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 EASY CASES
FREDERICK SCHAUER*

"We can't start to talk about philosophy and intent and spirit of the
rule if it's [written] there in black and white."
-- George Steinbrenner

I.

Contemporary debates about the theory of constitutional interpre-

tation have generated profound and interesting disagreements, but the
participants in the debates still share a common focus. In one way or
another, virtually every constitutional theorist deems it primarily im-
portant to address the same question: where should we' go in search of
guiding principles for interpreting the linguistically open-ended clauses
of the Constitution, particularly those concerned with individual
rights?2 Other questions are commonly treated as subordinate off-
* Professor of Law, University of Michigan. A.B. 1967, M.B.A. 1968, Dartmouth College;
J.D. 1972, Harvard University. I am grateful to Mary Jane Morrison, Terrance Sandalow, Cass
Sunstein, and James Boyd White for their incisive and critical comments on an earlier draft of this
paper. I have also profited from the comments of the other participants in this Symposium, but I
have taken these comments into account only insofar as doing so would not deflate the sails of my
"official" commentators.
1. One who uses "we" as often as I do is properly called on to provide some specification.
See White, Law as Language: Reading Law and ReadingLiterature, 60 TEX.L. REy. 415, 442-43
(1982). In my case, "we" means nothing more nor less than "the United States of America," and
thus has the same temporal and institutional ambiguities as any description of a nation. But
although I do not intend my use of "we" to mask or make contested points about constitutional
theory, there is still a message implicit in this use of the societal "we." All members of a society,
and certainly to a greater extent those of us who write about that society, must share the responsi-
bility for the product of which we are in some way participants, in some way creators, and in some
way beneficiaries. Obviously certain individuals are more directly involved in some enterprises
than are others, and those individuals can properly be criticized or urged from a relatively exter-
nal vantage point. But the supernumeraries are also essential to the success of the opera, and a
frequent use of "we" is a reminder that commentators, lawyers, and judges are all characters in
the same performance. If I, as an American, as a lawyer, and as a student of the Constitution, can
share some of the pride in United States v. Nixon, 418 U.S. 683 (1974), New York Times Co. v.
Sullivan, 376 U.S. 254 (1964), and Brown v. Board of Educ., 347 U.S. 483 (1954), then I must, as
an American, as a lawyer, and as a student of the Constitution, share some of the blame for
Korematsu v. United States, 323 U.S. 214 (1944), Debs v. United States, 249 U.S. 211 (1919), and
Lochner v. New York, 198 U.S. 45 (1905).
2. Think about the commerce clause. It is extremely open ended in linguistic form, and
 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 58:399

shoots of this inquiry, including the question of what substantive prin-

ciples are to be found when we arrive at the location urged by the
constructor of the theory.
The nature of this primary question leads those who think about
the Constitution to focus on but a narrow slice of the full range of ques-
tions that could be subsumed under the general heading of "constitu-
tional theory. ' 3 That narrow slice is, by and large, Supreme Court
adjudication of cases arising under a limited number of clauses of the
Constitution: the first amendment; some of the criminal procedure pro-
visions of the fourth, fifth, and sixth amendments;4 the due process

questions surrounding its interpretation raise pervasive and weighty issues of American political
philosophy. But the commerce clause rarely receives much attention from constitutional theorists.
Perhaps the reason is that questions of the reach of the commerce clause are no longer considered
open for serious reconsideration, at least after, e.g., Perez v. United States, 402 U.S. 146 (1971) and
Katzenbach v. McClung, 379 U.S. 294 (1964). But see Hodel v. Virginia Surface Mining & Recla-
mation Ass'n, 452 U.S. 264, 307 (1981) (Rehnquist, J., concurring in the judgment). But an alter-
native hypothesis is that issues of constitutional interpretation that do not primarily implicate
individual rights are found either less interesting or less important by today's generation of consti-
tutional scholars. See Shapiro, Fathersand Sons: The Court, the Commentators, and the Search
for Values, in THE BURGER COURT. THE COUNTER-REVOLUTION THAT WASN'T 218 (V. Blasi ed.
1983). Yet another hypothesis is that the focus of the constitutional theorist's attention will be
partially determined by those substantive areas encountered in connection with the theorist's sub-
stantive teaching. As the discipline we call "constitutional law" expands, what was formerly one
course has most commonly been subdivided into several courses. This in turn increases the likeli-
hood that someone keenly attuned to equal protection, due process, or free speech problems will
not have extensive annual exposure to, for example, commerce clause problems. The same phe-
nomenon exists even with respect to some substantive areas that do fit an "individual rights"
characterization, such as criminal procedure, the right to notice and hearing in the administrative
process, the right to notice and hearing prior to the imposition of prejudgment remedies, and the
due process restraints on jurisdiction and choice of law. This list is only partial, and one could
come up with many topics in the subjects labeled "family law," "federal courts," and "mass com-
munications" that raise important questions of judicial review and constitutional interpretation,
but which are rarely considered in courses labeled "constitutional law." I am not saying that there
is anything wrong with this development. I have no desire to teach due process limitations on
taxation of out-of-state businesses. But it is important to acknowledge that the scenery one sees is
largely a function of the road on which one is traveling. To generalize about constitutional law
from certain particular topics within a course somewhat artificially named "Constitutional Law"
runs a serious risk of distortion. We may not be able to eliminate this distortion, but we will have
taken a big step when we acknowledge its existence.
3. What counts as a "theory" varies with both purpose and discipline. Thus, the standards
for what will be considered a successful theory of the Constitution will turn on whether that
theory is designed to be guiding, helping judges to decide cases; predictive, enabling those outside
of the enterprise to predict how judges will decide cases; or explanatory, seeking generally greater
understanding of the enterprise of constitutional law without reference to any specific pragmatic
goal. But I intend my references to "constitutional theory" to be as noncontroversial as possible,
referring in an entirely standard way to thinking about the enterprise of constitutional adjudica-
tion and the role of the Constitution from a perspective that does not concentrate on particular
substantive areas, but instead concentrates on methodology.
4. See supra note 2. Even those who areintimately acquainted with the criminal procedure
1985] 1_ESY CASES

clause of the fifth amendment; the eighth, ninth, and tenth amend-
ments; the thirteenth amendment; the equal protection, due process,
and privileges and immunities clauses of the fourteenth amendment;
section five of the fourteenth amendment; perhaps the exceptions and
regulations clause of article III; and those provisions throughout the
remainder of the document that are found helpful insofar as they pro-
vide clues to interpretation of the clauses just mentioned.5 Some might
quarrel with particular inclusions or exclusions here, but the point is
not dependent on the adequacy of this catalogue. Any list of clauses
that generate the important questions of constitutional theory, seem-
ingly lengthy as it is, is still not nearly as lengthy as the list of clauses,
articles, and amendments not found in the foregoing enumeration.
Constitutional theory as now practiced is concerned with a relatively
small portion of the entire Constitution insofar as space occupied in the
document constitutes the standard of measurement.
Now of course it is silly to assess the significance of constitutional
provisions by reference to the amount of physical space they occupy in
the written document. Some provisions are simply more important
than others, and the aggregate of these provisions is thus likely to gen-
erate more issues of interest to the constitutional theorist. If we look at
the cases litigated not only in the Supreme Court, but also in the lower
state and federal courts,6 we will usually find the justification for focus-
ing on those clauses rather than on others.
But am I being silly? I do not want to press the point too far by
making a plea for the importance of the Letters of Marque clause7 or

aspects of constitutional law tend to give relatively little attention to criminal procedure when they
concentrate on constitutional theory. See, e.g., Grano, JudicialReview and a Written Constitution
in a Democratic Society, 28 WAYNE L. REv. 1 (1981).
5. For example, John Ely's use of the amendments extending the franchise to help support
his arguments about principles of interpretation for the open ended provisions. J. ELY, DEMOC-
RACY AND DISTRUST 98-100 (1980).
6. Many of the considerations discussed supra note 2 apply as much to state courts and to
lower federal courts as to "peripheral" substantive areas. Not only are the lower courts the reposi-
tory of a vast corpus of constitutional adjudication, but some particular important questions of
constitutional theory relate precisely to the special role of the lower courts. One particulally im-
portant example of the latter phenomenon is the question of the ability of lower courts to follow
rules or standards set forth by the Supreme Court. See Corr, Retroactivity: .A Study in Supreme
Court Doctrine "As Applied," 61 N.C.L. REV. 745 (1983); Easterbrook, Ways of Criticizing the
Court, 95 HARV. L. REv. 802, 807-11 (1982); Schauer, Refining the Lawmaking Function of the
Supreme Court, 17 U. MICH. J.L. REF. 1 (1983).
7. Actually, there are two clauses concerning Letters of Marque and Reprisal. One grants
to Congress the power to grant them. U.S. CONsT. art. I, § 8, cl. 11. The other specifically prohib-
its the states from granting Letters of Marque and Reprisal. U.S. CONsT. art. I, § 10, cl. 1. The
 SOUTHERN CALIFORNIA LAW JEVIEW [Vol. 58:399

the third amendment,' but consider some of the provisions that are
rarely, if ever, taken to present interesting questions of constitutional
theory. Included in this category are almost all of the structural provi-
sions of articles I, II, III, and V: provisions that establish the Congress,
set out the apportionment and method of election of members of the
Senate and House of Representatives, create and define the presidency
and the judiciary, mandate the age, citizenship, and residency require-
ments for the President and members of the House and Senate, provide
for an impeachment process and divide responsibility for it between the
House and Senate, establish an amendment process, and, most impor-
tantly, set forth the mechanism by which mere proposals become the
law of the land. Many of the amendments are also included in this
class of constitutional provisions that are rarely, if ever, taken to be the
stuff of constitutional adjudication or constitutional theory, for exam-
ple, the extension of the franchise to former slaves in the fifteenth
amendment, to women in the nineteenth, and to eighteen year-olds in
the twenty-sixth; distinct election of the Vice-President in the twelfth
amendment; establishment of the income tax in the sixteenth amend-
ment; popular election of Senators in the seventeenth amendment; and
the limitation of the President to two terms of office in the twenty-
second.
Having drawn up this merely partial list, I want to ask the same
question again. Are the clauses just listed, and others like them, impor-
tant? These clauses do, after all, establish the governmental structure
of a republic that has endured, so far, for 197 years, which is no mean
accomplishment. Each clause mentioned exerts considerable influence
on how this government operates, and on what makes this republic
quite distinct from most others. It would be odd indeed to deny the
importance of those clauses that are rarely, if ever, the subject of
litigation.
That these parts of the Constitution are important does not, of
course, answer the question of whether these and similar clauses are

