Nearly all of us who participate in constitutional argument in subjective good faith share a second-order methodology of constitutional decision-making—that is, an approach to working out both our first-order theories of constitutional interpretation and our judgments about appropriate results in particular cases. That shared method involves a search for reflective equilibrium between our prior or intuitive methodological assumptions (which sometimes may be vague or indeterminate) and our intuitive judgments concerning the appropriate results in particular cases. If our ex ante methodological theories are underdeterminate, reflection on new cases’ facts will lead us to specify our premises more fully. Moreover, in instances of initial conflict between judgments of desirable case-specific outcomes and previously adopted methodological commitments, the Reflective Equilibrium Hypothesis advanced in this Essay holds that adjustment can occur on either end. If we argue about constitutional issues in good faith, normally we will adapt our judgments concerning correct results to methodological premises that we have previously endorsed. But sometimes reflection on new cases will provoke an elaboration, qualification, or rethinking of methodological commitments. After advancing the Reflective Equilibrium Hypothesis as an explanatory theory of the main currents of constitutional argumentation, this Essay offers a brief normative defense.

Introduction

Nearly all of us who participate in constitutional arguments in good faith share a second-order methodology of constitutional decision-making. We obviously do not share the same first-order methodology. There are famous disagreements among originalists, living constitutionalists, and advocates of moral readings, as well as many others. But beneath the roiling surface of contestation and mutual recrimination, we mostly share a second-order approach to working out our first-order methodological (and, simultaneously, our first-order substantive) positions. This shared method involves a search for reflective equilibrium:1 just as we evaluate our methodological premises partly in light of the results that they yield, we simultaneously assess our intuitive judgments concerning the appropriate results in particular cases in light of our revisable methodological commitments. We have case-specific intuitions in part because we know that constitutional law is interconnected with substantive morality in a variety of complex ways.2 Yet most of us also believe that constitutional law has a partial autonomy, grounded in respect for prior controlling authorities and in methodological integrity in determining what prior authorities have established. In instances of initial conflict between judgments of desirable case-specific outcomes and previously adopted methodological stances, the Reflective Equilibrium Hypothesis that I advance in this Essay—which shares important commonalities with a thesis developed by Professor Mitchell Berman3—holds that adjustment can occur on either end.4

In advancing the Reflective Equilibrium Hypothesis that participants in normative constitutional discourse share a second-order methodology of pursuing reflective equilibrium between methodological principles and judgments involving desirable results in individual cases, my methodology is one of inference to the best, most charitable explanation of familiar processes of argument and decision-making. In so asserting, I use the term “best” in a partly normative sense that encompasses a version of the principle of interpretive charity.5 For reasons that I explain in Part III, rejection of the Reflective Equilibrium Hypothesis would leave no strongly plausible alternative to the Cynical Conclusion—as I call it—that much if not most methodological argumentation in constitutional law is a sham.

Many have embraced the Cynical Conclusion as an account of constitutional decision-making by the justices of the Supreme Court. As a frequent participant in constitutional arguments, however, I would say that I almost invariably attempt to argue in good faith and generally perceive my conversational partners as proceeding on the same basis—even though I have no doubt that ideology plays a large role in shaping the sometimes quite divergent conclusions that we reach.6 If others reason as I do, I would like to believe that we do so not because we are cynical manipulators, but because we experience new cases as prodding us to enrich our understandings of constitutional law and practice. In order to do so, the Reflective Equilibrium Hypothesis maintains, we think simultaneously about appropriate methodology and about normatively attractive results in individual cases.

The Reflective Equilibrium Hypothesis should provoke a revision in widely shared thinking about principled judicial decision-making. The proponents of competing interpretive methodologies typically cast their arguments in partly normative terms. After someone has chosen an interpretive methodology, however, most believe that rule-of-law principles forbid any deviation. My analysis suggests that commitments to interpretive methodologies are and ought to be revisable, but that, in order to be normatively defensible, revisions should be open and principled. We might think of the ideal that I elaborate and defend as one of arguing about the Constitution in good faith across the spans of time and experience.

  • 1. See John Rawls, A Theory of Justice 20–21, 48–53 (Belknap 1971).
  • 2. Professor Larry Alexander argues that the idea of “legal intuitions” makes sense, if at all, only “in cases where the original meaning is unclear.” Larry Alexander, Telepathic Law, 27 Const Commen 139, 143–45, 149 (2010). As I argue, however, even modestly well-informed observers can have legal intuitions that legal meaning is unclear, as well as intuitions concerning how legal indeterminacies should be resolved.
  • 3. See generally Mitchell N. Berman, Reflective Equilibrium and Constitutional Method: Lessons from John McCain and the Natural-Born Citizenship Clause, in Grant Huscroft and Bradley W. Miller, eds, The Challenge of Originalism: Theories of Constitutional Interpretation 246 (Cambridge 2011). There are significant differences as well as affinities. Whereas Berman develops his thesis largely as an argument against originalism, I explain why even originalists likely employ a reflective equilibrium methodology in developing the details of their theories. My hypothesis is also more developed than Berman’s. See id at 261 (acknowledging that he could not “advance the project very far”).
  • 4. The second-order theory that I advance in this Essay is consistent with, but does not depend on, the first-order theory advanced in my previous work. That theory makes a different use of the notion of reflective equilibrium. See generally Richard H. Fallon Jr, A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv L Rev 1189 (1987).  
  • 5. The principle of charity calls for interpretations of another’s words or texts that, in situations of possible doubt, “maximize the truth or rationality in the subject’s sayings.” Simon Blackburn, The Oxford Dictionary of Philosophy 59 (Oxford 2d ed 2005).
  • 6. For an illuminating exploration of the antithetical notion of arguing in bad faith, see generally David E. Pozen, Constitutional Bad Faith, 129 Harv L Rev 885 (2016).