Constitutional Theory and the Activismometer: How to Think About Indeterminacy, Restraint, Vagueness, Executive Review, and Precedent

Abstract

Constitutional theory is bedeviled by five persistent controversies: (1) what to do when historical evidence is difficult to assess and does not readily resolve particular disputes; (2) how to define judicial activism and decide how much of it is proper; (3) how to deal with vagueness and borderline cases; (4) how to understand the relationship of judicial review and executive review; and (5) how to reconcile interpretive theory with possibly-erroneous precedent. This article contends that these problems can be solved, or at least framed to make a solution possible, by understanding the relationship of knowledge to the Constitution. I defend three principles regarding our knowledge of the Constitution, all consistent with either originalist or non-originalist constitutional ontologies. First, assertions about the Constitution require knowledge; agnostics may not legitimately impose constitutional judgments on others. Second, constitutional knowledge, like knowledge about anything, requires more evidence as stakes increase; the weightier we deem judicial review, the more certainty it demands. Third, those in a position to speak authoritatively about the Constitution — which is not all officials at all times — should not ignore relevant evidence. These three principles can put our five controversies on the road to solution: (1) The independence of these knowledge-related principles from the relationship of the Constitution to history explains why the prospect of constitutional ignorance neither requires nor undermines originalism. (2) Improper judicial activism is using too low a standard for knowledge about the Constitution, speaking despite agnosticism, or defining one’s role in constitutional conversation too broadly. Improper judicial passivity is using too stringent a standard, suppressing evidence relevant to satisfying it, or defining one’s role in constitutional conversation too narrowly. (3) Combined with these principles, an epistemic view of vagueness — which posits precise, but unknown, boundaries to concepts — means staying far enough away from uncertain constitutional boundaries given the current stakes. (4) Principles of restraint govern legislative and executive action as well as judicial action, but the stakes may differ. Enforce-but-don’t-defend policies like the Obama Administration’s approach to DOMA are justified if executive review is a higher-stakes context than judicial review and the evidence falls between their respective knowledge thresholds — akin to a compensate-but-don’t-imprison policy when proof falls between civil and criminal standards. Further, if executive review requires proof at all, then executive officials must sometimes must enforce laws whose constitutionality they doubt, passing the constitutional buck back to Congress on a “not always my job to enforce the Constitution” rationale. That rationale is independently plausible in an intrabranch form for subordinate executive or judicial officials. (5) If interbranch and intrabranch constitutional buck-passing can be legitimate, so can intertemporal buck passing; a later Court might similarly pass the buck to an earlier version of itself. Limits on executive review thus provide a model for reconciling entrenched precedent with theories of interpretation labeling those precedents as erroneous.