The fifth and final type of argument under the Constitution is a policy argument. Policy arguments are fundamentally different from arguments based upon text, intent, precedent, or tradition. The four standard types of arguments are grounded in the past, while policy arguments look to the future.
Policy arguments have an inherently different structure than the other types of legal arguments. Every policy argument consists of two steps – a predictive statement and an evaluative judgment. First, you must predict what the consequences of interpreting the Constitution one way or another will be, and second, you must evaluate whether or not those consequences are or are not consistent with the underlying values and purposes that the Constitution serves.
Policy arguments based in law are inherently different from policy arguments based on politics in the following sense. A member of the legislature is free to select any goal whatsoever and to adopt any law that will tend to achieve that goal. A judge, on the other hand, must identify what the purposes of the law are in order to apply the law in a manner that is consistent with those purposes.
Policy arguments entered our law relatively slowly. At the end of the 19th Century and beginning of the 20th Century leading American judges such as Oliver Wendell Holmes, Louis Brandeis, Learned Hand, and Benjamin Nathan Cardozo led the way in a movement called "Legal Realism." In 1908 Louis Brandeis submitted a brief to the United States Supreme Court in support of a state law establishing minimum wages and maximum hours for women workers. The brief consisted of two pages of standard legal argumentation and over ninety pages of summaries of social science studies demonstrating the devestating effect of long hours and low pay on women and their families. This type of brief is now referred to as a "Brandeis brief," and it is embematic of the new method of legal analysis that entered our law at that time. In explanation of his style of legal argumentation, Brandeis wrote:
"In the past the courts have reached their conclusions largely deductively from preconceived notions and precedents. The method I have tried to employ in arguing cases before them has been inductive, reasoning from the facts."
Benjamin Cardozo rose through the ranks of the New York State courts and became famous for his many opinions that developed and modernized the principles of the common law of torts, contracts, and property. His opinions fill the casebooks and are part of the standard curriculum in American law schools. Typically Cardozo would apply precedent (previously decided cases) to new problems that were arising in contemporary society, and he did so by indentifying the reasons why a previous court had developed a particular rule of law. Very often judicial precedent in a field of law was based upon two or more competing or even conflicting policy objectives. After Cardozo had identified all of the relevant values and policies that the law was intended to serve, he would balance those values against each other in the context of the particular case. Through this weighing and balancing process Cardozo would draw a conclusion as to how a particular law should be interpreted and applied in the case before him. Cardozo said:
"The final cause of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence. … Logic and history and custom have their place. We will shape the law to conform to them when we may, but only within bounds. The end which the law serves will dominate them all."
In most cases text, intent, precedent, and tradition are consistent with each other and are sufficient to guide us to the correct answer as to what the law is. But there are situations where text, intent, precedent, and tradition are inadequate, by themselves, to answer difficult questions of law. This occurs in cases where there is a conflict among the different types of legal arguments, or where no single type of argument yields a clear answer because the situation before the court is unprecedented. This happens occasionally in every field of law – it happens frequently in constitutional law.
Why is this? Why is the interpretation of the Constitution so dependent upon policy arguments as opposed to other fields of law such as securities regulation or commercial transactions? A principal reason is that many of the most important provisions of the Constitution are not specific rules but rather are broad concepts. All Americans would agree that the Constitution was intended to protect our liberty, but we legitimately disagree about the specific meaning of the term "liberty" in any particular case. Certainly our understanding of "equality" has changed over time as we have gradually learned more and more about human potential. "Fairness" is also an evolving concept, as new and different procedures have to be adopted to ensure that hearings and trials are fundamentally fair and rational.
Nor is the intent of the framers always a reliable guide. To be sure, they were devoted to liberty and (after the Civil War) to equality, but it is not at all clear that in applying those concepts they wanted us to recreate the same society that they had. Rather, it seems more likely that they articulated these ideals as guides for us to strive for, to live up to, and to reinterpret and reapply to the challenges of every generation.
Liberty, for example, may be understood as a person's right to make decisions for himself or herself at least in matters that are intensely personal such as whom to love, whom to live with, whom to marry, whether to have children, how to raise those children, and whether to accept or refuse lifesaving medical treatment. In short, the right to privacy. Liberty also includes freedom of speech, freedom of the press, and freedom of religion, not because these are traditional rights, but because these principles protect the dignity of the individual and promote intellectual and spiritual development.
Equality may be phrased as the principle that the government may not treat a group of people differently from other groups unless the group is in fact different in the relevant context. If you accept this principle, then it is not sufficient to say (as Justice Scalia would) that certain groups may be treated differently from other groups simply because they have traditionally been treated differently or even (as Judge Bork would) because the framers treated them differently. In drafting and adopting the Equal Protection Clause the framers of the 14th Amendment did not expect us to hold onto the society that they had at that time – they expected us to live up to the ideal that their generation and the Revolutionary generation fought and died for – that all persons are created equal. They wanted us to stand upon their shoulders and to see a little further than they did.
There are five types of legal argument. Each type of argument is a legitimate form of legal reasoning. In hard cases the different types of arguments give you different answers. We see this very clearly in constitutional law, particularly in cases where groups or individuals are claiming rights they have been denied in the past, such as interracial couples or gay and lesbian couples who wish to marry.
We are all Americans and we are all devoted to the Constitution and to the principles of limited government and individual rights. We have different understandings of those concepts because there are legitimate methods of reasoning that yield different answers to the questions of liberty, equality, and fairness that constantly arise.
Wilson Huhn is a Professor of Constitutional Law at The University of Akron School of Law and the author of the book The Five Types of Legal Argument. This is the eighth and last in a series of essays describing why people disagree about the meaning of the Constitution. The next series of essays will cover the constitutional cases that the Supreme Court will be deciding during the coming year.