existence of the latter, by application of the maxim expressio unius est excluslo alterius, casts seri-
ous doubts on the textual authority for the dormant commerce clause power.
Are the Letters of Marque clauses less significant in our constitutional history than Justice
Duvall? Cf. Currie,The Most InsignpfcantJustice: A PreliminaryInquiry,50 U. CHI. L. REv. 466
(1983); Easterbrook, The Most Insign#ffcant Justice: FurtherEvidence, 50 U. CI. L. REv. 481
(1983).
8. Actually a third amendment claim has recently been upheld, at least as against a sum-
mary judgment dismissal. Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982). But few would object
to Judge Mansfield's understated assertion that the third amendment is "a provision rarely in-
voked in the federal courts." Id. at 961.
1985] EASY CASES

important to the enterprise of constitutional theory; their importance

depends on what we take to be the goals of constitutional theory. If the
function of constitutional theory is, by stipulation, an analysis of the
process of adjudicating the reach and strength of the majestic and open
ended individual rights provisions, then the structural and related pro-
visions of the Constitution are, by definition, unimportant, or at least
not central, to constitutional theory.
It seems peculiar, however, to accept such a constricted view of the
enterprise of constitutional theory. Once we recognize the ways in
which many rarely litigated 9 constitutional provisions have a profound
effect on the nature and direction of American public life, excluding
those provisions from the attention of the constitutional theorist is
counterintuitive. It is not simply a matter of dividing the universe of
constitutional theory between the lawyers and the political scientists.
The structural provisions of the Constitution, including and perhaps
especially those that never see the judicial system, represent a critical
source of the public's attitude towards this Constitution and towards
constitutionalism in general. This attitude, in turn, is an ever-present
consideration in the kinds of issues and disputes with which constitu-
tional lawyers, qua lawyers, deal.. Controversies about congressional
control of Supreme Court jurisdiction,' 0 the virtues or vices of selective
avoidance of decision,"' and even the design of more particular sub-
stantive doctrines' 2 constantly take account of the ways in which the
judiciary is poised with or against the body politic, and with or against
the other branches of government. Constitutional adjudication exists
9. It is also important to bear in mind that a court is not necessarily the only forum for
debate about the meaning of constitutional provisions. In the first half of the nineteenth century,
such debates routinely occurred in legislatures, a phenomenon that was most prominently re-
peated during the House impeachment proceedings in committee in 1974.
10. See generaly Sager, The Supreme Court, 1980 Term-Foreword: ConstitutionalLimita-
tionson Congress'Authority to Regulatethe Jurisdictionofthe FederalCourts, 95 HARV. L. REv. 17
(1981).
11. Compare Bickel, The Supreme Court, 1960 Term-Foreword" The Passive Virtues, 75
HARV. L. REv. 40 (1961) (the Court should utilize its broad discretion to limit the scope of its
adjudication to permit constitutional principles to ripen), with Gunther, The Subtle Vices of the
"PassiveVirtues'" A Comment on PrincoleandExpediency in Judicial Review, 64 COLUM. L. Rv.
1 (1964) (Bickers view of judicial restraint impermissibly extends the Court's legitimate discretion
to an avoidance of its obligation to hear proper cases).
12. For example, we might wish to design first amendment doctrines in such a way that they
would be particularly strong in the face of public pressures to suppress. See Blasi, he Pathologi-
cal Perspective and the FirstAmendment, 85 CoLuM. L. REv. (forthcoming 1985). Whether this
is a good idea is not at issue here, but it seems plain to me that any intelligent formulation of first
amendment doctrine must at least consider the public sentiment about both speech and the first
amendment that existed in 1919, in 1950, during the Vietnam War, and even in less tumultuous
times.
 SOUTHERN CALIFORNIA LA, REVIEW [Vol. 58:399

within a framework held together by acceptance of the Constitution as

this nation's constitutive and governing instrument. The existence of
this acceptance, as well as the location and seriousness of the cracks in
its welds, is a product of the nonlitigated portions of the document as
much as, if not more than, the litigated. Constitutional adjudication is
intimately and frequently concerned with those general attitudes about
the Constitution that are by no means necessarily produced by or pecu-
liar to adjudication, however, because preserving and operating within
this framework is in part the responsibility of the courts. Unlitigated
portions of the Constitution remain important influences in many ways
on the process of adjudication, and drawing an artificial line between
the litigated and the settled clauses for the purpose of selecting the re-
spective turfs of the law schools and the political science departments
neglects a major factor in constitutional adjudication.
Of greater concern to me here, however, is the extent to which we
can explain why some provisions are so often litigated while others,
seemingly equally important, are rarely before the courts. Once we
recognize the pervasive effect of many constitutional clauses that sel-
dom prompt adjudication, we see that no intrinsic sense of importance
uniquely determines the agenda of either constitutional litigation or
theory. Rather, the division between what constitutional theorists have
focused on and what they have largely ignored is a product of what has
and has not been before the courts. This in turn is influenced by the
often fortuitous way in which some clauses have been drafted in differ-
ent styles from others. Although the stimuli that serve to prompt or
discourage litigation are complex, 3 the language of the arguably appli-
cable legal standard is a commonly understated factor. The focus of
constitutional litigation on certain substantive areas is importantly,
although certainly not exclusively, a product of linguistic design, in
which relatively precise language forestalls litigation with respect even
to matters of great moment, while relatively vague language encour-
ages litigation, even as to matters that are comparatively trivial. This
phenomenon can be illustrated by a thought experiment in which we
engage in a temporary rewriting of the Constitution.
Imagine that, instead of the current provisions regarding the mini-
mum age qualifications for holding various positions, there existed one

13. I find it important and altogether praiseworthy that legal scholars have begun to consider
the extent to which reported appellate cases, and even litigation in general, represent a skewed
sample of legal life. Eg., Priest & Klein, The Selection of Disputesfor Litigation, 13 J. LEGAL
STUD. 1 (1984).
1985] EASY CASES

such clause covering the Presidency, the Senate, and the House of Rep-
resentatives, which specified only that holders of these offices must
have "reached an age representing sufficient maturity to perform the
duties requisite to the office." 4 Imagine as well that the fifteenth, nine-
teenth, and twenty-sixth amendments were replaced by a clause pro-
viding that "neither the United States nor any State shall unreasonably
deny to any citizen or to any class of citizens the right to vote." Contin-
uing the process of rewriting, replace the equal protection clause with
"nor shall any State classify persons on account of their race or color
for any purpose whatsoever, but no other classification shall be prohib-
ited by this Constitution except as explicitly contained herein." The
due process clause could be changed as well to read "nor shall any
State deprive any person of life, imprison any person, or impose a
criminal fine upon any person, unless the State provides to said persons
notice of the charges against them, and an opportunity to be heard in
their defense." And, for the final revision, repeal the ninth amendment
and the privileges and immunities clause of the fourteenth amendment.
Taking all of these changes together, what can we predict would
be the subjects of constitutional litigation and the agenda of constitu-
tional theory? In contemplating this question, bear in mind that I have
tried to minimize the substantive changes in my rewritten constitution.
There are some substantive modifications, but they are not enormous,
at least not from the perspective of the drafters' intent.' 5 It is well
within the range of comprehension that the Constitution could have
been written as here modified, and yet still be broadly consistent with
the values it was designed to espouse. The difference between my con-
stitution and the Constitution, however, is that I have made some of the
general clauses specific, and some of the specific clauses general.
What, then, would be the mix of litigation under this rewritten
constitution? It seems likely that many currently hard cases would be-
come substantially easier, and many currently easy cases would be-
come substantially harder. This would influence the substantive

14. I assume for purposes of this thought experiment that this provision could be litigated in
the courts, rather than being barred as a nonjusticiable "political question."
15. This is not to suggest that I believe that original intent should be a dispositive or even a
major source of guidance for constitutional interpretation. See Schauer, .4n Essay on Constitu-
tionalLanguage, 29 UCLA L. REv.797 (1982). I formulate the issue in this way only to demon-
strate that from the drafter's perspective there is always the question of how broadly or narrowly
to draft the particular rule, even after its substantive content has been settled. The drafter of a
rule invariably has in mind a certain set of facts that the rule is primarily intended to encompass.
The question then arises of how much broader than this archetype the rule should sweep, in terms
of either the currently perceived or the presently unforeseeable.
 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 58:399

distribution of cases coming before the courts, but I believe that my

newly created vague clauses would still generate many claims and sub-
sequent occasions for adjudication. One important impulse towards 16
litigation, or even for consulting a lawyer, is uncertainty in the law,
and vagueness in the governing standard is a significant source of the
uncertainty that prompts litigation. I recognize that this proposition is
to some either an open question or palpably erroneous 17 and I will deal
with this claim presently. Nevertheless, the intuitive response that my
rewriting of the Constitution might make a difference should be suffi-
cient, at least presumptively, to suggest that the nature of the language
is an important factor in separating the hard cases from the easy cases.
Although much of what is to follow will deal directly with the
claim that constitutional language is a significant determinant of the
effect of the Constitution on American life, this claim--considered by
many to be highly controversial-is not a necessary link in my argu-
ment about easy cases. Even if language were not a significant factor,
other factors might yet serve to produce constitutionally easy cases.
Even easy cases in this sense, however, have not commanded the atten-

16. Note that the claim made in the text, at least to this point, is independent of the sources
of certainty or uncertainty in the law. More particularly, the claim is compatible with a Realist
view of the importance of doctrine, because the source of certainty or uncertainty may be the
political or psychological makeup of the judge, rather than the constraints of constitutions, stat-
utes, or precedents. See Priest & Klein, supra note 13, at 7. It is possible, of course, to deny the
claim made here, even in this relatively noncontroversial form. That is, one could claim that the
processing of grievances by society is largely, if not completely, independent of the expected out-
come of the adjudication of a ripe dispute premised on that grievance. To the extent that such a
view is implicit in Tushnet, A Note on the Revival of Textualism in ConstitutionalTheory, 58 S.
CAL. L. REV. 683, 688 n.24 (1985), it seems neither sensible nor supported by the literature. See
Gollop & Marquardt, A Microeconomic lodel ofHousehold Choice: The Householdas a Dispu-
tant, 15 LAW & Soc'Y REv. 611 (1980-1981); Johnson, Lawyers' Choice: A4 Theoretical4ppraisalof
LitigationInvestment Decisions, 15 LAw & Soc'Y REv. 567 (1980-1981); Priest & Klein, supra note
13.
The issue here is merely another manifestation of an issue that pervades much of this Article,
the ability to comprehend that a factor can matter without being necessarily dispositive. It is quite
simply a blunder to hold that, because a factor may be overridden or outbalanced by other factors,
it is not a factor in the decision process. As applied here, the question is whether uncertainty of
litigation outcome is a factor in determining what cases are litigated and what cases are not. My
answer to that question---"Of course"--in no way implies that there are no other factors, or that
those other factors might sometimes, frequently, or even usually be more important.
17. Unlike the claim made supranote 16 and accompanying text, the claim here is stronger:
that the language of the governing standard, whether constitution, statute, rule, or precedent, is a
factor in producing or reducing certainty or uncertainty about litigation outcome. Again, the
claim is only that it is a factor, not an invariably controlling factor. Even in this form I acknowl-
edge that it confronts head-on most of the more extreme versions of Realism. So be it. Most of
this Article is devoted to that confrontation, so I will provide no further argument or reference
here.
1985] EASY CASES

