So it’s my pleasure to welcome everyone to tonight’s constitutional conversation with my, I’m proud to say former student Aaron Tang. He was just recalling this classroom was not yet renovated then and didn’t look quite as nice when he was here. So Aaron has had an extremely distinguished career since leaving Stanford Law School. He first clerked for Judge J. Harvey Wilkinson on the Fourth Circuit, and then Sonia Sotomayor on the US Supreme Court. And for those of you who don’t know your judges and justices, that’s a particularly interesting combination because justice or Judge Wilkinson as a, very distinguished, Ronald Reagan appointee, longstanding giant and, but on the right side of the spectrum, and of course Sonia Sotomayor is of the opposite. And this is not irrelevant to Aaron’s future career because he is probably best known today. For being the host of a pb, an occasional PPBS program called called Bridging the Divide, breaking the Break, breaking Breaking the Deadlock in which he invites, or someone invites, I don’t know if he is the one who does it.
They invite important, public figures from both sides of the aisle to talk about some of the hardest, most contentious questions in American legal and public life. And so it is professor Tang’s great talent to be able to organize these conversations and display the possibility of being able to talk about some of the hardest questions in this, with with people of, deep disagreement. And so I recommend the program to everyone. Of course, it’s not all he’s famous for. He has also written several important books, including a book called let me see if I get this one or right. So Supreme Hubris and what to do about it. Which is a, you might say, not particularly complimentary book about the modern Supreme Court. And it’s hubris. He and Donald Trump basically have the same opinion of the US Supreme Court and, and he’s current, anyway, he’s currently working on a new set of essays, which will, I assume, be a book on constitutional theory, which he’s going to be sharing with this audience for the first time, called “Second-Order Constitutional Theory.” And I’ll let professor Tang tell you what that is. So anyway, please join me in welcoming our speaker, Professor Aaron Tang of University of California Davis Law School.

Thanks for inviting me to join you. Can everybody hear me now with the mic on? Okay. So if you’re sitting here on a lovely afternoon and your idea of fun is a talk on constitutional theory. You’re probably the kind of person who has already staked out a position on the most visible defining debate in constitutional law originalism versus its competitors.

In fact, if you’re really into that debate, you might be the kind of person who looks at the key players, the leading scholars in constitutional law, the judges and justices who decide the major cases that divide our country. You might look at those key players. In a certain kind of way. It’s almost as if they walk around with little bubbles over their head, right?

Oh, there goes Justice Gorsuch. Originalist. There goes Justice Thomas, Justice Barrett Originalist. Here comes Justice Sotomayor. Justice Kagan, non originalist. If you’re a law student, you might have seen some of these bubbles over the heads of your favorite professors, Professor McConnell. You can just make it out, one of the original originalists. Professor Smith here, not an originalist–although originalist question mark, maybe, it’s a little more complicated. Professor Karlan, not an originalist. Some people will walk around with bubbles that are even more descriptive than this, Stephen Sachs at Harvard Will Baude at Chicago, their bubbles are bigger, original law originalist. David Straus walks around Chicago university of Chicago Law School, common law constitutionalist. Ronald Dworkin famously had a bubble that read moral readings theorist. Most non-originalists are pluralists and so on.

Okay, here’s the thing. Close followers of constitutional law, even the educated public, have been so focused on what is inside this bubble originalism versus its competitors that we’ve lost sight of something crucial. All of us who want to hold a fully developed approach to constitutional adjudication, you, me, judges, Supreme Court justices, all of us must fill two bubbles, not just one.

And I’m gonna argue today that the choice of what theory we decide to put in this second bubble is every bit as important as the choice we make among originalism and its competitors in that first bubble. And if I succeed with you today beyond my wildest imaginations, I’ll convince you that it’s this second bubble, and in particular, the leading yet unspoken theory that today’s Supreme Court justices have chosen to fill that bubble with, that is actually as much to blame for the partisan ranker, the vitriol over the modern day Supreme Court, as all of the familiar arguments you’re aware of about originalism and its competitors. Okay, that’s where we’re headed.

To get there, I need to talk a little bit more about these two bubbles and how the theories that occupy them are different. And to do that, I’m gonna start with, start by borrowing from the field of decision theory. Okay. Decision theory. It’s a sophisticated body of literature that concerns itself with the process by which we human beings make decisions amidst uncertainty. In particular, I’m gonna draw on a distinction that is has been made famous by Professor Cass Sunstein and Edna Ullmann-Margalit, which is a distinction between first order decisions and second order decisions.
Okay? And I’ll explain that with a totally mundane everyday example. All right, so you’re sitting in your car, you’re waiting at the drive through line at In-N-Out Burger, and you order your usual right cheeseburger, french fries, and the lovely worker asks you, trying to be helpful, would you like a soda or a milkshake?

And your palms get sweaty. You break into, your heart rate rises. You’re like, Ugh, the hardest question. Soda or milkshake an In-N-Out burger, right? How are you going to decide? The main teaching from decision theory is that people go about decisions, like something as mundane as what drink to order in the drive-through line in a two step process.
Okay? The first order decision is the decision we try to make based on all of the factors that make one option better than the other, right? So for soda versus milkshake, that includes factors like taste, health, price, how thirsty you are. Okay. A lot of times they’re gonna be easy answers on first order decisions, right?

Maybe all the factors push you towards soda. Maybe you love milkshakes so much, doesn’t matter that they’re not as good for you. Maybe you’re one of those people who’s just gonna drink water. I don’t know why you’re at In-N-Out, but for some people the decision is easy, but sometimes for other people, the decision might be hard.

Maybe the factors are in equipoise or close to it, right? Decision theory teaches us that in these situations, people use a second order strategy. They make a second order decision, right? Unless you want the people in the line behind you to start honking, you’ve got to choose something. So what do you do?

