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Lawyers are problem solvers, and the specific job of constitutional lawyers is to solve problems that arise out of the basic political arrangements of the American political community, arrangements that include the written Constitution, the institutions of the federal government that the text authorizes and of the state governments that it presupposes, the community’s commitment to limit public action by constitutional prohibitions, and the mechanism of judicial review by which constitutional law controversies are usually resolved. The previous four chapters have said a great deal about the tools and perspectives constitutional lawyers use in articulating arguments that they hope will persuade readers that their proposed solution to a problem is the right one. With those tools and perspectives in mind, what we can say about how the readers are to decide which of two or more competing solutions is in fact the most persuasive one?
In order to solve a constitutional problem, the constitutional lawyer will always use the basic toolkit of arguments discussed in Chapter 3, and as we saw in Chapter 4, the lawyer must also consider the ways in which institutional perspective affects how questions are shaped and answers constructed. There are, furthermore, specific clauses in the written Constitution that merit special attention.
Americans refer to “the Constitution” easily and often. What exactly they mean is not so clear much of the time.
The term is, of course, short for “The Constitution of the United States of America,” which is the title of a document – really, a collection of documents, the original text and the amendments. In some sense, Americans always have the document in the back of their minds when they invoke its title. In ceremonial contexts, and when politicians want to belabor their opponents about the latter’s supposed perfidy, “the Constitution” brings up the image of the parchment document housed in the National Archives, with “We the People” in large flowing script at the beginning and George Washington’s signature leading the rest at the end; what the document actually says between heading and signatures is often immaterial.
Constitutional law’s twofold logic of inquiry into authorization and prohibition provides the basic structure for constitutional law reasoning. It also supplies the method by which constitutional lawyers break down into discrete, manageable questions the complex set of facts and legal claims that a difficult constitutional problem presents. Finally, as Chapter 2 discussed, this logic rests on several presuppositions that further shape the analysis of any constitutional problem. We can now begin to consider how to solve a problem once we have identified the questions of constitutional law it raises. The answer to a constitutional question that is at all perplexing, or controversial among competent lawyers, can seldom if ever be identified by simply pointing to the constitutional text. Questions that can be answered in that fashion (do Wyoming and California really elect the same number of senators?) do not give rise to serious constitutional law debate, however puzzling they may be from other perspectives.
Why should we play the game according to the rules? The central purpose of this book has been to describe the practice of constitutional law, not to justify or critique it. The focus has been entirely on what constitutional lawyers and judges actually do in attempting to solve constitutional law problems. I have simply assumed that what I am describing is what constitutional lawyers and judges ought to do. Most of the time, indeed, there is no need to go further. Lawyers are practical people with problems to solve and questions to answer, and as a practical matter lawyers with a constitutional problem that needs to be solved through law “ought” to engage in the practice I have described because if the lawyers don’t, whatever they say will not be recognizable as a legal argument.
Lawyers are problem solvers. The problem may already have occurred (the promised delivery of widgets never arrived) or lie in a future that someone wants to address (what shall we do if the widgets get lost in transit?). The goal in mind as the lawyer looks for a solution to the problem varies across areas of law and the differing roles lawyers play. Contract law facilitates social and economic cooperation and addresses breakdowns in agreements (someone is going to be out of pocket if those widgets never show up). In contrast, the systemic purposes of criminal law are punishment and deterrence (it’s socially useful to dissuade a would-be thief from stealing the widgets). Within limits the law creates, the criminal defendant’s attorney and the prosecutor have diametrically opposed goals, while the judge’s purpose is to ensure the lawfulness and, again within limits dictated by the law, the justice of the proceedings.
Constitutional law is a problem-solving activity. All problems in constitutional law, without exception, can be analyzed in terms of one or more questions, and all constitutional law questions, without exception, fall into one of two distinct categories: Does the Constitution authorize this governmental action? and does the Constitution prohibit this governmental action? This twofold logic of inquiry into authorization and prohibition guides the constitutional lawyer’s analysis of the problem in a constitutional controversy and provides the intellectual skeleton for constitutional law argument and decision. This chapter will first discuss how the logic of inquiry is used, and then will explain how the two questions are the product of the way the written Constitution is worded and of certain background presuppositions about its purposes.
Judicial review is central to the Constitution-in-practice, and in the American system of vertical precedent this necessarily gives the Supreme Court, because it is the final voice in the primary American process of articulating constitutional law, the most important role in solving constitutional problems. It does not follow, however, that all constitutional questions are to be answered by the Supreme Court or that all constitutional answers are the ones that a majority of the justices think are correct in the abstract. The practice of constitutional law involves a web of principles, doctrines, and practices that make the perspective from which one is addressing a question a significant factor, much of the time, in the reasoning the constitutional lawyer should employ.
Americans often think about constitutional law in terms of high-profile decisions by the Supreme Court – decisions that divide the justices by ideology, not law. This focus often leads to the erroneous conclusion that constitutional law arguments are, and can only be, political in substance. In The Practice of American Constitutional Law, H. Jefferson Powell demonstrates that there is a longstanding, shared practice of constructing and evaluating constitutional law claims that transcends current political disagreements. Powell describes how lawyers and judges identify constitutional problems by using a specifiable method of inquiry that enables them to agree on what the questions are, and thus what any plausible answer must address, even when disagreement over the most persuasive answers remains. Rather than being simply politics by other means, constitutional law is the successful practice of giving substance to the Constitution as supreme law.