tion of the constitutional theorist. Contemporary constitutional theory

has become mired in a fixation with the decision of hard cases, and this
claim is largely independent of the definition of a hard case. By ignor-
ing the innumerable instances in which potential disputes are not liti-
gated, and by ignoring the infinitely larger class of actions governed by
the Constitution but not thought subject to any controversy regarding
application, the contemporary agenda has neglected an enormous por-
tion of constitutional law. It has forgotten the easy case.',
As I have already noted, part of my concern with easy cases is an
interest in the many ways in which the Constitution channels and con-
stitutes American public and private life. To the extent that this impor-
tant channeling and creation of institutions is a function of the clear
mandates of some parts of the Constitution, the phenomenon of the
easy case is worth close consideration in its own right. If the phenome-
non of law is not limited to the decision of cases, and there seems no
good reason to assume that it should be, then the effect of law on be-
havior, both individual and institutional, is of great concern and cannot
be studied accurately and fully by focusing only on that distorted sam-
ple of cases appearing in the published reports.
Of particular importance in the context of this forum is the extent
to which easy cases tell us something about hard cases. A theory, or at
least a set of insights,' 9 about easy cases is the necessary first step to-
ward development of a theory for dealing with hard cases. For when
we have some idea of what makes easy cases easy, we will know better
where the hard cases are. Moreover, we will know why the hard cases
are hard, and thus can focus more carefully on the appropriate factors
for decision of hard cases. The decision of easy cases and the decision
of hard cases are commonly treated as largely unconnected enterprises,
especially in constitutional law.20 If I can here expose that error, and

18. The phenomenon of the "easy case" has not gone unnoticed in the literature, but empha-
sis has generally been placed on showing how even the easy cases are in some respects hard. Eg.,
Conklin, ClearCases, 31 U. TORONTO L.J. 231 (1981); Easterbrook, Statutes' Domains,50 U. CHI.
L. REv. 533 (1983); Levinson, Law as Literature,60 TEx. L. REv. 373 (1982); Lyons, Justfication
and JudicialResponsibility, 72 CALIF. L. REv. 178 (1984). I do not disagree that most easy cases
are in some significant respect harder than they seem, but they are also in some significant respect
easier than other cases. It is important that acceptance of the former proposition not blind us to
the importance of the latter.
19. I have great sympathy for Holmes' observation, "I care nothing for the system-only for
the insights." I HOLMES-LASKI LETTERS 300 (M. Howe ed. 1953).
20. I do not want to generalize too much from constitutional law. My impression is that the
Internal Revenue Code, the Uniform Commercial Code, and the Federal Rules of Evidence, for
example, receive far more attention as texts from those involved with those disciplines than does
the Constitution from those involved with constitutional law.
 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 58:399

prompt serious thinking about easy cases, then much will have been
accomplished, even if the more controversial or more global theses in
what is to follow are ignored.
II.

In order to get this enterprise off the ground, we need some work-
ing notion of what counts as an easy case. It is likely that we have often
operated with a constricted perception of the realm of easy cases, pro-
ducing a distortion of our outlook on the legal enterprise. To break out
of this constraint we must explore thoroughly all domains in which
easy cases may lurk. Once we enter some of this commonly neglected
territory, we will see that easy cases are far more numerous than is
often appreciated. This foray will enable us to try to identify those
factors that make a case "easy."
For the student of the Constitution, a reference to an "easy case"
suggests a case that is easy for the Supreme Court to decide. But which
cases are these, and how do we recognize them? The Court, after all,
would rarely say that a case was easy to decide, and even a statement
that a case was easy must be taken with a grain of salt.2 1 By selectively
avoiding problems, an opinion can make a hard decision look easy in
retrospect. 2 Because decisional difficulties can be thus masked in an
opinion, a mere reading of the opinion is, at best, an imperfect gauge to
the decisional process that leads up to the result.
The same avoidance of doctrinal problems often makes unanimity
on the Court suspect. Although unity may occasionally be helpful in
identifying an easy case,' it is often the product of the Court's desire to
speak with one voice on a particularly important issue, leaving behind
it the doctrinal difficulties that may have accompanied the process of
decision. Neither Brown v. Board of Education24 nor United States v.
Nixon 5 are generally considered to have been easy cases, although a

21. For example, Chief Justice Warren's opinion in Gregory v. Chicago, 394 U.S. 111 (1969),
commences with the observation, "[tihis is a simple case." Id at 111. Yet, consideration of Greg-
ory in light of other hostile audience cases, such as Feiner v. New York, 340 U.S. 315 (1951), not
cited in Gregory, belies that Gregory was an easy decision.
22. See B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921).
23. The extent that unanimity suggests an easy case depends, of course, on the Justices on
the Court. The more diverse their views, the more probative unanimity will be. The significance
of unanimity in, for example, Jenkins v. Georgia, 418 U.S. 153 (1974), lies in the ability to say,
"Even Justice Rehnquist agreed"
24. 347 U.S. 483 (1954).
25. 418 U.S. 683 (1974).
1985] EASY CASES

complex array of institutional and political considerations made it im-

portant that there be no dissenters in either case.
In some instances a Supreme Court case may be "easy" because of
particularly compelling factual circumstances. A good recent example
2 6 Ardent civil liber-
is the child pornography case, New York v. Ferber.
tarians may quarrel with the result, but one need not be an arch-Realist
to have predicted that the Court would not protect plainly commercial
child pornography. And it didn't, although the route 27
to that decision
was by no means unlittered with doctrinal difficulty.
In other instances easy Supreme Court cases are generated by doc-
trinal rather than factual simplicity, in the sense that existing doctrine
makes the resolution of the dispute relatively noncontroversial. Thus,
although members of the Court may differ about the breadth of a hold-
ing, or about the appropriate analytical route to the result, cases such as
United States v. Grace28 and Kirchberg v. Feenstra29 are examples of
decisions seemingly compelled by the application of relatively settled
doctrines.
But this entire exercise of attempting to find the sources of easiness
in Supreme Court decisions seems strained. And that is because there
are no easy cases in the Supreme Court. If the case were that easy,
certiorari would have been denied'3 0 the appeal would have been dis-
missed for want of a substantial federal question, or a clearly erroneous
result below would have been overturned summarily. In most cases,
therefore, the very presence of a full Supreme Court opinion indicates 3
that the case was considered at least slightly difficult for some reason. 1
From this vantage point it appears that the Supreme Court, far from
being the first place to look for easy cases, ought to be the last place.
No other repository of decisionmaking authority has been so able to

26. 458 U.S. 747 (1982).

27. See Schauer, Codifying the FirstAmendment: New York v. Ferber, 1982 Sup. CT. REv.
285. Indeed, the Court even acknowledged that a contrary decision could have been consistent
with the Court's earlier precedent. Ferber,458 U.S. at 753.
28. 461 U.S. 171 (1983).
29. 450 U.S. 455 (1981).
30. At times a denial of certiorari, which the public usually perceives as an affirmance on the
merits, may be the Court's way of announcing that a case is easy. See, e.g., Collin v. Smith, 578
F.2d 1197 (7th Cir. 1978), slay deniea 436 U.S. 953, cert. denie 439 U.S. 916 (1978).
31. Even though a case is in some respects or even in most respects unproblematic, the Court
may perceive the importance of "making a point." See, e.g., United States v. Grace, 461 U.S. 171
(1983); Jenkins v. Georgia, 418 U.S. 153 (1974). And at times it is so important to make a point
that the Court almost casually dismisses sources of difficulty. See, e.g., Palmore v. Sidoti, 104 S.
Ct. 1879 (1984).
 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 58:399

remove itself successfully from involvement in the mundane issues of

the adjudicatory world. Thus the Supreme Court, as keeper of its own
gates, can by and large prevent most easy cases from ever reaching full
decision in the Supreme Court.
If one looks at the federal and state appellate courts instead of
looking at the Supreme Court, the situation appears rather different. In
these courts, at least with respect to appeals of right, 32 no screening
mechanism ensures that the time and energy of the judiciary is not
wasted on restating the obvious. In appeals as of right, therefore, there
are many cases that would be perceived by the court involved, the aca-
demic world, other external observers-indeed by everyone except the
appellant-as easy. In these instances, claims are either upheld or de-
nied on the basis of little more than mechanical application 33 of ex-
isting rules with little anguish on the part of the court.
The previous paragraph presupposes that there is such a thing as
an easy case in an appellate court. It assumes that there are at least
some cases in which the result flows almost inexorably from a relatively
straightforward application of plainly applicable and identifiable legal
rules contained in easily located preexisting legal materials. 34 This
claim, however, is exactly what the Realists deny.35 In its more extreme
versions, Realism would maintain that sufficient precedents, some con-
flicting and many intersecting at various angles, exist so that an appel-
late judge can rationalize from precedent or written law a result
conceived prior to consultation of that precedent or law. Under this
view, a judge's own moral, political, psychological, Oedipal, or intesti-
nal predilections determine the result. The judge only constructs apost