Maybe you look to your partner sitting next to you and say, oh, what? What drink do I want? There’s more people in the car. You put it up for a vote. Maybe you just follow your gut instinct, right? Whatever feels like it’s a little bit better than the other one. Go with that. Maybe you flip a coin. But notice what is different about all of these strategies, these second order strategies, delegating to your partner, deferring to the views of everybody in the car following your gut instinct or random chance, right?

None of those strategies. Try to identify facts about your options. Facts like the taste or the price or the health that would make one choice better than the other. They are instead, strategies for how to make a choice when the evidence you have is already set and it’s hard. The choice is difficult, right?

This is why the decision theory literature calls these second order decision strategies. They’re not aimed at trying to get the right, better answer. They’re just helping you decide when the first order question is hard, okay? Turns out constitutional decision making is a little bit like the In-N-Out drive through.

The decisions that we all make as educated members of the public law students, scholars of constitutional law, judges, right? These decisions can also be thought of in this two step process. First, we identify all of the factors, all of the evidence, all of the arguments that are relevant to the first order question of how to get a constitutional question, right?

So most originalists will say, all right, my first order decision should be based on the original meaning of the text. Pluralists will say, sure, original meaning history, text. That’s relevant, but there are other things that matter too. Precedent, structure, consequences, common law, constitutionalists, moral readings, theorists, they’ll focus on slightly different first order bodies of evidence.

So let’s call all of these theories, first order theories of constitutional law. They’re aimed at the first goal, the first task of constitutional adjudication, getting the right constitutional interpretation and all that distinguishes the different first order theories is what kind of evidence, what kind of arguments they care about when making that choice.
And that’s what goes in that first bubble. So when Justice Gorsuch walks around as chambers in DC with a giant originalist bubble it means that when he approaches a constitutional dispute, that’s the evidence he’s gonna care about in trying to get to the right answer, original meaning.

And that’s more or less it. But here’s the thing, no sane proponent of any first order theory takes the view that their preferred first order theory is always going to be enough to give a clear answer in every single constitutional case. That’s important. So I’ll try to say it again in a different way.

Every single first order theory that people might have will encounter some cases where the relevant evidence is not a hundred percent. Knock down, wipe out in one direction, not even close to it, right? Originalists agree that in some cases the original public meaning will under determine the outcome of a case.

Multiple outcomes. Multiple interpretations are consistent with the historical evidence. Even John McGinnis, Michael Rappaport, the advocates of the most determinate form of originalism, original-methods originalism, agree that sometimes right original meanings are gonna be vague or ambiguous.

Constitutional pluralists, which is to say most non originalists, have it even tougher, right? If you think there are some cases when the original meaning is going to be vague or in conflict right now, multiply that problem by five or seven, or however many different modes of argument you think are permissible in your approach to first order constitutional decision.

So even if the original meaning is clear in a case, it might conflict with precedent or structure or consequences might be intention or the consequences might, there might be good arguments on both sides, right? The pluralist method is a recipe for muddled hard cases. So what this means is that no matter what first order theory you subscribe to, there will be some cases where you sophisticated legal decision maker are gonna be unable to reach a clear answer based on whatever theory you’ve chosen to occu, occupy your first bubble.

And by the way I want to say that this ability to recognize a hard case, that’s a sign of intellectual honesty. In my view, it’s a sign of strength. It’s not a sign of weakness. That’s especially true if you think a case is hard, even though you have a strong personal preference for one outcome over the other.

In my own life, I can tell you that some of the hardest choices I’ve ever had to make as a lawyer involve recommendations to judges I clerked for when I was basically 50 -0 about the question. One time, and Professor Smith, who’s here can testify to this, I was so confounded by a case at the Supreme Court. I had written a bench memo to Justice Sotomayor recommending one outcome. And then the night before she was gonna read the memo, I pulled an all-nighter and wrote another 40 page bench memo recommending the opposite outcome, snuck in and switched the memos. I don’t know if I got it right or not. I was delirious.

Sometimes cases are just hard. Sometimes, right? There’s a reason why in the big cases that make it to the Supreme Court, a bunch of federal judges have disagreed about the outcome, right? If you’ve ever read the dueling briefs in a major Supreme Court case, the majority in dissenting opinions and thought to yourself, Ooh, both sides have pretty good arguments, right?

You get the point, and this is true no matter what first order theory you subscribe to, some cases are just going to be very difficult. And that is why second order theories are essential, right? A judge can’t just throw up their hands and say, oh, I guess I’m not gonna decide this hard case. Right?

They have to issue a decision, and that means whether they like it or not, they’re going to need some method, some approach for helping them to decide what to do When they are uncertain about this first order question based on whatever their preferred first order theory is, it means they’re gonna have to choose a theory and they’re gonna have to put it into this second bubble.

Okay, so maybe you’re on board so far. Maybe you agree that sometimes your preferred first order theory, whatever it is, is gonna be inconclusive in a close case. You need another theory for what to do then. What are my options for this second bubble? I’ll start with the second order theory that today’s Supreme Court uses, at least most of the time.
This is admittedly unspoken in the sense that justices have not publicly declared that this is their preferred second order theory. At least in that many words. I think based on the tea leaves they’ve left my sense for how the justices go about deciding tough cases, that it’s accurate. So what is this unspoken approach?

Let’s call it the 51-49 rule. So Justice Gorsuch, Justice Thomas, right? They have a big first bubble that says originalist. They have a second bubble that says 51o-49. All right. Same thing for Justice Kagan. Justice Sotomayor. Their first order bubble is different, pluralist non-originalist. That second bubble, if you see ’em walking around, also says 51-49 rulers.

