Pedro Felipe de Oliveira Santos
Brazilian Federal Court for the First Circuit
Working both in academia and the judiciary, I have been asked by students and colleagues whether I am an originalist, a textualist, a pragmatist, or a living constitutionalist judge. This question intrigues me. Why should I choose just one interpretative methodology? Across the world, constitutional scholars and judges have become partisan, as if accounts of constitutional interpretation were mutually exclusive. Each camp presents normative arguments relying on moral views about the nature of the constitution and the judicial role to assert how judges should correctly read constitutional norms. In this sense, selecting an interpretative theory implicates not only an evaluation of secondary resources to supply the meaning of constitutional norms, but also a decision between competing moral views of constitutionalism. This debate reveals three misconceptions about the nature of the judge’s function when interpreting the constitution. In this post, I briefly explain these three misconceptions in order to argue that a judge should not hold an interpretative account as a one-size-fits-all solution.
The first misconception emerges from a formalist analysis: constitutions generally do not impose interpretive rules. Unless a constitution chooses or excludes a specific account, no interpretative theory legally binds judges. Thus, no judge may claim that their preferred account necessarily always provides the correct answer for any interpretative question. Indeed, disagreements on constitutional interpretation generally operate on moral grounds, not on legal grounds. For instance, the main disagreement between originalists and living constitutionalists turns on the stability of constitutional meaning. However, neither originalism nor living constitutionalism may be characterised as unconstitutional by definition, since both views have roots in shared constitutional traditions. Thus, all interpretative theories, as ideational discourses, are somehow connected to – and find meaning in – the constitution. For this reason, there is no exclusive mechanism of resolving moral disagreements on constitutional grounds. On the contrary, constitutions often leave moral disagreements open while granting certain political institutions the authority to assert temporary, limited “final words” on morally contentious issues.
A second misconception concerns questions of legitimacy and discretion. Textualists and originalists argue that judges lack democratic legitimacy to change a previously asserted constitutional meaning. For this reason, they advocate that judicial discretion should be tightly constrained, requiring judges to interpret constitutional norms according to their plain meaning, in the first case, or the original public meaning at the time of ratification, in the second case. Other secondary sources should be dismissed.
Lack of democratic representativeness is a sound moral argument for imposing restrictions on adjudication and should be taken seriously. However, textualists’ and originalists’ claims enlarge the puzzle of mutual exclusivity instead of solving it. First, the normative argument that judges should not amend previously asserted meanings does not survive a formalist scrutiny, as constitutions do not usually limit judicial interpretation in such terms. In fact, constitutions empower judges to enforce rights, as well as to review legislation and administrative acts. Thus, regarding the separation of powers, while judges have no authority to create new legislation or to design policies, rights enforcement requires courts to evaluate a wide range of secondary sources, such as precedents, legal documents, expert testimonies, and more. In most cases, judges honestly attempt to preserve a previously asserted meaning, such as by applying precedents. Nonetheless, no constitution prevents judges from changing a previously asserted meaning, provided such change is justified on constitutional grounds. Therefore, the issue of judicial discretion collapses into a question of judicial power and does not support the claim of mutual exclusivity.
Second, in realist terms, interpretation is more than a mere transplant of signs between sources. It entails a feedback process underlying the attribution of specific content to material and immaterial objects. Interpretation is a construction rather than a search; it is an interactive task rather than a description. Change to a previously asserted meaning is the collateral effect of any process of interpretation. Even a textualist judge builds on previous content, invariably leading to a different outcome, no matter how honestly attempting to preserve a previous message. This fact falsifies the hypothesis that originalists and textualists perpetuate a fixed meaning over time. As a matter of fact, any interpretative task alters previously asserted meaning.
