as a uniquely American approach. Landau takes on the unenviable task of defining legal pragmatism. He acknowledges that no formalistic legal theories can provide a single right answer to constitutional questions. Originalism simply leaves open too many questions. It is also arguably wrong in many cases. For example, and despite arguments to the contrary, backwards-looking originalism cannot really support the result in Brown v. Board of Legal Education, 347 U.S. 483 (1954), or the idea that the Equal Protection Clause provides special legal protection to women. But Landau also says that the liberal legal philosopher Ronald Dworkin's judge, Hercules, has an impossible task. He could have added that Dworkin's solution is inevitably and conveniently politically liberal. And with entrants to the field like Jack Balkin and his living originalism, we now have even more varied results to contend with under the general umbrella of originalism. Landau asserts that both originalists and Dworkinian believers in liberal reasoning to right answers pretend to be value-neutral when they are not. Moreover, a Justice's perspective inevitably influences his or her rulings. Instead of abstract neutrality, Landau contends that constitutional interpretation is about the narrower task of problem solving, which is why the specific facts and context of cases, including empirical data and other forms of knowledge, are so important. Landau admits that formalist consistency is useful but argues that the law has other ends. Legal pragmatism employs a more inductive analysis than the deductive syllogisms of formalism. Thus, pragmatism often involves balancing the competing interests at stake, such as liberty and security, which also means fully acknowledging and weighing their relative importance. Relying on the pragmatic analysis of Daniel Farber and Suzanna Sherry, Landau shows how they praise Justice O'Connor's opinion in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), as drawing this balance by noting the individual's rights as well as competing national security interests. This pragmatic approach, Landau contends, helps us see the instrumental value of law to the present, rather than honoring the dead hand of the past as a goal in itself. 1/2

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