Alright, what is the 51-49 rule? Kinda like it sounds, whenever you have a close constitutional question, strong evidence, good arguments on both sides, go with whatever side you think has 51% or more of the body of evidence that is relevant under your preferred first order theory.

Now actually, the 51-49 rule is a little bit of a misnomer. Some cases, sometimes there are three or four plausible constitutional interpretations, under a person’s preferred first order theory. So take a case like Trump v. United States, the case that recognized presidential immunity from criminal prosecution. In that case, there were at least four plausible interpretations of the Constitution that were advanced in briefs considered adopted by different judges. All four had some decent evidence to support them on a pluralist account. So in a case like that, actually the 51-49 rule doesn’t require 51% of the evidence for an interpretation to become Constitutional law. It just needs a little bit more than everything else. Plurality of the evidence. 30% might be enough if none of the other interpretations have more. And that’s true even though 70% of the evidence might suggest that interpretation is wrong.

Okay. 51-49 rule. Maybe that sounds right to you, right? Maybe you are like, yeah, of course. 51-49 rule. What else would I do?

Would it really be better for a judge to prefer a constitutional interpretation that has less evidence to support it? There is something to be said about the 51-49 rule. It tries to maximize the odds that a judge will get a case, right? And there is, I wanna say there is something to be said about that.

But it is also surely true that our judicial system does not always try to maximize the odds that we’re gonna get cases right. We’re not always trying to maximize outcomes, right? Outcomes. Sometimes we prioritize other values. Sometimes we’re even, okay, getting more cases wrong as a result. In a criminal case we don’t put people in jail if the evidence is 51% or 60% or even 70% in favor that they’re guilty.

We instruct jurors right, that they should vote not guilty in that situation ’cause we have a value that getting cases right is less important than other values. Individual liberty, due process. Same thing with the death penalty, right? We’re not gonna have the state execute someone without proof, beyond a reasonable doubt that the jury thinks that’s the proper sentence.

Maybe that’s because a mistaken choice is irrevocable, right? It’s a harm that can’t be undone. We require more than 51% of the evidence. Even in some civil disputes, like parental termination proceedings we’re not gonna take away a parent’s rights custody over a child based on a bare 51% of the evidence.

Other values kick in. We say no. We need more proof, clear and convincing evidence. What all those examples illustrate is that sometimes our legal system has good reasons to reject the 51-49 rule as its second order theory for deciding certain kinds of hard questions, and more specifically, we reject the 51-49 rule when the questions we’re trying to answer have very high stakes, and that those stakes can sometimes be asymmetric in nature.

So that means we’re okay. We can be okay with the 51-49 rule in maybe ordinary contracts, disputes, similar stakes, not asymmetric, maybe not super high. You are, when I’m in the line at In-N-Out, 51-49 rule, go with my gut instinct. Totally fine. Nobody cares. Low stakes. But if the state’s gonna execute somebody we’re, there’s no turning back. The state’s gonna terminate parental rights. That’s also gonna have huge consequences that are hard to undo. These are times when the legal system throws the 51-49 rule out the window because we think getting the case right is less important than some other value. Okay, so back to you. You’re thinking, how do I know if I want the 51-49 rule in my second order bubble or something else?

Ask yourself the question. Do you think in major constitutional cases there are high stakes? Do you think those stakes might sometimes be asymmetric? If so you might prefer a different second order theory. And it turns out that so too has the Supreme Court from time to time, not anymore, but at different points in time.

The court has not reflexively ruled in favor of whatever legal interpretation it thinks has 51% of the evidence. For example, it was fashionable during the New Deal settlement, for the court to say in close constitutional cases that even if there are very strong arguments for striking down a law, we’re not gonna do that under a presumption of constitutionality, right? Basically a rule of deferring to the elected legislature, right? This is a second order theory, a second order approach that’s grounded in a value, an idea that anytime the court strikes down a law, high stakes and asymmetry. If we strike down the law, that means unelected judges are going to take a question outta the hands of the people, their elected representatives, whereas if they uphold the law the people continued to have that power. So legislative deference is our first major competitor for the second order bubble, perhaps the major competitor. And I think, in fact, if you look closely, he can correct me if he, if it’s more nuanced in this, you can just see over Professor McConnell here. The second order bubble says, deference to legislatures. So Professor McConnell may have the same first order bubble as somebody like Justice Thomas or Justice Gorsuch, both original public, meaning originalists, but whereas Gorsuch and Thomas are 51-49 rulers in that second bubble professor McConnell has legislative deference, an adherent.

It’s a big bubble. Maybe something like the Ian after James Bradley Thayer the most famous law professor to propound this theory of deference to legislatures. But there are other second order theories, other second order candidates. The Supreme Court has sometimes explicitly relied on that are grounded in other visions of what might be asymmetric about big Supreme Court decisions.

So political process theory could be understood as a modified version of legislative deference, right? Most cases political process theory says legislative deference. Unless evidence is overwhelmingly clear, Ely said if the text has to be clear, the constitutional command has to be clear. Absent that right, defer to democratically elected decisions, legislative deference.

But to Ely, he sometimes we are, we’re gonna flip the second order rule. Sometimes the democratic process might be malfunctioning. In that case, we don’t rule for the government in a closed case. We flip it, we rule against the government in close cases if laws are enacted out, out of prejudice or block access to the political process or consider this is my own favorite second order theory that the court has sometimes used.

The court has sometimes said in close cases, gosh, this is hard. There are good arguments on both sides. High stakes on both sides. But notice if we get it wrong in one direction, we make a mistake, we impose some harm on the losing side, that losing side’s gonna have a bunch of options for how to fix that harm.