32. Two factors minimize the differences between practice in the United States Supreme
Court and in the other appellate courts. First, some state appellate courts have at least some
version of the discretionary appeals process. See, e.g., VA. S. CT. R. 5:21-:29. Second, summary
dispositions and nonpublication of opinions have become increasingly prevalent in the federal
system. See, eg., 1ST CIR. R. B.; 2D CIR. R. 0.23.
33. In order for an application to be characterized as "mechanical," many potential
problems must be nonexistent, some but not all of which are linguistic. See generaly N. MAC-
CORMICK, LEGAL REASONING AND LEGAL THEORY (1978); Lyons, supra note 18, at 180-81.
34. My reference to "preexisting legal materials" is meant as a noncontroversial reference to
those materials most commonly taken to be the sources of law, including constitutions, statutes,
regulations, and reported cases.
35. Ronald Dworkin, who rejects any demarcation between those materials that would com-
monly be considered "legal" and those that would not, also denies this claim. See generally R.
DwoRKIN, TAKING RIGHTS SEIuousLY (1977). Unlike the Realists, however, Dworkin is not
challenging the extent to which human or judicial behavior can be channeled by rules. He is only
questioning the received view regarding the source and structure of those rules relied upon by
judges. Thus, any quarrels I may have with Dworkin are not particularly relevant here.
1985] EASY CASES

hoc legal justification for the nonlegally derived result in order not to
affront the accepted myths of society, including the myth of the rule of
law.
As will shortly become apparent, I believe this view to be an accu-
rate description of some judicial decisions, and maybe even many judi-
cial decisions. To take this view as an accurate generalization of allor
even most judicial decisions, however, seems at least erroneous and at
times preposterous. But at this particular point I do not want to get
bogged down in my differences with the Realists. For the time being,
therefore, I am willing to concede that the Realists are correct: I will
concede that there are few, if any, easy cases in any appellate court.
Are there, then, easy cases in the trial courts? In terms of cases
that reach trial and decision, there are probably very few. Indeed, easy
cases are most likely less prevalent in trial courts than in appellate
courts. The appellate process narrows the issues, but, since trials take
place prior to this narrowing, they raise a substantially larger number
of factual and legal issues. And as the number of issues increases, the
potential justifications for making a decision one way or another also
increase, thus making it more difficult to designate as "easy" any final
trial court decision.
Despite this potential to claim that there are fewer "easy" cases at
the trial court level, there is reason to believe this hypothesis is suspect.
Few cases that are filed reach final decision after a full evidentiary
hearing. Many are settled, and many others are decided by the various
devices designed to sort out the hard cases from the easy ones, particu-
larly summary judgment and dismissals on the pleadings. Neverthe-
less, one can hew to the Realist line with respect to pretrial
terminations. To Jerome Frank,3 6 for example, the injection of con-
tested factual issues at any point in the trial process was sufficient to
make uncertain the results in almost every case that in some way
wound up in court.
Again, I do not want my argument to turn at this point on my
disagreements with Realism. So let me make another concession, one
that is rather broader than the previous one: I will concede that there
are few if any easy cases anywhere in the litigation process, and that
any case filed in a court is capable of being decided one way or another
relatively unconstrained by precedent or written law.

36. I am referring here primarily to Frank's "fact-skepticism." See J. FRANK, COURTS ON

TRiAL (1949).
 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 58:399

Despite this broad concession, I still believe there are many easy
cases, but we can see this only by removing the blinkers of much of
traditional legal theory. To many, the analysis of easy cases ends with
the litigation process, ignoring the huge number of "cases" that never
leave the lawyer's office. In a strict sense these matters are not "cases,"
if a "case" is restricted to mean a matter that is filed in a court. These
are, however, matters in which someone has found it desirable to take
legal advice, and thus it seems as if the law is at least presumptively
relevant. Some of such matters will ripen into real "cases", and we can
assume, arguendo, that most will be in some sense hard cases. Never-
theless, there are many circumstances that may involve an actual or
potential dispute, and may therefore occasion a visit to the lawyer, but
may never reach the courthouse. Every time some claimed grievance
stays in the lawyer's office because litigation seems futile, we have an
easy case.37
In addition to matters involving actual or potential disputes, there
are also instances in which a transaction is arranged, a course of action
planned, or a recommendation given on the basis of what the law re-
quires or prohibits, in the absence of a dispute or grievance. Some-
times the law governing such matters is unclear, and thus the advice
may resemble the decision of a hard case.3 In many other cases, how-
ever, a lawyer's advice is likely to be a product of legal mandates that
are largely unequivocal.
It is not always the case that the law, however clear, will be fol-
lowed in those instances in which planning rather than resolution of
preexisting grievances or disputes is involved. For example, a transac-
tion may be so important that one or more of the participants is willing
to assume the risk of inconsistency with the law. Here the transaction
is likely to be designed with one eye on litigation strategy, or on mini-
mizing the chances of apprehension by the authorities. More com-
monly, however, transactions can be designed more flexibly. The aim

37. The claim here is not that only hard cases emerge from the lawyer's office. Some cases
that would be close cases doctrinally if litigated to conclusion are nonstarters, for a variety of
reasons. Other cases that would be straightforward if litigated to conclusion are hotly contested,
for a variety of reasons. My claim here is not that doctrinal easiness is dispositive--only that
doctrinal easiness matters, that it is a factor. If it is a factor, then it can be the determinative factor
in many cases even if it is not the determinative factor in all cases.
38. To the extent that clients follow the opinions or advice of lawyers, lawyers themselves
are part of the lawmaking process. This is especially true where lawyers' opinions are set forth
formally with a somewhat canonical quality. The best example of such involvement is the formal
opinion given by an English barrister, but involvement also exists in those areas, such as issuance
of securities, where a formal opinion is virtually a necessary part of the process.
1985] 19851ESY CASES

is frequently to avoid any legal difficulties-to create, in a sense, the

easy case.
When a lawyer creates the easy case, the lawyer is not simply tell-
ing the client to do whatever the client wishes. Few issuers of securi-
ties, for example, have a prelegal desire to fie voluminous documents
with the Securities and Exchange Commission and with state "Blue
Sky" agencies. Further, not many of us wish to make voluntary contri-
butions in support of state, local, and federal governments. It is also
rare that a manufacturer, sincerely and without regard to the law,
desires to affix warnings to its products, redesign its factories to further
the goals of worker safety, or install elaborate environmental protection
devices. Yet all of these activities occur, frequently because a lawyer
tells a client that this is what must be done. In these instances, behav-
ior is diverted from its "natural" or prelegal course by the law. This
channelingof behavior occurs most often because the law speaks with
at least usable clarity. Tolerably clear law enables the lawyer to give
straightforward advice that channels the client's behavior from what it
otherwise would have been. Each time this happens we have, in an
important sense, an easy case.
Introducing the lawyer into the foregoing scenario is an unneces-
sary complication, however. Although there are many instances in
which uncertainty about a proposed course of conduct prompts a per-
son to follow legal advice, the quantity of such instances, however
large, is dwarfed by the number of times that the law guides behavior
without any intervention whatsoever by lawyers, judges, or police of-
ficers. Every time I stop at a "STOP" sign, pay my taxes on or before
April 15, file a conflict of interest disclosure form with my state em-
ployer, or refrain from watering my lawn because of drought control
regulations, I am, solely because of legal mandate, doing something I
would not otherwise have done. In each of these instances, the diver-
gence between the behavior that would have occurred but for the law
and the behavior that occurred because of the law can be called a
"legal event," although hardly as visible or famous as a hard case that
reaches an appellate court. There is, nevertheless, no reason to con-
sider following the law less important than breaking the law, or less
important than playing close to the line. All are very much part of the
law. It is only because of the frequency with which the law is followed
that the significance of this commonplace phenomenon is ignored. Fol-
lowing the law is a legal event, and the vast majority of these legal
events are easy cases. Within this domain, the relationship between
 SOUTHERN CALIFORAIA LAW REVIEW [Vol. 58:399

legal norm and human behavior is largely noncontroversial, at least in

the sense that the applicability of the norm to the behavior seems clear.
This is by no means always the case, but when it is we have in another
sense, and perhaps the most important sense, an easy case.

III.
Once we expand our notion of a "case" to include all legal events,
it becomes clear that there are easy cases in constitutional law-lots of
them. The parties concerned know, without litigating and without con-
sulting lawyers, that Ronald Reagan cannot run for a third term; that
the junior Senator from Virginia, who was elected in 1982, does not
have to run again in 1984 or 1986 even though the Representative from
the First Congressional District does; that bills receiving less than a
majority of votes in either the House or the Senate are not laws of the
United States; that the Equal Rights Amendment, the District of Co-
lumbia Representation in the Senate Amendment, and the Balanced
Budget Amendment are not now part of the Constitution; and that a
twenty-nine year-old is not going to be President of the United States.
I have equivalent confidence that I will not receive a notice in the mail
informing me that I must house members of the armed forces in my
spare bedroom; that criminal defendants in federal courts cannot be
denied the right to be represented by a qualified lawyer for whom they
are willing to pay; and that the next in line to succeed to the Presidency
in the event of the President's death is the Vice-President, and not the
Secretary of the Interior, the Congressman from Wyoming, or the
quarterback for the Philadelphia Eagles.
The foregoing is only a small sample of the legal events that are
"easy" constitutional cases. Once free from the lawyer's preoccupation
with close cases-those in which the lawyer qua lawyer is a necessary
actor in the play39 --we begin to comprehend the enormous quantity of
instances in which the legal results are commonly considered obvious.
But why is this? What makes the easy case easy?
In searching for the sources of easiness, it is perhaps best to look
for the sources of hardness, and then define easy cases as those without
any of the characteristics of hard cases. Such definition by exclusion 40
39. Part of the problem, of course, is that legal theory in general is undertaken largely by
those who train lawyers. We will have made considerable strides when we recognize that not only
hard cases, but also all litigation and all lawyers, are in important respects epiphenomenal.
40. On this form of definition, seeJ. AUsTIN, SENSE AND SENSIBILIA 15 (1962); see also Hall,
Excluders, in PHILOSOPHY AND ORDINARY LANGUAGE 67 (C. Caton ed. 1963).
19851 8ESY CASES

is not the only approach, but it seems particularly appropriate because

it is the exception,
41
the hard case, that most commonly commands our
attention.
Prototypically, a vague, ambiguous, or simply opaque linguistic
formulation of the relevant rule generates a hard case. Such a linguis-
tic phenomenon may be caused by questions about the result an-
nounced by a clearly applicable rule, questions about which rule, if
any, is in fact relevant, or both. Regardless of the cause, the result is
the same: one cannot find the answer to a question (which is not the
42
same as a controversy) by a straightforward reading of rules.
To the extent that one can find an answer to a question by a
straightforward reading of rules, other factors may make a case hard.
A case that seems linguistically easy may be hard if the result an-
nounced by the language is inconsistent with the "purpose" 43 of the
rule. In such cases the tension between the plain meaning of the words
and the reason for using those words creates a hard case, in much the
same way that linguistic imprecision creates a hard case.
Even if a rule seems plainly applicable, and even if that applica-
tion is consistent with the purpose behind a rule, it may be that two or
more rules, dictating different results, will be applicable. If one rule
suggests answer A/to the question, and another suggests answer B, then
it is as if no answer had been provided. In the calculus of rules, too
many rules are no better than none at all.
Finally, and perhaps most importantly, there may be only one rel-
evant rule, it may be quite straightforwardly applicable, and its appli-
cation would be consistent with its purpose. Yet it may still be morally,
socially, or politically hard, however, in the sense of hardto swallow.
This seems to be the sense in which some of Dworkin's examples are
hard cases, for example. In a narrow "legal" sense, both Riggs v.
Palmer' and Henningsen v. Bloomfield Motors,Inc.4 5 were just the op-