Third, turning to judicial discretion, there is no evidence that specific secondary sources reduce judicial discretion to a greater extent than others. In fact, having abstract categories of secondary sources such as plain meaning, original meaning, current contextual arrangements, or efficiency-based argument does impose some constraints on decision-making and reduce the number of alternative moral views available to interpreters. However, assuming that certain categories are more or less restrictive than others is false. Searching for evidence beyond a reasonable doubt to support an asserted original meaning may bring about as many controversies as pragmatists would face in reading cost-benefit analyses. In the same way, textualists may face polysemy as severe as living constitutionalists would find in describing contextual change. Indeed, it is the combination between secondary source categories and the interpretative issue at stake – and not the secondary source category alone – that defines the level of judicial discretion. It means interpretative theories determine the trajectory of the argument rather than the degree of judicial discretion.
The third misconception lies in asserting that interpretive accounts are inconsistent with each other, so that coherent judges must adhere to only one interpretive methodology. I perceive no such incoherence when a judge adopts different approaches in different cases, as long they justify in each case why the selected meaning better fits into the constitution.
The judicial task, as I see it, requires of a judge to adopt a feasible, honest sense of self-restraint: holding no moral pre-commitment about the nature and the role of constitutions other than two facts that are supported by empirical evidence. The first fact is that constitutions encompass a network of norms whose authority to constitute duties and rights and to distribute political power throughout society is widely accepted. The second fact is that constitutions endure because their underlying institutions not only remain stable for long periods, but also can adapt to contingent causal forces. Indeed, these facts allow us to conclude that: 1) an institution may play different roles in distinct contexts; and 2) institutional endurance – including constitutional endurance – depends on the interaction between self-enforcing mechanisms of both stability and change. On the one hand, stability mechanisms lower political tensions and bring about a focus on finding coordinated solutions to issues. This gives rise to common expectations about patterns of collective behavior, even when individual preferences differ. On the other hand, adaptation mechanisms respond to unforeseen situations that alter individual preferences and lower institutional ability to induce cooperation.
These factual premises have implications for adjudication. Distinct interpretative issues (particularly rights issues) may require distinct interpretive approaches if a judge is concerned with constitutional enforcement rather than with moral views on constitutional nature. Thus, when the constitution itself does not present a single answer for the interpretative issue under consideration, a self-restrained judge should avoid one-size-fits-all solutions. Loyal originalists, textualists, and living constitutionalist judges provide the worst examples of judicial activism. Strong judicial pre-commitment to preserving original meaning, to pushing institutions forward, or to increasing welfare impose on the decision-making processes personal perceptions of what roles judges desire the constitution to play. In addition to being an explicit bias, one-size-fits-all solutions reduce the ability to analyse and confront the competing moral arguments of the particular case under deliberation.
Judicial self-restraint requires interpretive openness. Instead of a previously settled game, constitutional interpretation should be a transparent case-by-case process of causal reasoning. Openness in interpretation requires judges to juxtapose and explore the wide range of legal interests, arguments, and moral views underlying the issue at stake, in order to justify in each case why that particular constitution requires that certain sources of meaning be privileged over others. I do not deny that biases may influence judicial decision-making. However, being able to reason through the range of interpretative accounts helps judges to perceive their own biases and to avoid acting upon those biases.
Unfortunately, judges stand alone in this task, as no sophisticated methodology has yet been developed to guide courts in deciding between interpretative accounts on a case by case basis. What principles or circumstances recommend either preservation or change in constitutional meaning? How should one evaluate secondary sources of interpretation? Academic polarization has impeded the debate from moving toward problem-solving for these concerns. In the end, we judges need interpretative instruments to navigate complexity, not to avoid it.
Pedro Felipe de Oliveira Santos is a Judge of the Brazilian Federal Court for the First Circuit and is reading for his DPhil in Law at the University of Oxford. He also holds an LLM from Harvard University.
Suggested citation: Pedro Felipe de Oliveira Santos, “What kind of judge are you?” IACL-IADC Blog (17 October 2019), https://blog-iacl-aidc.org/2019-posts/2019/10/17/what-kind-of-judge-are-you