Avoid the harm, it won’t be so bad. But if we get it wrong in this other direction, out of luck, the losing side, there’s nothing they can do to redress that error. So an example a terrific case like Cruzan v. Missouri Director of Health. If you remember from Con Law I, the Supreme Court says, or Con Law II, I guess here Nancy Cruzan, right, she’s on life support, persistent vegetative state. The parents want to remove her life sustaining treatment and they have a little bit of evidence that’s her dying wishes. And the Missouri Supreme Court says, no, you need clear and convincing evidence. The Supreme Court considers that and says this is really hard. We don’t know if the due process clause takes a position on this. We can see arguments in both directions, but notice the asymmetry. If we rule against the Cruzan and parents and we leave Nancy on life support and we get it wrong, that’s a harm. She’s on life support. She doesn’t want to be, but there are ways to correct that error. The Cruzan parents can go out and find more evidence of her end of life wishes states can pass new laws, allowing living wills to avoid this problem in the future. Both of those things happen, by the way, if we rule the other way, if we rule in favor the Cruzans and we get it wrong. Can’t put that genie back in the bottle, right? A woman will be dead against her wishes, and there’s nothing anybody can do to bring her back to life. And so the court wisely in Cruzan rules against the parents, not because it thinks that’s what the Constitution requires, but because of a second order conclusion that the Cruzan family had better options for avoiding its harm.

Okay, so just zoom me out. Here’s what we’re left with. To have a fully developed theory of judicial decision making, and I recommend we all have one. It’s great. A person must fill two bubbles, not just one. The public. The field has focus on this first bubble, and you’re familiar with the upshot of that focus.

It’s a picture of constitutional law. It’s a picture of Supreme Court decision making that is hopelessly divided because originalists and non originalists will forever be at odds. But once we focus on this second order bubble, I wanna suggest that some surprising possibilities emerge. If you pick something other than the 51-49 rule, maybe legislative deference, maybe harm avoidance, may probably not process theory actually.

But if we pick a different theory, there’s the chance of overlapping conse, consensus between people who disagree about how to interpret the constitution. So I’ll give a couple illustrations. First one in the conservative direction, and then another in the liberal direction. All right, first case does the eighth Amendment forbid states to impose a sentence of life without the possibility parole for a juvenile offender who’s been convicted of something less than murder.
So in 2010, the Supreme Court held in a case called Graham v. Florida, by a five-justice Majority, the four Liberals and Justice Kennedy, that the answer is yes. The Eighth Amendment forbids these juvenile LWOP sentences. The court then extended that rule to all crimes in Miller v. Alabama, and the court did so over a visceral dissent from four conservative justices.

If you know this case, you know that this is like a poster child for the longstanding battle between living constitutionalism and originalism. The Justices and the Living Constitutionalist majority said, how do we know what the Eighth Amendment means? It incorporates evolving standards of decency, right?

And we conclude that those evolving standards mean juvenile LWOP sentences are unconstitutional, and the justices in the center are like no. The Eighth Amendment enshrines, whatever punishment, practices. And we have to look at the sentencing practices at the founding. And this kind of sentence would’ve absolutely been permissible.

Okay, so first order of disagreement is definitely doing some work. I wanna suggest though, that what’s doing just as much work, what the conservative justices in descent really should have been upset about was the majority’s use of the 51-49 rule. The living constitutionalist added to their pluralist first order rule, 51-49 in that second bubble.
Why was this problematic? Any fair-minded non originalist, looking at the evidence of evolving standards of decency to decide what the Eighth Amendment means as a first order matter would’ve had to confront a very uncomfortable evidentiary fact. Even in 2010, three dozen states allowed juvenile LWOP offenders to be sentenced to that juvenile offenders to be sentenced to LWOP.

There were 124 offenders then in prison, serving those exact sentences. So even on its first order terms there was hardly an airtight case that evolving standards of decency forbade the juvenile LWOP sentences. So how was the majority able to casually waive aside this inconvenient evolving standards evidence? Because it had a second order commitment to the 51-49 rule.

The majority didn’t need a hundred percent of the evidence to strike down this sentencing practice. Didn’t even need clear and convincing evidence. All the five justices had to do was look themselves in the mirror and say, ah, we just need to be able to say 51% of the evidence supports our conclusion about what evolving standards of decency are.
The trend line is in our direction. We don’t like this practice. Voila, 51% of the evidence concludes the Eighth Amendment no longer permits these sentences, and the result is take this question out of the democratic process. But what if the justices in the majority had embraced something other than the 51 49 rule?

Let’s use legislative deference. Once they admit, as I think they would have to, that the evidence around the evolving standards of decency was close. Their second order commitment to defer to democratic lawmaker, democratically, elected lawmakers would kick. And they’d have to allow the LWOP sentences, which means they would reach overlapping consensus with conservative justices, even though both groups disagreed vehemently about how we even interpret the question in the first place.

Okay, so that’s a example in the conservative direction. The same thing can happen in the other direction. Take a case like Heller, the Second Amendment case, as an example, that is also pitched as a paradigm example of what happens when some justices are originalist, other justices are not originalist. In truth, I think it’s an example of what happens when all justices are 51-49 rulers in this second bubble, and that’s because I think a fair-minded person who looks at the historical evidence and asks, does the Second Amendment enshrine an individual right to bear arms for self-defense purposes, or instead, a collective militia, we have to agree that’s a really hard question. If you read the majority and dissenting opinions and all of the historical evidence assembled on both sides, if you look at the Corpus linguistics evidence it’s hard to conclude anything other than there’s good arguments in both directions.

But the justices in the majority, however, were able to say to themselves, no problem. That’s okay. We don’t need a lot of evidence. We don’t need overwhelming evidence, clear and convincing evidence to support our individual right? Reading. All we need is to be able to say 51%, that’s enough. And by golly, I think we’re close enough.