41. In the following discussion regarding the different varieties of hard and easy cases, I
have profited greatly from the comments of Michael Moore.
42. I include in this category of hard cases those cases in which there is no law whatsoever,
but the cases are still for some reason before a court for decision. Although such a situation is
theoretically possible, it is practically unlikely, given the pervasiveness of contemporary legal
norms. Cf.Dworkin, No RtghtAnswerZ in LAW, MORALITY,AND SOCIETY: ESSAYS IN HONOUR
OF H.L.A. HART 58, 83-84 (P.M.S. Hacker & J. Raz eds. 1977) (referring to "density" of available
materials).
43. In this context, the statement in the text is neutral on the question of whether original
intent of the drafter of the rule is dispositive, probative, or irrelevant in determining the purpose
of a rule. See generally Schauer, supra note 15, at 804-12.
44. 115 N.Y. 506, 22 N.E. 188 (1889), discussedin R. DwoRKIN, supra note 35, at 23-45.
 SOUTHEAT CALIFORNIA LAW REVIEW [Vol. 58:399

posite of hard cases. In these cases, however, the results dictated by

consultation of the straightforward "legal" materials were morally un-
comfortable, thus leading the courts to look beyond the reporters for a
rule of decision.4 6
There may very well be other sources of hardness, but this sample
seems sufficiently large. With these types of hard cases in mind, we can
tentatively define an easy case as one having none of these characteris-
tics of hardness, one in which a clearly applicable rule noncontrover-
sially generates an answer to the question at hand, and one in which
the answer so generated is consistent both with the purpose behind the
rule and with the social, political, and moral climate in which the ques-
tion is answered.
There is clearly more involved thaan merely describing an easy
case. Perhaps easy cases are like unicorns, quite capable of definition
and description, but not to be found in the real world. Thus, my list of
seemingly easy cases purported to fill this argumentative gap, to show
that easy cases not only can be imagined, but in fact exist if we only
know where to look. And, as should be apparent from the particular
examples offered, my thesis here is that language is a significant and
often underappreciated factor in the production of easy cases. I am not
claiming that only language can generate easy cases. Various other
legal, cultural, and historical phenomena can create those shared un-
derstandings that will clarify a linguistically vague regulation, statute,
or constitutional provision. And, as the foregoing taxonomy of hard
cases was designed to demonstrate, language alone is insufficient to
generate an easy case. Neither of these qualifications, however, is in-
consistent with my central claim that language is significantly impor-
tant in producing easy cases-that language can and frequently does
speak with a sufficiently clear voice such that linguistically articulated
norms themselves leave little doubt as to which results are consistent
with that command.
One way of supporting the claim that language is important in
producing easy cases is to engage in an extended and most likely in-
comprehensible discussion of numerous theories of meaning, attempt-
ing to demonstrate by some collage of philosophical and behavioral

45. 32 NJ. 358, 161 A.2d 69 (1960), discussed in R. DWORKIN, supra note 35, at 23-45.
46. In terms of Dworkin's theory, there seems an important distinction between Riggs and
Henningsen. In both cases what had previously been considered a settled rule of law was rejected
by reference to a principle. In Riggs the principle could be gleaned from various legal sources,
and the decision thus does not necessarily support a complete rejection of the underlying premises
of positivism. Henningsen,however, arguably involves the court's use of a principle not found in
1985] EASY CASES

arguments the way in which the use of certain artificially created sym-
bols can and does enable us to communicate with each other. In this
context, however, and indeed in most others, such an excursus seems to
ignore the most significant piece of evidence supporting a claim about
meaning, which is that even the discussion of meaning would take
place in English. The discussion itself would thus irrefutably prove the
very hypothesis at issue, just as this Article is right now doing the same
thing.
When Wittgenstein remarked that "[l]anguage must speak for it-
self,"4 7 he was not claiming that language existed in a vacuum, or that
meaning could be dissociated from context. Rather, he was pointing
out that the ability of language to function ought to be self-evident, and
that the inability to explain all or even any of the sources of this phe-
nomenon does not detract from the conclusion that language does
function.4 8 Thus, to demonstrate that language works with a typical-
looking argument would be possible only because of the conclusion of
that very argument. If language didn't "work," the world would be so
different from the world in which we live as to be beyond both descrip-
tion and comprehension. Regardless of how understandable this Arti-
cle may be, it is certainly more understandable to this audience than it
would be if it were written in Hungarian, in Chinese, or in semaphore
signals. Whether our ability to understand each other in language is
biological, behavioral, sociological, or some49combination of these is less
important than the fact that we can do it.

legal materials to overturn what appeared to be a settled legal rule. That this can occur presents
positivism with an almost unanswerable challenge.
47. L. WITTENSTEIN, PHILOSOPHicAL GRAMMAR 40 (1974).
48. See J. SEARLE, SPEECH AcTs 3 (1969). See also Searle, The Word Turned Upside Down,
30 N.Y. REv. BooKs, no. 16, at 74, 78 (October 27, 1983) ("The only 'foundation'. . . that lan-
guage has or needs is that people are biologically, psychologically, and socially constituted so that
they succeed in using it to state truths, to give and obey orders, to express their feelings and
attitudes, to thank, apologize, warn, congratulate, etc.").
49. This style of argument, however well grounded in some strands of contemporary philos-
ophy, troubles some of my commentators, particularly Professors Nickel and Levinson. Many of
my disagreements with Professor Levinson are encapsulated in his statement that "It]here is much
that rings true about Schauer's paper;, the problem I have with it is its status as a work of theory."
Levinson, What Do Lawyers Know (And Wat Do They Do with Knowledge)? Comments on
Schauer and Moore, 58 S.CAL. L. REV. 441 (1985). If I can point out to or remind people of
important truths that they have ignored to their detriment, I will be satisfied, regardless of whether
the enterprise is considered "a work of theory." This distinction in how we view our missions is
even more apparent when he says that "[t]he relevant problem is whether or not one can develop a
theory that genuinely explains how communication takes place. ... All sorts of occurrences,
ranging from communicating ideas to throwing a curve ball, do not require high theoretical self-
consciousness for their execution." Id at 442-43 (emphasis in original). To put it bluntly, devel-
oping a theory of communication is not the problem that compels my attention. The problem that
 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 58:399

This is not meant to be the end of an argument, but only the be-
ginning of one. Because law operates with language, understanding the
way in which law works requires starting with the proposition that lan-
guage works. In many instances, some of which I will deal with pres-
ently, it may be important to know why or how language works. In
many other instances, however, it is sufficient to do less thinking and
more looking,50 and at least take certain observable facts about lan-
guage as a possible starting point in the analysis.
It is thus worthwhile to note that the Constitution is, even if noth-
ing else, a use of language. By virtue of being able to speak the English
language, we can differentiate between the Constitution and a nursery
rhyme, between the Constitution and a novel, and between the Consti-
tution and the Communist Manifesto. Let us construct a simple
thought experiment involving a person who is fluent in English (even
the English of 1984, and not necessarily the English of 1787 or 1868),
but who knows nothing of the history, politics, law, or culture of the
United States. If we were to show this person a copy of the Constitu-
tion, would that person glean from that collection of marks on a piece
of paper alone at least some rudimentary idea of how this government
works and of what types of relationships exist between the central gov-
emnment and the states, between the different branches of government,
and between individuals and government? Although the understand-
ing would be primitive and significant mistakes would be made, it still
seems apparent that the answer to the question would be, "Yes." How-
ever sketchy and distorted the understanding might be, it would still
exceed the understanding produced by a document written in a lan-
guage not understood by our hypothetical reader, and surpass as well
the understanding gained from no information at all.
This general intelligibility of language enables us to understand
immediately the mandate of numerous constitutional provisions with-
out recourse to precedent, original intent, or any of the other standard
interpretive supplements. We need not depart from the text to deter-
mine the rudiments of how a bill becomes a law, the age and other

compels my attention is how to deal with the fact that communication can and does occur in
various different ways. Although in this mission it might be important to have a theory of how
communication takes place, it is by no means logically necessary. After all, there are people who
can explain what makes a curve ball curve, but that doesn't mean that they can hit one. And our
ability to exist in the world is not significantly contingent upon being able to explain the world's
creation. So too with our ability to deal with and exist in the world of language.
50. See L. WrrToENSTEIN, PHILOSOPHICAL INVESTIGATIONS 1 66, at 31e (1958) ("Don't
think, but look"').
1985] EASY CASES

qualifications for various federal offices, the permissible and impermis-

sible limits on the franchise, the number of terms that may be served by
the President, the basic procedure for amending the Constitution, the
mechanics of admitting a new state, the number of witnesses necessary
in a trial for treason, and the permissibility of calling the defendant as a
prosecution witness in a federal criminal case.
In some of these and other instances, some noncontroversial tech-
nical knowledge may be necessary for understanding. In order to ap-
preciate the clarity of some of the requirements of the fourth, fifth, and
sixth amendments, for example, one must understand what a trial is,
how it is conducted, and so on. In order to understand some of the
structural provisions, it is useful to have at least some preconstitutional
understanding of what a state is. These shared background under-
standings, however, virtually a part of understanding this language, do
not make the notion of a clear meaning implausible." Words them-
selves are nothing other than marks or noises, transformed into vehicles
for communication by virtue of those rules of language that make it
possible for the listener to understand the speaker in most cases. But
these rules are not contained in a set of maroon volumes, the linguistic
equivalent to the United States Code. These rules are made and con-
tinuously remade by the society that uses the language, and different
rules may prevail in different segments of that society at different times.
Thus, language cannot be divorced from its context, because
meanings become clear if and only if certain understandings are pre-
supposed. Language cannot and does not transcend completely the
culture of which it is a part. It is not something that has been delivered
packaged, assembled, and ready-to-use to a previously nonlinguistic
culture. Language and society are part and parcel of each other; under-
standing a language, even at its clearest, requires some understanding
of the society that has generated it.
But what does this tell us? Certainly not that the notion of plain
meaning is worthless, or that questions of interpreting language col-
lapse completely into questions about a culture. That a rosebush
springs from and cannot exist without earth, sun, and water does not
mean that the notion of a rosebush is not distinguishable from the con-
cepts earth, sun, and water. Similarly, that language requires context
does not mean that language is context. Language operates signifi-
cantly because of and as a system of rules that enable people within a

51. See generally Searle, LiteralMeaning,in EXPRESSION AND MEANING: STUDIES IN THE
THEORY OF SPEECH ACTS 117 (1979).
 SOUTHERN CALIFORNIA LAWREVIEW [Vol. 58:399

shared context to understand each other. At times these rules may be

vague, and thus may produce hard cases, but at other times the rules
can and do operate to produce the very kinds of "easy" cases I have
been describing.

