Beard and Holmes on Constitutional Adjudication

Adrian Vermeule

doi:10.2139/ssrn.2375271

Abstract

What is the connection, if any, between the external perspective of the historian or political scientist and the internal perspective of lawyers and judges? That is the puzzle for constitutional law posed by Charles Beard’s classic, An Economic Interpretation of the Constitution of the United States (1913). Beard challenges us either to reconcile our external and internal perspectives on constitutionalism, or else conceivably to declare them irreconcilable.I begin by showing that standard approaches to constitutional adjudication – originalism and Dworkinian moralism – are resolutely internal and thus have little use for the external standpoint of Beardian scholarship. I then describe a strategy of reconciliation offered by Justice Holmes, one that connects external and internal perspectives by means of a nonideal theory of constitutional judging under political constraints. The theory holds that the rational judge chooses the course of action that, at lowest possible cost, adjusts constitutional law and policy to match “the actual equilibrium of force in the community – that is, conformity to the wishes of the dominant power[].” In this framework, Beardian scholarship offers external analysis of the shape and force of the political constraints that the Holmesian judge should take into account when making constitutional law. External Beardian scholarship helps to delineate the feasible political options or possibilities for constitutional law, a critical datum from the internal but nonideal perspective of the Holmesian judge.

Highlights

My title is somewhat misleading, because Beard said little about constitutional adjudication,[1] while Holmes thought little of Beard’s most famous book
That definition encompasses any work in political economy or positive political theory that attempts to explain the genesis of constitutional rules, unwritten constitutional conventions, and major quasi-constitutional statutes
Holmes offers a nonideal theory of judging under political constraints; the theory holds that the rational judge chooses the course of action that, at lowest possible cost, adjusts constitutional law and policy to match “the actual equilibrium of force in the community – that is, conformity to the wishes of the dominant power[].”8 In this framework, Beardian scholarship offers external analysis of the shape and force of the political constraints that the Holmesian judge should take into account when making constitutional law

Summary

Standard Theories

Let me begin by examining standard theories of constitutional adjudication, originalism and Dworkinism, to see whether they can make any use of Beardian scholarship.[10]. Dworkinians want an account of the Constitution that puts it in the best possible light, emphasizing justification in terms of political morality as well as fit with the legal materials; Beard’s debunking emphasis on the self-interested motives of the framers and their constituents is difficult to incorporate into a Dworkinian framework. Disreputable the motivations for the constitutional rules they wrote, their rhetoric was public-regarding, and the judge may take them at face value, holding them to their professed ideals (“the civilizing force of hypocrisy,”[19] enforced by judicial decree) To some degree, this is what originalists and Dworkinians do; when they quote the framers, it is invariably for some public-regarding justification of constitutional rules. If we do find the disconnect between external and internal perspectives puzzling; if we would like some sort of coherence between our best positive accounts of constitutional lawmaking, and our normative accounts of constitutional lawmaking; if we want some sort of relationship between a major stream of constitutional research in history and political science, on the one hand, and constitutional adjudication on the other; we need to consider the Holmesian approach to constitutional adjudication, to which I will turn

Holmesian Adjudication

The Least-Cost Principle

The Beardian Contribution