And the result is now there’s an individual right to bear arms for self defense. And by the way, the Court is now stacking 51-49 conclusions on top of each other. If you follow the oral argument yesterday in the case about Hawaii’s gun safety law. There’s a 51-49 or something like that, historical record, in that case, if you add that to the 51-49 evidence in Heller we’re expanding the right to bear arms. The public thinks it’s an example of originalism running wild. I actually don’t think that originalism is totally plausible. It’s an example of the 51-49 rule, unleashing whatever your first order theory is.

Because notice what would happen if the conservatives in the majority in Heller and these other cases employed legislative deference instead of 51-49. They would see, I think that the me, the original meaning evidence is close and then they would fall back on this second order commitment to defer to democratically enacted laws.

Again, overlapping consensus this time in a liberal direction in spite of the fact that the conservative and the liberal justices disagree about how to even interpret the constitution. Okay. Last thing I’ll say. When you consider these examples, when you consider other big cases like them, I wanna suggest this possibility that maybe it is the 51-49 rule that is largely responsible for the anger and the division over today’s Supreme Court at as much as the debate over originalism and living constitutionalism.

That’s because in all of these cases, what the 51-49 rule really does is it acts as a force multiplier for the single greatest threat to judicial decision making on all sides. Partisan, motivated reasoning, right? When all you have to do to rule in favor of a position in a close case is convince yourself that, yeah, there’s 51% of the evidence on that side.
It’s no surprise if your judicial decision happens to fall in line with your personal policy preference. The pool of motivated reasoning is so strong, so magnetic, and we’re all just humans, both liberals and conservatives. To paraphrase the Late Justice Scalia the judge who subscribes to the 51-49 rule goes home, tells their spouse what a great day they had at work.

’cause over and over again by a bare preponderance of the evidence, it turned out the Constitution meant exactly what they wanted it to. What we need in a second order theory. If everyday Americans are going to have faith that justices are doing law rather than raw politics is a theory that reigns in motivated reasoning in the hard cases that divide us.
Alright? That’s the opposite of what the 51-49 rule does. I think legislative deference would do the trick. I think harm avoidance could too. Alright, I’ll wrap up by leaving you with a quote and a challenge. Here’s the quote Walt Whitman once wrote famously, I contain multitudes. Folks, when it comes to constitutional theory, so do you, so do all of us.
You’ve got to fill your first bubble, right? You know that already. You have to choose whether to be an originalist, a plural list, moral readings, theorist, something else. But you contain multitudes. You have a second bubble. You’ve gotta fill that too. You can be, you can choose to be a 51-49 ruler or a the ian or a harm avoider political process theorist.
If you’re brave, if you’re brave enough to reject the 51-49 rule that is dominant in today’s legal culture. If you’re brave enough to choose a different second order legal theory, you may find yourself able to discover common ground in some cases with people who hold radically different views from you on how to decide what our constitution means in the first place, and that now more than ever, I think might be just what our democracy needs.
I’ll stop and take questions.

On either aisle and really talk into the microphone, so we cannot hear you.

Thank you. Oh. That’s gonna be the hardest question, Professor Smith. No, that’s really fascinating. Thank you Professor Tang. Couple questions. So at one point you said that. You’re skeptical that political process theory or you implied as an aside that political process theory as a second order theory could result in the same kind of consensus as some of the other second order options.

And I was curious if you could expound on that. But my other question is leaning more into that. We all contain multitudes. And that is to say. Isn’t it the case that every judge sometimes uses originalism? And isn’t it the case that every judge sometimes uses precedent or common law constitutionalism that there’s pluralism already.
And isn’t it the case that if, even if people thought that second order, constitutionalism was important that sometimes like stare Decisis was one of your, in the paper was one of your second order theories, that sometimes it’s gonna be stare decisis and sometimes it’s gonna be John Hart Ely and that there’s still this moment in which someone is gonna make a decision in the gray.

And in that space, is it always partisanship that’s doing the work or is it something else a different ordering of constitutional values that looks like partisanship, where for some it may be democracy anti subordination representative government. And for others it might be different versions of federalism or separation of powers.

And for others it might be due process. And that the ranking of those, it’s what’s actually doing the work in the gray area. Even which results in something that looks like partisanship because of the way that those constitutional principles and the ordering of those constitutional principles happens to line up with with partisan preferences.
Thank you. So why first, why am I skeptical about political process theory? I’m skeptical because all of the work in process theory depends on whether you can flip the default rule, flip the rule from deferring to the legislature to striking it down. And Ely, like most good liberals at the time, had a particular view, right?

He was most concerned with prejudice based on race prejudice against discreet and insular minorities, right? But there’s no obvious reason why Ely’s view of who’s been the victim of prejudice is correct. There are many Americans today who believe that the main victim of prejudice is, for instance, christians certainly Justice Alito has suggested that this is possibly true. And who am I to tell him that he’s wrong? Maybe I disagree with him. But if a political process theorist could take that view, what we’re, and we’re gonna, what we will end up with is different view versions of process theory leading to the same outcomes that are identifiable based on partisanship.

Aren’t we all first order pluralist? This is your second question, right? Don’t we all sometimes use original meaning and precedent? And when justices are coming out differently isn’t it just the case that they’re stacking their values in different ways? I think that’s totally right, and I actually think I owe an apology or clarification.

I don’t want to let off that every single Supreme Court justice and every major constitutional case is just reverting to partisan bias. I don’t think that’s true at all. Some justices may be more inclined than others in some cases, but in many cases we have seen instances of justices reaching outcomes that are different from their professed political views.
I do think that when it gets to the really big cases, handful of cases that are delivered at the end of June every year, those are cases where the tug of modus of motivated partisan motivated reasoning is so strong that the stacking of values in different ways looks awfully suspicious.

