Thoughts on the Churn Law

Halley, Michael | September 27, 2009

A grand alliance is forming, and new trenches are being dug on the old and hallowed battleground of the Constitution. Waving the stars and stripes of “constitutional design,” and richly equipping themselves with the weaponry of reason, scholars like Richard Fallon, Sanford Levinson, and Jack Balkin have taken the field to determine “what provisions for judicial review (if any) ought to exist in constitutions for all societies whose people and legislatures are seriously committed to respecting rights,” and to avoiding “constitutional crises” by “careful planning.” Fallon, a self-proclaimed “system-designer,” applauds himself for having “plowed rich ground.” Levinson and Balkin claim to be revealing a “secret” that, if they are to be believed, has not only gone untold and unnoticed since the nation’s Founding, but could have avoided the near apocalypse of our Civil War. Frederick Schauer’s ambition—to breed a race of lawyers and judges equal to the ignominy of slavishly adhering to precedent—is no less breathtaking. Asserting that “following precedents even when they seem wrong to the decision maker is . . . a large part of law,” he proposes to conduct empirical experiments to determine: (1)“whether those who self-select for legal training (or are selected for legal training)” are superior, before receiving that training, “at subjugating their preferences for the right answer to a norm of precedent”; (2)“whether those who are trained in the constraints of precedent (recent graduates of law school, for example) are better at following uncomfortable (to them) precedents than those who have yet to receive such training”; and (3)“whether those who self-select for judging, or who are selected to be judges, are better at following precedent than practicing lawyers of similar experience.” Whether these scholars’ wholesale embrace of intelligent design is the means to perfect constitutional systems commensurate with the universal call for freedom, or whether it desecrates the Founders’ legacy of a constitutional frame attributable neither to “human genius” nor to “reason and reflection,” but only to “time and experience,” remains to be decided; and it can only be hoped that the tenor of the debate will prove less rancorous than the all-out war currently raging between the proponents of intelligent design and those of evolution in the field of biology.