Constitutional Law Address

Harvard University’s 359th Commencement Address

Vol. 124 No. 2 In this commencement address, Justice Souter outlines an approach to constitutional interpretation. The reasons that constitutional judging is not a mere combination of fair reading and simple facts, he states, extend beyond the recognition that constitutions must have a great deal of general language in order to be useful over long stretches of time. One such reason is that the Constitution contains values that may well exist in tension with each other, not in harmony. Yet another reason is that the facts that determine whether a constitutional provision applies may be very different from facts like a person’s age or the amount of the grocery bill; constitutional facts may require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them.
Constitutional Law Article

Trimming

Vol. 122 No. 4 In law and politics, some people are trimmers. They attend carefully to competing positions and attempt to steer between the poles. Trimming might be defended as a heuristic for what is right, as a means of reducing political conflict over especially controversial questions, or as a method of ensuring that people who hold competing positions are not humiliated, excluded, or hurt. There are two kinds of trimmers: compromisers, who follow a kind of “trimming heuristic” and thus conclude that the middle course is best; and preservers, who attempt to preserve what is most essential to competing reasonable positions, which they are willing to scrutinize and evaluate. It is true that in some cases, trimming leads to bad results in both politics and law, including bad interpretations of the Constitution. It is also true that trimmers face difficult questions about how to ascertain the relevant extremes and that trimmers can be manipulated by those who are in a position to characterize or to shift those extremes. Nonetheless, trimming is an honorable approach to some difficult questions in both law and politics, and in some domains, it is more attractive than the alternatives. In constitutional law, there are illuminating conflicts among those who believe in trimming, minimalism, rights fundamentalism, and democratic primacy.
Jurisprudence Article

Timing Rules and Legal Institutions

Vol. 121 No. 2 Constitutional and legislative restrictions on the timing of legislation and regulation are ubiquitous, but these “timing rules” have received little attention in the legal literature. Yet the timing of a law can be just as important as its content. The timing of a law determines whether its benefits are created sooner or later. This determines how the costs and benefits are spread across time, and hence how they are distributed to the advantage or disadvantage of different private groups, citizens, and governmental officials. We argue that timing rules are, and should be, used to reduce agency problems within the legislature and between the legislature and the public, and to mitigate deliberative pathologies.