It might be cover for maybe even subconsciously motivated par partisan motivated reasoning. But you’re absolutely right and I consider that a an accurate amendment to say. A lot of times judges are acting in good faith. Cases are hard, they’re weighing values differently, and that’s what attributes to certain decisions.

Thanks. Hi, Professor. My name’s Harrison. I’m a 3L here at Stanford. Thanks so much for coming here today. My main question is, I guess what happens when the evidence on the second order theory is mixed? So you can imagine a case where, for instance, both claimed both parties have a good claim to irreversible harm, or both parties have a good claim to what the legislature’s true intent is.

Do we just end back at square one? And if so, is hard cases really what we should be anchoring around? Ah, it’s a lovely question. So Adam Samsha from has written about lexical ordering. When we’re deciding cases, how do we know which? Mode of argument to apply first, which to apply second.

And he says, and I think this is right, a major advantage of a decision making theory and what I would call a second order decision making theory is one that is easy. There actually is no such thing as a hard case, right? So I think legislative deference is a good example. There’s no dispute, there’s no good argument as to which side, on the side which the petitioner or the respondent is the government.

We can all agree on that, right? So there’s no case that’s plausibly hard there. There is, you’re absolutely right on my preferred harm avoidance theory, there are plenty of cases where it’s not clear which side would have easier options for avoiding its harm. That’s why for me I would have a third order theory, messy. But in those cases I’d fall back on legislative deference. ‘Cause that one at least is a clear decision rule. Does that answer the question? Yeah. Great. Thanks. Hi, my name is Stephanie. I’m a two L here. I really, I am compelled by the idea. I want to believe it, but I’m struggling on two fronts that I’d love reactions to.

The first is that this is compelling in the way that I found rank choice voting compelling, my city moved to rank choice voting. I think the evidence is mixed, that it has come out the way we thought and what has happened. Is that there end up being sort of coalitions formed against one candidate and it just doesn’t quite have the moderating or we can all get together behind this influence in the way that I expected.

Instead the strength of the opposition to candidate A is going to suddenly lead to coalitions between other candidates and people’s second choice. Is maybe less, I don’t mean to say less honest, but less consistent. It’s it’s played out in weird ways. That was a convoluted question, but, evidence feels out for me. And I’m wondering if there are parallels that make you more convinced that it can really build consensus. The second question is, I wonder how you think about the fact that people don’t sign on just to outcomes, but to opinions that have reasoning laid out that has impacts down the future.

How that changes this theory that you’re not just working independently through processes, but you are signing onto a decision with reasoning. Huh, thanks. Okay, great. Okay, so on the first one it’s totally fair. I think I would be guilty of quite a bit of overconfidence. If I were to tell you that I know for a fact that if we would all just switch our second order commitment to deference that the world would be a better place.

We’d all join hands, Gorsuch and Ketanji Brown Jackson would just be like best friends immediately. I can’t prove that. All I can suggest are tea leaves prior historic examples that or other examples that suggest the possibility. So I’ll point to Felix Frankfurter during the New Deal settlement.

He was as ardent a Thayer and legislative deference adherent as any. And it led him to cast a lot of votes that he was uncomfortable with for personal political reasons, right? It was a, it’s a sign that was actually disciplining for him. J Harvey Wilkinson, for whom I clerked.

Another ardent proponent of deference to the point, and this is remarkable for Reagan appointee trying to get on the Supreme Court and maybe he was being too principled and that’s why he didn’t. To write a law review article saying that he thinks Heller was wrong for the same reason he thinks Roe was wrong, right?

To stand up as a conservative and say there ought not to be a Second Amendment right. To bear arms, that’s a sign that he actually had put, he believed in deference, he believes in it, and it really disciplined him in some hard cases against his partisan views. There’s a virtuous cycle that happens, right when you see somebody on the other team.

Reach a conclusion that they don’t like personally based on deference. It makes it more likely that you’re willing to do the same. That’s the hope. The last thing I’ll say about that is even if the outcomes that I’m hoping for don’t happen, there’s something to be said about the process of judicial decision making when you pick up a Supreme Court opinion.
Now, boy, are they confident? Boy are maj is the majority Sure it’s got it right. It reminds me of the justice Lewis Brandeis quote. He said, the problem with this place is even if you’re only 55% confident in a proposition, you have to act like you’re a hundred percent sure. I think that diminishes all of us, right?

When the losing side in a constitutional case was dead wrong, had absolutely no chance of being entitled to constitutional status. Boy are. Why are we surprised when that side is furious and asai? The Supreme Court is being illegitimate. If you write an opinion that says this is a really close case, I think one side’s got a little bit more evidence than the other.

I’ve got this commitment in these cases to defer to the legislature and that’s why they win. But good job. You guys are close, right? Maybe it’s a little bit different. The process of decision making itself may be conducive to collaboration. The process of signing onto multiple decisions. This is a tricky thing.

I think what I want to do is hold the question because I see other people and I wanna give a chance and maybe chat about with you a little bit later. But it’s a great question. Yeah. I don’t know who was next. Okay. Thank you Professor Tang. I have two two brief questions. The I’ll the unilateral unilaterally disarming issue of, of your theory of implementing it. Because like you said, if you adopt a second order theory and the other side doesn’t, or the people that disagree with you don’t, they will probably win more than you do. Obviously that might not be a principled objection, but that’s probably something that’s in the mind of judges.

And then the second one is. How would Jamal Green anti rights absolutism fit in with, I think one of the last things you said there. ’cause I think like part of that part of his argument for going against a rights absolutist and a balancing framework is to try to mollify folks who lose.