IV.
The conventional response to the foregoing argument is what I call
"the argument from weird cases." This response provides an unclear
application of any example of linguistic clarity, and is a standard, if
confused, weapon in the lawyer's argumentative arsenal. For example,
I have claimed earlier in this Article52 that the twenty-second amend-
ment's limitation on the President to two terms in office is quite clear.
One can, however, construct a "weird case" in which the clarity dis-
solves. Someone who has "acted as President" for more than two years
is deemed to have served a full term; yet what of someone who has
served as President for 720 days after the death of the incumbent, but
who had previously been acting President for twelve nonconsecutive
days during which the then-President was abroad on vacation? Or, in
response to any number of provisions relating to years and dates, it is
possible to imagine an intervening change in the calendar. 53 Ever since
Macbeth mistakenly relied on the linguistic precision of the witches'
prophesy, 54 people have been able to construct weird and fanciful in-
stances in which even the clearest language breaks down.
The easy answer to the argument from weird cases is the observa-
tion that the weird hypothetical cases are wildly counterfactual. The
calendar is unlikely to be changed, Presidents are unlikely to drop dead
at the stroke of midnight precisely halfway into their terms, and people
who are born while crossing the International Date Line, or on Febru-
ary 29, are unlikely to ascend to offices for which the inauguration day
is the disputed day in the year of their minimum eligibility.
This easy answer would be quite appealing but for the fact that
real life is often every bit as counterfactual as the wildest imaginings of
the most creative, imaginative, or demented law professor. The defini-
52. See supra, first paragraph of Part III.
53. See Levinson, supranote 18, at 382 n.33; see also Easterbrook, supra note 18, at 536. It
would be misleading, however, to suggest that Professor Easterbrook is one of my "targets." Id at
533 n.2. Professor Levinson's perspective is more closely paralleled in Tushnet, Following the
Rules Laid Dowr" A Critique of Interpreivism and Neutral Princples,96 HARV. L. REV. 781
(1983).
54. W. SHAKESPEARE, Macbeth, Act IV, scene I, in THE COMPLETE WORKS (G. Harrison, ed.
1948).
19851 EASY CASES

tion of "adjournment" for determining whether a pocket veto is suffi-

cient, 5 the question of whether rescissions are to be counted for
purposes of ratification of constitutional amendments,-6 and the ques-
tion of whether a living organism is an "invention"-57 are all real in-
stances of the unforeseen and unimaginable becoming reality.
Although it is surely fun to make up weird cases, such an exercise is
hardly necessary to demonstrate that no constitutional provision can be
presumed to be so unequivocal as to preclude any possibility of a dis-
puted application.
This observation is not merely about law, but about language in
general. Although constitutional theorists tend to use (or misuse) the
term "open texture" as no more than a synonym for "vagueness," it has
a different technical, philosophical meaning. When used in the techni-
cal sense, "open texture" refers to the unavoidable possibility that some
change in the world or in our knowledge of the world might make the
most precise terms vague with respect to that unforeseen instance. 8
Open texture is not vagueness, which is always eliminable, but is rather
the possibility of future vagueness, which is not eliminable. For exam-
ple, although there is no doubt now about what does and what does not
count as a "goldfinch," an encounter with a bird that was like a gold-
finch in every respect save that it exploded before our eyes would then
cause us to be uncertain about whether the exploding creature was or
was not a goldfinch. 9 Our uncertainty does not arise from the fact
that, on more careful factual investigation, we could have made a con-
clusive determination. Nor is it that we should have or could have
been more precise in our definition of "goldfinch." Rather, something
we could not possibly have imagined is for that very reason outside the

55. Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974). See generally Kennedy, Congress,
the President,and the Pocket Veto, 63 VA. L. REv. 355 (1977).
56. Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), stayea 455 U.S. 918, vacatedas
moot sub nom NOW, Inc. v. Idaho, 459 U.S. 809 (1982). See generally Vieira, The Equal Rights
Amendment: Rescission, Extension, and Justiciability,1981 S.ILL. L. REV. 1.
57. Diamond v. Chakrabarty, 447 U.S. 303 (1980).
58. The concept of "open texture" was first discussed extensively and named (porositit,in
German) by Wittgenstein's disciple, Friedrich Waismann. Waismann, Ver#7ability, in I ESSAYS
ON Logic AND LANGUAGE 117 (1951). The principle is adapted to law in H.L.A. HART, THE
CONCEPT OF LAW 121-32 (1961). My rather strident objections to the misuse of this term in con-
temporary constitutional theory are not intended to be a pedantic display of philosophical erudi-
tion (although I would not object too much to such a side effect). Rather, if "open texture" is to be
used as a synonym for "vagueness" there is a real risk of losing the concept of open texture in the
way in which it is very importantly different from vagueness.
59. J.L. AUSTIN, Other Minds,in PHILOSOPHICAL PAPERS 44, 56 (1961).
 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 58:399

scope of what we had hitherto thought to be a precise and exhaustive

definition of a term.
I am thus quite willing to concede that it is impossible to have an
entirely clear constitutional clause, for the same reason that it is impos-
sible to have an absolutely airtight legal provision of any kind, or an
absolutely airtight definition in any field. This is merely a recasting of
the well-known message that all terms and all laws have fringe as well
as core applications. 60 That there are fringe meanings of words, or
fringe applications of laws, for which one can make a reasonable argu-
ment for either inclusion or exclusion, does not mean that there are no
core cases in which an argument on one side would be almost univer-
sally agreed to be compelling, and an argument on the other side would
be almost universally agreed to be specious. That I am unsure whether
rafts and floating motorized automobiles are "boats" does not dispel
my confidence that rowboats and dories most clearly are boats, and
that steam locomotives, hamburgers, and elephants equally clearly are
not.
This is not to deny that determining the contents of the core, the
fringe, and what is wholly outside are contextually and culturally con-
tingent. I can imagine a world in which "elephant" is a fringe (or core)
example of a boat, and I can imagine a set of circumstances in this
world in which a floating hamburger might legitimately present us with
a definitional problem vis-A-vis the class "boats." The mere possibility
of such circumstances does not eliminate our ability to make sense out
of the words as standardly applied, however. If it did, we would have
no way of communicating with each other.
The lesson of open texture, then, is that every use of language is
potentially vague, and the constructor of a weird case thus does no
more than provide an example of the indisputable proposition that lan-
guage is not totally precise. The precision of language is necessarily
limited by the lack of omniscience of human beings, and thus any use
of language is bounded by the limitations of human foresight. The non
sequitur,however, is the move from the proposition that language is not
perfectly precise to the proposition that language is useless. And this
applies to terms without rigid boundaries as well as to those terms that,

60. See Hart, Scandinavian Realism 17 CAMBRIDGE L.L 233, 239 (1959); Williams, Lan-
uage andtheLaw-I, 61 LAW Q. REv. 179 (1945); see generalyM. BLACK, Reasoning with Loose
Concepts, in MARGINS OF PRECISION: ESSAYS IN LOGIC AND LANGUAGE 1 (1970); . SCHEFFLER,
BEYOND THE LETrER: A PHILOSOPHICAL INQUIRY INTO AMBIGUITY, VAGUENESS, AND META-
PHOR IN LANGUAGE (1979).
1985] F9ASY CASES

from what we now know about the world, seem to be quite precise.
The existence of potentially or actually vague applications of language
no more compels a conclusion that language is useless than the exist-
ence of a debatably bald man renders useless the observations that Yul
Brynner is clearly bald and Ronald Reagan is clearly not, or than the
existence of dusk renders useless the distinction between daytime and
nighttime.
Although linguistic nihilism seems scarcely comprehensible as a
general statement about language, nihilistic tendencies have had a sur-
prising vitality in legal and constitutional theory. 61 The attractions of
nihilism seem to be largely attributable, however, to a crabbed view of
the legal world, a view that focuses almost exclusively on those hard
cases that wind up in court. If we focus only on the marginal cases,
only on the cases that a screening process selects largely because of
their very closeness, it should come as no surprise that we would have a
skeptical view of the power of language to draw distinctions. The cases
that wind up in court are not there solely because they lie at the edge of
linguistic distinctions, but this is at least a significant factor. Thus the
cases that are in court are hardly a representative sample of the effects
of legal language. But if we focus instead on easy as well as hard cases,
and thus take into our comprehension the full legal world, we see that
the cases at the margin are but a small percentage of the full domain of
legal events; the bulk of the remaining cases are those in which we can
answer questions by consulting the articulated norm. The argument
from weird cases refutes this conclusion only if we imagine that lan-
guage, when not totally precise, is worthless. Since language never is or
can be totally precise, yet it cannot plausibly be claimed to be always
worthless, the argument from weird cases says almost nothing at all.

V.

The argument from weird cases is not the only objection to the
claim that language operates as a significant factor in channeling be-
havior through law. Juridical skeptics also point out that language,
even when clear, does not control behavior, commonly referring to in-
stances in which clear language is ignored by courts or by others sup-

61. My contemporary betes noiresare exemplified by Levinson, supranote 18, and Tushnet,
supra note 53, but strains of nihilism can be found in most varieties of Realism, whether tradi-
tional or more contemporary.
 SOUTHERN CALIFORNIA LAWREVIEW [Vol. 58:399

posedly guided by that language. 62 For example, Rule 803(24) of the

Federal Rules of Evidence explicitly provides that exceptions to the
hearsay rule beyond those enumerated may be recognized only if spe-
cific notice is given in advance to the adverse party. 63 Yet federal
courts regularly dispense with the requirement of notice, relying on the
purpose of the rule to discard what is, on its face, a clear requirement
containing no exceptions.' Constitutional law displays at times this
same phenomenon, the eleventh amendment being perhaps the most
prominent example. Nothing in the language of that amendment could
even remotely be construed to bar the use of the federal courts by citi-
zens suing their own states, since the amendment quite clearly refers to
"another State." The Supreme Court has nevertheless ignored this
seemingly plain linguistic mandate and has interpreted the eleventh
amendment to bar citizens from suing their own states in the federal
65
courts.

