The Supreme Court’s recent opinion in Securities and Exchange Commission v. Jarkesy invalidated the SEC’s mechanism for adjudicating fraud claims seeking civil penalties on the ground that the adjudications violated the Seventh Amendment. To explain that conclusion, the Court invoked, among other sources…Baron de Montesquieu (who was quoted by Alexander Hamilton after all!) and William Blackstone. Debates about constitutional interpretation are often peppered with references to a few Enlightenment thinkers, such as Montesquieu, Blackstone, and John Locke. Indeed, even nonconstitutional interpretation debates are as well; in the Court’s recent decision overturning Chevron deference, Loper Bright Enterprises v. Raimondo, Justice Gorsuch worked in some references to Blackstone in his concurrence.
It’s this phenomenon (at least its constitutional variety) that Christopher Havasy, Joshua Macey, & Brian Richardson seek to inter in Against Political Theory in Constitutional Interpretation. The article first documents the prevalence of invoking thinkers such as Montesquieu, Locke, Blackstone, and Emmerich de Vattel in constitutional debates. The justifications for doing so are often a bit underspecified, but the authors focus on a particular type of Enlightenment-gesturing: the citation of “Enlightenment political theorists as authoritative guides to U.S. constitutional meaning,” or as having “probative value to discerning Founding-era constitutional meaning.” The framers and ratifiers cited and invoked these thinkers in constitutional debates, this argument goes. So if they thought Enlightenment political theory relevant to constitutional interpretation, then we should treat the Enlightenment political theory the Framers invoked as providing authoritative insight into their interpretations of the Constitution.
The authors show why that oh-so-simple rationale cannot justify the practices of the Enlightenment-gesturers. For one thing, as the authors explain, constitutional decisionmakers sometimes try to import wholesale the views of a theorist who was invoked for one idea or another by the drafters and ratifiers—even though the drafters and ratifiers may never have gestured toward other parts or components of the thinker’s theory. Moreover, they show, it would be virtually impossible to conclude that the Constitution adopted the views of all of these thinkers, since their views on political theory and the range of ideal government structures varied, and were sometimes at odds with one another. (As the article notes, Montesquieu “is sometimes thought to have embraced a strict separation of powers,” whereas Vattel “thought it possible for a branch to vest another with ‘full and absolute authority’ so long as the people acquiesced.”) But still, the authors have more. The Constitution, they explain, departs in important respects from the visions and theories of all the Enlightenment political theorists whose views are supposedly embodied in the Constitution.
This was an article that desperately needed to be written. And it is written in razor-sharp ways that methodically expose the many flaws with current interpretive practices that loosely invoke or gesture toward Enlightenment political thought that may or may not have some basis in constitutional law. It concludes with the arresting claim that “that Enlightenment political theory should…be treated no differently than any other text: it possesses no inherent authority apart from its capacity to persuade.” Indeed, the authors’ case against using Enlightenment political theory as probative evidence of the meaning of the Constitution is so persuasive it led me to wonder whether the interpretive practices they document reflect a different kind of practice—one in which decisionmakers sample from the Enlightenment political theory they find persuasive because it matches their own political theory and their own vision for ideal government.
Whatever we may think of the spectacle of judges acting as political theorists, the authors don’t insist that they can never cite or discuss the Founding-era Enlightenment theorists as theorists who might influence today’s interpreters. The Enlightenment writers and their ideas “can provide general background evidence” of the contemporary understanding of particular constitutional “concept[s] or term[s].” But it’s just evidence. And judges citing these thinkers should at least provide “specific evidence of the use of Enlightenment political thought” by “the victors of American constitutional politics at the Founding,” as well as “persuasive evidence of consensus about what the Framers took a specific theorist (or group of theorists) to be saying.” In all, judges should exercise “historical caution and interpretive humility” in invoking the Enlightenment theorists. Of course, all of this—both the provision of serious evidence and the demonstration of caution and humility—is vanishingly rare when Enlightenment-gesturers start throwing around Vattel and Montesquieu.
Despite the power of the arguments in the article, I suspect constitutional decisionmakers are not going to relent in their enthusiasm for loosely sampling inconsistent Enlightenment political theory that is, in important respects, inconsistent with the constitutional design it supposedly helps explain, while insisting that they are providing authoritative evidence of constitutional meaning. Nonetheless, it is clear that Havasy, Macey, and Richardson have the better of the argument. This hazy political theory has little place in constitutional decisionmaking.