Certain these complex rights questions. If that’s outside the scope though. No, it’s a great, it’s totally within the scope. Okay. So unilateral, disarming part of me wants to say we should do the right thing without regard, but although you and I had a conversation before this talk that, it’s hard to answer questions without imagining my 7-year-old being here. And I have to say to you what I would say in front of my 7-year-old and what I would say in front of my 7-year-old is, do the right thing. If it, that means you’re the first person to stop punching your brother do the right thing.
So that’s part of what I wanna say. But the other part, if you want to be like nakedly strategic about it, one side is losing already. So it’s not like the liberal justices right now being 51-49 rulers writing, scathing, dissenting. We’ve got it a hundred percent right. Under pluralism is getting them anywhere.

It could be, and I think Justice Kagan has started to do this, start writing more in this register of weaving questions to the Democratic majority, although she’s not doing it consistently by any means. There is something to be said about. That Jamal Green for those who don’t know, Jamal Green is a professor, constitutional law scholar at Columbia.

He’s written a book that basically advocates for proportionality review in the United States and approach to constitutional decision making that would have judges balance trade off way. Rights against each other. I think this is probably a recipe like pluralism itself, a recipe for motivated, partisan, motivated reasoning.

If you ask a conservative to balance two conflicting values and a liberal to balance two conflicting values, maybe for good faith reasons, they’ll say, my values here is just more than this, but it’s gonna align up with what they also want the outcome to be. So I’m not sure. That proportionality review is a good answer to a lot of the problems that we have here, even if it is attractive as an academic matter.

Yeah. Thank you for this. Two questions that are related and you started to preempt them. One, I’m curious, what is a close case on first order theory? How do you actually pin that down to something more than a, an accounting of the number of pieces of evidence? Closely related to that, how does 59 51 49 work for theories other than stylized originalism where you can point to some number of facts on one side and some number of facts on the other?

So what’s a close case? Oh, lovely. I wish I could tell you that there’s just some empirical truth that I have discovered that exists in the world that tells you how to know what a hard case is. This, that’s not reality. What counts as a close case is just a function of the judge’s own judgment. Every judge is going to have different personality traits, characteristics, they’ll differ on dimensions like humility, confidence, right?

And so some judges are gonna find. Some cases to be close when others might not. This is not a problem unique to constitutional law, right? Like even in like contract law, right? Before we admit certain kinds of extrinsic evidence, a case has to be hard or close. Right? So it’s a very common feature. What it means in practical terms, I think if you want, if you’re a quant person, is every judge, when they figure out what their first order theory and they’re sitting down to say, what’s my second order theory?

They have to identify a burden of proof. A burden of proof threshold that they’re comfortable with saying if the evidence is more than X percent based on whatever my first order theory is, I’m going to rule that way. And if it’s not X percent I’ll do something else. Maybe I’ll defer to legislatures.

I’ll u I’ll rule against the better harm avoider, right? For me. I personally am, have found myself more likely to find cases hard than other people. So for me, 70, I would, I might need more evidence. I might need 80% or 90% of the evidence before. I think I’m confident enough ruling on plurals grounds alone, which means there’s a lot happening in the second order zone.

Somebody else might say, yeah, 55%, right? And they’re allowed to do that. I can’t tell them they’re wrong anymore than they can tell me that I’m. Wrong. How does 51 49 work for non originalism? The best example I can give, there’s a professor, a con law scholar named Mitch Berman at University of Pennsylvania Carey School of Law.

And he has a version of pluralism that is basically a bunch of arrows, right? There’s seven or nine or however many modes of argument you think are permissible. So arguments from the text very wide. ’cause those are very influential. But usually they only point in one direction. Petitioner wins.

Respondent wins a very narrow amount ’cause the text is often not that clear. Arguments from precedent, not as wide, but they might point more arguments from structure, right? So you map out all of the arguments that you think are admissible under your view. You point ’em in different directions. You look at the paper and you’re like, which side wins?

That’s how 51-49 rule would work. 51-49 would be like, ugh, there look like more thickness of arrows on this side. So this side would. I think that’s what judge a lot of judges are doing, if not ex explicitly in those terms.

Hi, I’m Elijah Armstrong. I’m a two L here. In reading your paper, I thought it was really interesting that you chose stare decisis as a second level because for me, instinctually it feels like something you do even before the other forms of interpretation.

And then I feel like because of the fact that especially with change technology, you see so many cases of first impression upon the Supreme Court. I’m curious why it is that you chose to name it a second order and how you feel, especially in cases of. First impression, which are often closed cases by nature.

Yeah. What you think the next step there would be. Yeah. Great. It is true. Wow. Remarkable that you read the paper. Thank you. So it is true that many people might describe stare decisis as a first order. Factor. Even some original originalists agree that stare decisis should matter.

And so maybe they would say, all right, what does the Constitution mean? I have to look at original meaning, and if the Constitution is if the Supreme Court rather has already decided this case, I have to give some weight to that, right? Yes. I don’t know that anybody really is doing that at the Supreme Court on either side.

I think of stare, there’s this famous quote, stare decisis is for suckers, right? I think Stare Decisis is more, at most, especially in constitutional cases, when it’s at its weakest. It’s a sort of second order vibe that might come in. It’s an excuse or a reason to say, oh, I think this case is actually hard.

If I were approaching this question with a blank slate. I see evidence in both our sides. If the Supreme Court’s already ruled, that would be one reason to stick with what we’ve done previously, right? We’re doing that not because it’s right, not because we think the prior justice has necessarily got it right, but because there’s some value to settlement, some value to stability and consistency.

That’s how, why I might describe it as a second order theory. But I have to acknowledge that not everybody would see it that way.