Such examples lend strong support to a Realist argument that lan-

guage is no constraint if it can be so easily disregarded even in clear
cases. But this says no more than that the final decision in a case is
made by a judge, and not by the words themselves. Concluding that
language alone does not unalterably produce results consistent with the
meaning of that language is exactly analagous to concluding that stop
signs do not unalterably stop cars. 66 People and brakes, rather than
stop signs, stop cars, and there is nothing about the nature of a stop sign
that allows it to prevail over human inattention or inoperative brakes.
Yet surely the presence of stop signs at intersections drastically in-
creases the incidence of cars stopping at those intersections, and that
people occasionally do not stop at stop signs or that no single person
can be made to stop at the sign does not alter this conclusion.
Just as stop signs drastically increase the incidence of cars stop-
ping, most rules drastically increase the incidence of behavior in con-
formity with their mandates. In a particularly extreme situation, I

62. See, ag., Kairys, LegalReasoning,in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE
11 (D. Kairys ed. 1982); Tushnet, supra note 16.
63. FED. R. EVID. 803(24). 1 am grateful to Richard Lempert for suggesting this example.
64. E.g., Furtado v. Bishop, 604 F.2d 80 (1st Cir. 1979); United States v. Bailey, 581 F.2d 341
(3d Cir. 1978).
65. Monaco v. Mississippi, 292 U.S. 313 (1934); Hans v. Louisiana, 134 U.S. 1 (1890). The
basis for Hansand its current vitality is still disputed. See Pennhurst State School and Hosp. v.
Halderman, 104 S. Ct. 900, 906 (1984) (Brennan, J., dissenting); Yeomans v. Kentucky, 423 U.S.
983, 984 (1975) (Brennan, J., dissenting).
66. See Rendleman, The InadequateRemedy at Law Prerequisiteforan Injunction, 33 U.
FLA. L. REV. 346, 357 (1981).
1985] EASY CASES

cannot say with certainty that thirty-three year olds might not be al-
lowed to run for President, that Presidents might not be permitted to
serve a third term, that citizens could not be forced to provide bed-
rooms in their homes for members of the armed forces, or that the Con-
stitution might not be deemed amended despite ratification of a
proposed amendment by less than three-fourths of the states. But the
very fact that the foregoing sentence makes sense only by including the
qualification of "particularly extreme situation" precisely demonstrates
the point. The language of the Constitution, by its terms alone, creates
a presumption, or hurdle, and it requires something extraordinary to
overcome the presumption, to clear the hurdle. 67 The language chan-
nels behavior, and requires special justification before we can leave
those channels. It takes a better reason to disregard the language than
to follow it, and this requirement of a better reason seems to be the best
explanation for the effect of language on behavior, including judicial
behavior.
The mistake commonly made in this context is the same as that
made with the argument from weird cases. If we have unrealistic stan-
dards of what language is supposed to do, then it is easy to fall into the
abyss of nihilistic thinking when those unrealistic expectations are not
met. Yet it is not only unrealistic, but quite simply wrong, to expect
from language that it will in all cases be certain, precise, verifiable, and
unqualifiedly controlling. If, however, we expect of language no more
than what it is, no more than a significant influence or factor, then we
will be neither surprised nor disappointed when we discover that lan-
guage is not infinitely powerful.
That language does not serve as an immovable barrier to decisions
that contravene its meaning, such as those in the area of the eleventh
amendment, then, does not entail or even suggest the conclusion that
language does not serve its function in the overwhelming proportion of
instances. The very facts that the language stands there to be contra-
dicted, and that the contradiction requires a justification in a way that
following the language does not, make avoidance of the language sub-
stantially more difficult than following the language.
Norms embodied in language thus make it at least more likely that

67. This view of language parallels the view of rights as prima facie, a view with which I am
in substantial sympathy. See F. SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 3-14, 89-92,
208 n.7, 215 n.1 (1982); Schauer, Can Rights Be Abused, 31 PHIL. Q. 225 (1981). See generally
Martin & Nickel, Recent Work on the Concept of Rights, 17 AM. PHIL. Q. 165 (1980); Thomson,
Some Ruminationson Rights, 19 AIz. L. REv. 45 (1977).
 SOUTHERMr CALIFORNiA LAW REVIEW [Vol. 58:399

those norms will be followed than would be the case without the lan-
guage. If language serves this purpose, it influences at least some re-
suits. In some cases exigent factors may outweigh the pull of
language.68 But language still pulls, and thus channels thinking,
thereby providing the dispositive factor in all but that minority of cases
in which the exigent factors are present. The argument from "anti-
linguistic results," like the argument from weird cases, therefore tells
against the power of language only if it can be shown that antilinguistic
results predominate, or at least are normal. Once we look at easy as
well as hard cases, however, once we look at law both outside and
within the courthouse, it becomes clear that antilinguistic results oc-
cupy but a miniscule fraction of the instances in which the language is
applied. By recognizing that following language is a law-applying and
law-interpreting act, we can sensibly reject the claim that law is not
importantly a function of the power of language.

VI.

Is there anything that all of this can tell us about hard cases, even
if it is conceded that there are vast numbers of easy cases that never
even get close to the courthouse? The answer is "yes," but to see why
we must first consider yet another challenge to the view that most legal
rules are sufficiently determinate to provide real guidance. I do not
want to repeat here what I have said earlier about the truly easy cases,
although the same points might be applicable. I want to look at this
challenge only on its grounds--as an attack on the usefulness of legal
rules in the context of the kinds of cases that get at least as far as the
lawyer's office.
This particular challenge takes the form of attempting to show that
no set of articulated norms can, in the types of cases that come before
the courts, dictate one and only one correct result. The point becomes
even more appealing once we acknowledge that we are dealing not
merely with one applicable rule, but with a multiplicity of potentially
applicable statutes, precedents, and other legal rules and principles that
provide the authority for any result the judge desires to reach on non-
"legal" grounds.

68. See supra note 67. Thus, the fact that a compelling interest may justify classification on
the basis of race, Loving v. Virginia, 388 U.S. 1 (1967); Korematsu v. United States, 323 U.S. 214
(1944), does not mean that the compelling interest level of scrutiny does not serve to invalidate
forms of classification that would be permissible under a lower level of scrutiny. E.g., Palmore v.
Sidoti, 104 S. Ct. 1879 (1984).
1985] F1SY C4SES

This attack is virtually identical to many of the claims of the

American Realists, and the contemporary flurry of interest in Realism
may indicate that it is now Realism, rather than anything against which
Realism is reacting, that constitutes the dominant American legal ide-
ology. The substance of the challenge can best be explained by refer-
ence to an example presented in a recent attempt by Mark Tushnet to
reaffirm Realism.69 Tushnet offers the following puzzle: "Which pair
of numbers comes next in the series 1,3,5,7? (a) 9,11; (b) 11,13;
(c) 25,18." Although the quick answer seems to be "a," Tushnet dem- 70
onstrates that all three answers can be justified as being "correct."
And, he argues, if this phenomenon of multiple correct results can exist
in so exact a discipline as mathematics, then surely it is folly to claim
that there can be anything other than multiple correct results in law,
especially where the density of available legal materials provides a
wealth of possible justifications for divergent results.7
But let us look at this example from a different perspective, by
adding a number of other choices to Tushnet's multiple choice ques-
tion: (d) 9,11,13; (e) a,r; (f) a,wq; (g) 1637,1389, (1h) .000000000027,
3.415926535; (i) Reggie Jackson, Babe Ruth; (j) Cleveland, Newark;
(k) none of the above; (1) all of the above. Now, although it may be
true that all of (a), (b), and (c) are correct, it is equally true that (e), (f),
(g), (h), (i), (j), (k), and (1)are clearly incorrect, at least in this world.72
Thus, it is a major leap from saying that there is no uniquely correct
answer to saying that no answer or set of answers is in any way prefera-
ble to any other answer that might possibly be imagined. The very
nature of the question, formulated in linguistic and numerical terms,
drastically reduces the field of possible solutions, even if it never
reduces that field to one.
This limiting function of language provides the crucial link be-
tween the easy case and the hard case; from this perspective even the
69. Tushnet, supra note 53.
70. Id at 821-24.
71. Of course, Tushnet does not claim that all of the results are equally correct in a broader
sense, because to him correctness is a function of the nature of the enterprise, in this case the
enterprise of test-giving by a particular test-giver. He arrives at this position, however, only by
first showing that the linguistic instructions do not provide a result; it is the latter claim that is my
primary concern here.
72. Of course, one can imagine circumstances under which different results might be in some
sense "correct." I can imagine worlds in which the noises or marks "square!' represent a figure
with five sides. I also can imagine that some people in this world might use the noises or marks
"square" to denote a figure with five sides. But squares still have four and not five sides, which I
can say because I understand the conventions of this language as used in thiscontext, the context
in which this culture developed and uses this language.
 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 58:399

hardest case has its easy side, which is the range of answers excludedby
previously articulated rules. Despite all the insights that it provides,
legal theory has for too long operated under the distorting metaphor of
the core and the fringe.7 3 This metaphor suggests that we start at the
core, establish the identity of the settled core, and then move our in-
quiry out to the fringes. If it can be shown, however, that there is no
settled core, then this metaphor as a picture of both language and law
breaks down. Assuming that there is something at the core to be
clearly verified, the absence of any verifiable core content to a term or a
rule will provide the impetus for assuming that the rule performs no
significant function.
But let us paint a different picture. Instead of starting at the core
and working out, we can start with the total universe and work in. In-
stead of looking at language and rules as verifying some segment of the
74
world, let us look at them as falsifying some segment of the world.
Instead of looking at rules as giving us right answers, let us look at
rules as excluding wrong answers. We can then see legal language and
rules as shifting the focus of adjudication, even in hard cases. We are
now in search of wrong answers, and the legal language and rules serve
to identify those wrong answers. 75 Again, this exclusion of wrong an-
swers is not absolute, but only presumptive.7 6 Exigent circumstances,
or particularly strong reasons of any kind, may permit the inclusion of
that which the previously articulated rules exclude. Nevertheless, the
existing articulation of rules, even if only presumptive, guides us away
from some answers that would otherwise be included. By identifying
and thus presumptively excluding those answers that are unacceptable,
the rules embodied in language decrease the size of the field of poten-
tially right answers. Even if the size of the field never reduces to one
uniquely correct answer, the articulated rules have played a significant
role in eliminating an enormous number of answers that might other-
wise have been acceptable. This presumptive exclusion thus give us, in
most instances, a more manageable range of choices with which to
deal.

73. See supra note 60.

74. I draw my inspiration, but not this application, from the work of Karl Popper. See K.
POPPER, CONJECTURES AND REFUTATIONS: THE GROWTH OF SCIENTIFIC KNOWLEDGE (1963); K.
POPPER, THE LOGIC OF SCIENTIFIC DISCOVERY (1959).
75. This view of law is implicit in Kelsen's use of the metaphor of a frame without a picture.
H. KELSEN, PURE THEORY OF LAW 245 (2d ed. 1967).
76. See supra text accompanying notes 62-67.
1985] EASY CASES

Those who refuse to relinquish the lawyer's fixation with hard

cases that actually wind up in court may respond to the foregoing argu-
ment that linguistic rules narrow a decisionmaker's choice with more of
a yawn than an objection. Yet it is important not to underestimate the
extent to which articulated rules may shape the agenda of adjudication.
Results that are plainly inconsistent with the relevant language, such as
total abolition of the warrant requirement, intentional imposition of
cruel and unusual punishments prescisely because of thier cruelty, and
denying the vote to women, blacks, and nineteen year-olds solely be-
cause of gender, race, and age are highly unlikely to even be suggested
in court. In some cases it may be that the course of litigation and the
course of political, legal, and cultural development would have been
the same even if the rules had not existed, and perhaps even if the rules
had been just the opposite. Such possibilities seem to be aberrational,
however, and are most likely restricted to a few instances of major so-
cial upheaval. Much more often an argument that might seem cultur-
ally and logically plausible, such as an argument that criminal
defendants can be called by the prosecution in the service of the search
for truth, or an argument that a country composed predominantly of
Christians ought to be able to establish Jesus Christ as its national sym-
bol, is presumptively foreclosed by the existence of an articulated rule
making such an argument impermissible.7 7
The language of an articulated rule, including the language of an
authoritative text containing such rules, establishes boundaries for per-
' 78
missible argument by excluding arguments that are "out of bounds.
These boundaries are difficult to cross, and thus strongly influence the
agenda of litigation, both in terms of the types of cases initiated and the
types of arguments made in cases that wind up in court. Although it is
tempting to discount the importance of language because it may not
provide clear answers to problems arising within the boundaries, we
should not underestimate the importance of language in establishing
those boundaries, and in so doing also indicating which cases are hard
and which are easy. Law is not static, and its direction can be influ-
enced. To the extent that society wishes to influence the direction of

77. I use these examples precisely because these conclusions do no particular injustice to
contemporary American views, except insofar as short-term views are inconsistent with longer-
term values. Creating a method of preserving long-term values in the face of contrary short-term
pressures is largely what the Constitution, and indeed much of law, is all about, however. The
Constitution and law could support these arguments only if behavior can in fact be guided by rule.
78. The sports metaphor suggests an analogy with sports violence. Why is it that certain
impermissible conduct in hockey is penalized by five minutes in the penalty box, while other
impermissible conduct might get the offender several months in a real jail? Some things might be
 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 58:399

law in a conscious fashion, it will do so with language. If nothing

more, knowing how we got to where we are is important in telling us
how to get to where we now wish to go.

