Legal conservatism and legal formalism

David Neiwert has an interesting post about the crucial Dred Scott issue (you heard it here first!) The general thrust of his argument is correct: when you hear “strict constructionism” it means “jurisprudence that produces conservative policy results.” However, I do strongly disagree with a particular framing of the argument, which is common among some progressive students of the law: the claim that the conservative jurisprudence is represented by “legal formalism.” I think this claim is erroneous for two reasons:

• There’s nothing inherently conservative about “formalist jurisprudence”–which means applying legal texts with indifference about the consequences–just as there is nothing inherently progressive about pragmatism or legal realism. In a sense, it’s correct that formalism embodies “indifference to substantive justice.” However, conceptions of substantive justice can (of course) be reactionary as well as progressive. Formalism’s political content is entirely dependent on the legal text being interpreted. Hugo Black, one of the (few) great progressives in the history of the USSC, was about as formalist as a Supreme Court justice can be (which, admittedly, is “not very”), while Richard Posner and William Rehnquist (not to mention Roger Taney) are or were very pragmatic.

• More importantly, the evil decisions being discussed (Dred Scott, Lochner, Plessy, and I would add my personal choice, the Civil Rights Cases) are simply not remotely “formalist”. Consider the quote fromDred Scott that Neiwert adduces. In determining the citizenship status of African Americans, Taney barely discusses legal texts (as formalism requires he do exclusively); he rather examines historical materials and his conception of American political culture. He doesn’t cite any part of the U.S. Constitution that precludes African American citizenship, for the obvious reason that no such part of the Constitution exists. The same is true of the other cases. All of them are explicitly consequentialist and historicist, and Lochner in particular barely mentions the text of the Constitution.

The tendency of progressives to rail against “formalism” is shooting at the wrong target. The problem withDred Scott and Plessy isn’t their unwillingness to consider substantive conceptions of justice; the problem is that they explicitly relied on substantive conceptions of justice that are profoundly immoral. (And, of course, so does Scalia; calling him a “formalist” gives him too much credit. It would be difficult indeed to produce a formalist justification for, say, Bush v. Gore.) To imply that “separate but equal” or the gutting of the privileges or immunities clause or “liberty of contract” were compelled by the text of the Constitution but should be disdained because they led to bad results concedes far too much. Relatively formalist readings would have suggested more progressive results in all of these cases.
The lesson here, I think, is that discussion of “formalism” and (especially) “strict construction” in the context of constitutional interpretation is an argument that just collapses on itself. A “strict” reading of, say, the Ninth Amendment or the cruel and unusual punishment clause of the Eighth compels the liberal use of judicial discretion to apply the broad principle, which leads us in circles. There has never been a “strict constructionist” in the history of the United States Supreme Court, at least where constitutional interpretation is concerned. Everybody is a consequentialist to one degree or another. Which, of course, is a good thing, although it cannot prevent awful results. No legal theory can.