Professor Ryb.

Not a professor, but thank you for flattering me. I have two questions. First, you already brought up the question of maybe a third order constitutional theory in a different context, but thinking to Professor Smith’s question about how we might all actually be pluralist as a matter of first order theory. I’m wondering if just like looking inside myself as a gut check, I think as a second order theory, I might be a pluralist in some sense, in that maybe I think we should seek to minimize irreversible harm in the context of habeas cases or cases involving human death of some sort.

But in other contexts, perhaps we default on legislative judgment or stare Decisis is appropriate when it’s a long history with reliance interests, but less appropriate when it’s a shorter history. And I wonder if first you have to choose a single second order theory for your theory to run. Or if you need a third order theory to differentiate between the second order theories, are we in an endless chain of ordered theories?

We’re always in an endless chain of ordered theories. So that is the first answer. It’s such a lovely question. It’s absolutely right, so I have portrayed, provided a sort of simplified version that there’s one thing happening in the first bubble. And then one thing that you can choose and only one thing in the second bubble, but as Walt Whitman said, you contain multitudes. So in the first order bubble, you might be a plural list, which means you agree with a lot of different things and absolutely, yes. In the second bubble, you could be a plural list too, right? In fact, one of the people who thought more about this type of question than anybody, a professor named Gary Lawson he is a second order the in legislative deference person, but in a pluralist kind of way, in the following sense. He says if you’re, if the court is reviewing a state law and it’s a close case, while states have police power, we will defer to state legislatures. But if the court is reviewing a federal law, Congress isn’t. A body of enumerated powers, the default should be the opposite.

So we were going by default, not going to rule for Congress. So those kinds of of differentiated plural as second order theories are exactly the right thing to do. I’m happy for somebody to do that. As long as they’re not 51 49 rulers at the end of the day.

Thanks and fascinating. I’m asking a computer science question, in what ways do you think you could turn second order constitutional theory into a large language model or chat, GBT or I couldn’t I’m asking, or you and your colleagues. I’m, I was in a Stanford Law Codex presentation about a year ago on legal tech.

Where presenter shared how he took all of state of Iowa’s Supreme Court decisions as PDFs and added it to a machine learning model, and it predicted the outcome. I’m wondering if your thinking here could potentially resolve itself in a computer program that might inform Supreme Court decisions in the future.

Maybe I’m just old fashioned. Boy, I’m scared. About that. I might disagree with what some judges and justices do today, but at least there are people that I can try and reason with. At least I can understand. Their written product and the processes by which they went through that, I, other people might, I cannot understand what’s happening in the large language model.

I worry that we are just moving the power to the coder, right? The person who’s making the choices of what primary data to put in the model. So I am personally uncomfortable with that. But I’m uncomfortable with a lot of things that are probably okay. I dunno. Hi. Yeah, thank you for this.

I’m Madic Chickens, I’m a visiting scholar from Germany, so I’m different, a different background. But my question is have you ever thought about your ordering system to either flip it around to make the second order first or to define the first order more of a framework or structure? What is the idea behind that question is?

I think that often we take other theories or other decision-making processes and pinpoint them against our legal thinking. Would that be the first first order? And because most cases, if we really think about them, these are what you, I think, call heart decision-making processes. So we will not, start with the first order and think it through, but we already know. It will not lead us to a definitive answer to our question. Should we start from somewhere else and pinpoint those ideas we have to our framework. So does it work within your ideas and have you ever thought about the. It’s a timeline of which the Yeah, Orders are, yeah. Put into action. It’s a very intriguing question. I would say no this is just borrowing from the decision theory, but I think it’s especially true for constitutional decision making. I think that there’s broad consensus that what we’re trying to do, what judges ought to do when they get a constitutional dispute is try to tell us the right answer.

They should try to tell us what the constitution means or what it requires above all else. And of course, they’re gonna disagree with what data points go into that equation. But I think we would be uncomfortable with a judge saying, I don’t care what the right answer is. I’m just gonna rule in favor of the government, or I’m just gonna rule in favor of the better harm avoider, even if that’s the wrong answer.

So I would I think, because my definition of a first order theory is a a theory for how to get the right answer in these hard cases. I think you start there, but that is, you do raise an interesting point, which is I think the process. You described a little bit about how you use other fixed points and reason.

There is a reasoning process that every person, judge. Person in the, in andout outline uses called reflective equilibrium, where we often will take if you’re a plural list, different conclusions that you have on one mode of argument, and it might change your mind about a different kind of argument, right?

You’re like, oh, if that’s true, then maybe I’m reading this the wrong way. So everybody should do that in the first order business, and sometimes that will get you out of a hard case, right? Sometimes after thinking through it a lot more, a case might be easier than you thought.

The first order decision rule is to stop at six, and the second order is well to stop at six. Let me just invite the audience to join with me in thanking you for, I thought that was a really fascinating talk and I’m sure it just leaves everybody here. Trying to think through, what do I really think about these things?

Thank you all. The next constitutional conversation is going to be with Professor Allison Larson who I think has recently moved from William and Mary to Texas a and m. Is that right? Maybe the University of Texas. I forget one of those places in that huge. Former Republic called Texas.

And she’s going to be speaking on a really interesting problem and constitutional theory, which is okay. We believe in, at least at some level in precedent with regard to judicial decision, interpretations of law. But when they base their decisions on history, sometimes they get it wrong.

That is, sometimes it’s actually. Verifiable that the history on which the Supreme Court relies is just incorrect. Is there a story decisis effect to their incorrect judgments about history? So if you’re interested in that topic, as I certainly am please come back on February 12th to listen to Professor Larson.

And with that, just let me just thank Aaron Tang. One more time for a fascinating lecture.