VII.
The perspective described above views linguistically articulated
rules as excluding wrong answers rather than pointing to right ones.
From this perspective, there is no longer any justification to view the
specific and the general clauses in the Constitution as fundamentally
different in kind.79 Since no clause can generate a uniquely correct
answer, at least in the abstract rather than in the context of a specific
question, 0 the best view of the specific clauses is that they are merely
less vague than the general clauses. The language of a clause, whether
seemingly general or seemingly specific, establishes a boundary, or a
frame,"' albeit a frame with fuzzy edges. Even though the language
itself does not tell us what goes within the frame, it does tell us when
we have gone outside it.
It is best to view the role of language in setting the size of the
frame as presumptive rather than absolute. Factors other than the lan-
guage of the text, or the language of a specifically articulated rule in a
case or series of cases, often influence the size and shape of the frame of
permissible argument. The language of the text itself is still, however,
commonly not only the starting point, but also a constant check long
after leaving the starting point. When we look at an uninterpreted
clause (in the sense of a series of authoritative judicial interpretations),
we commonly focus quite closely on the text. Even in those cases in
which an established body of precedent exists, reference to the text is
never considered illegitimate.
The language of the text, therefore, remains perhaps the most sig-
nificant factor in setting the size of the frame. Those clauses that look
quite specific are those where the frame is quite small, and thus the
range of permissible alternatives is equivalently small. Those clauses
wrong but still remain within the enterprise, but others simply exceed the bounds of the enterprise.
So too with the distinction between the illegitimate and the simply incorrect.
79. See Professor Monaghan's discussion of "The Two-Clause Theory," Monaghan, Our
Perfect Constitution, 56 N.Y.U. L. REv. 353, 361-367 (1981). Monaghan rejects the two-clause
theory, but for reasons that are significantly different from mine.
80. Implicit in my view must be the conclusion that one could always formulate a specific
question in answer to which the text would prefer one answer to another. An example is the
question, "Is the federal government permitted to establish Presbyterianism as the official religion
of the United States?"
81. See supra note 75 and accompanying text.
1985] EASY CASES

that look much more general are those with a substantially larger
frame, giving a much wider range of permissible alternatives. This,
however, is a continuum and not a dichotomy. Those clauses that seem
specific differ from those that seem general in that the former exclude
as wrong a larger number of answers than do the latter. For example, a
more specific equal protection clause might prohibit its application to
discrimination on the basis of gender, alienage, or illegitimacy as im-
permissible interpretations. None of these interpretations can now be
deemed beyond the linguistic boundaries of the actual language of the
clause. A more general twenty-second amendment might enlarge the
number of permissible alternatives beyond those currently permitted
by the language, for example, by permitting a plausible argument that
Congress could permit a President's election to a third term.
The foregoing goes a long way towards explaining my claim that
adjudication of the open ended clauses of the Constitution generally is
and presumptively should be "horizontally clause-bound."82 However
little the text might answer the question of what should be done within
the frames established by the various constitutional clauses, the docu-
ment at least provides a series of more or less distinct frames. If we
consider the text to be informative about boundaries, or limits, rather
than about centers, or cores, then the text appears far less irrelevant
than is commonly assumed. The text presumptively constrains us, or
should, from overstepping what are admittedly pretheoretical and al-
most intuitive linguistic bounds, and thus serves as one constraint on
constitutional interpretation.
We can thus view these linguistic frames as telling an interpreter,
for example the Supreme Court, which areas are legitimately within the
province of interpretation, which subjects are properly the business of
the interpretation. An interpretation is legitimate (which is not the
same as correct) only insofar as it purports to interpret some language
of the documenL, and only insofar as the interpretation is within the
boundaries at least suggested by that language.83

82. See Schauer, supra note 15, at 830, where I use the term "horizontally clause-bound" to
refer to a perspective that emphasizes the separateness of the various clauses of the Constitution,
but which places no great constraints on the sources legitimately used to interpret those clauses.
83. Roe v. Wade, 410 U.S. 113 (1973), provides an instructive example. If we assume (and
this is an enormous assumption, to which I shall return in a moment) that Roe cannot plausibly be
squared with the language of the due process clause, then the actual decision in Roe exceeded the
separate boundaries established by the distinct clauses of the Constitution. If Roe had instead
been decided as a sex discrimination case, premised either on the simple fact that only one gender
bears the possibility of pregnancy, or on some more sophisticated theory (see, e.g., Regan, Rewrit-
ing Roe v. Wade, 77 MICH. L. Rav. 1569 (1979)), the decision would have become a legitimate
 SOUTHERAN CALIFORATIA LAWREVIEW [Vol. 58:399

The validity of this thesis depends, of course, on the claim that the
various clauses of the Constitution are indeed relatively distinct. If this
were not the case, then we could make no sense out of the notion of a
horizontally clause-bound Constitution.84 Yet surely the burden of
proving the absence of these boundaries between clauses rests with
those who would deny it. We rarely have difficulty distinguishing
among, for example, free speech claims, establishment clause claims,
equal protection claims, right to counsel claims, tenth amendment
claims, cruel and unusual punishment claims, and so on. Of course it is
possible to postulate cases that will press this contention. For example,
there is still some uncertainty about whether a claim of content dis-
crimination arises under the free speech clause of the first amendment,

interpretation. Regardless of whether that interpretation would have been the best possible, it
would have at least been an interpretation within the textual mandate of the equal protection
clause, which puts the interpreter in the equality business in a way that the document does not put
that same interpreter in the privacy business.
I do not believe that substantive due process (even including mere rationality review) can be
squared with the text of the due process clause read in its entirety (that is, without adding a period
after the word "property"). It is possible, however, that I am wrong and that "due process" might
in fact include some "substance." If I am wrong, then the due process clause has been interpreted
in a way that threatens to make most, if not all, of the remainder of the document superfluous.
Although I would not say that this flows inexorably from anything else I have to say, I would
adopt a principle of interpretation that deals with such problems. That principle would require
that a judge, given a choice among interpretive possibilities, choose the possibility that does not
"drown out" or render superfluous other parts of the document. This principle is, of course, pre-
mised in part on a view of the proper role of judicial review, but it does have a respectable pedi-
gree. See Marbury v. Madison, 5 U.S. (I Cranch) 137 (1803). If applied, this principle would also
support narrow interpretations of both the ninth amendment and the privileges and immunities
clause of the fourteenth amendment.
My conclusions about Roe are also rendered more problematic by the existence of the sub-
stantive due process cases generally (e.g., Meyer v. Nebraska, 262 U.S. 390 (1923); Lochner v. New
York, 198 U.S. 45 (1905)), and the privacy cases in particular (e.g., Griswold v. Connecticut, 381
U.S. 479 (1965)). Given that constitutional meaning is fluid, and given that the decisions of the
Supreme Court are a significant factor in determining that meaning, is the due process clause now
to be interpreted in light of all of these cases? The answer is too complex to be dealt with fully
here, but involves the relationship between three separate issues. First, how authoritative are
Supreme Court decisions vis-A-vis the text? Second, ifin fact an interpretation such as Griswoldis
itself not properly derived from the text, but is authoritative anyway, how much can be built on
this authoritative but erroneous precedent? See Schauer, supranote 15, at 814-21. Finally, do a
series of decisions become illegitimate even if properly derived from previous decisions when they
ultimately loose their mooring with the text? This last question-the question of the cantilevered
interpretation--arguably subsumes the first two, and raises the fundamental question of the rela-
tionship between text and precedent. Because I cannot deal with that issue fully here, let me
simply note in a conclusory fashion that I do not find Griswold or its predecessors sufficiently
entrenched to provide a solid foundation for further construction. Although I do not preclude the
possibility that erroneous decisions may become so entrenched that a sort of adverse possession
principle applies, Griswolddoes not seem to be an instance for application of that principle.
84. See supra note 82.
1985] EASY CASES

or under the equal protection clause of the fourteenth." Yet the very
uncertainty demonstrates that the distinction makes sense.8 6 Moreover,
identification of the occasional fringe case to illustrate that the distinc-
tion does not exist is to lapse into the same fallacy discussed earlier.8 7
Thus, the mere existence of one or a few fringe cases does not dis-
pel the fact that most constitutional clauses appear to be linguistically
distinct, are treated by the courts as distinct, and have generated dis-
tinct bodies of doctrine. The various clauses identify various topics of
analysis, and thus separate areas of doctrine.8 8 This is possible only
because the various clauses of the Constitution, even the most open-
ended ones, have outer limits, albeit fuzzy ones. Although there is a
wide range of alternatives within the notion of an "unreasonable"
search or seizure, it remains quite easy to ascertain that almost all free
speech claims are outside the range of claims allowed by the fourth
amendment. We may be uncertain about what kinds of punishments
are "cruel" or "unusual," but the boundaries of permissible argument
under the eighth amendment do not include claims about the establish-
ment of religion, denial of public employment to aliens, or limitations
imposed by the spending clause of article I.

VIII.
I find that the most appealing visual image for describing the vari-
ous clauses of the Constitution is a series of funnels, lined up next to
each other, but separated by their respective rims. Although the rims
may at times touch or overlap, the funnels remain largely distinct, each
representing one of the areas or topics marked out by the Constitution
for special attention. I am attracted to the funnel image primarily be-
cause it immediately invites inquiry into what we are to pour into the
funnels. Even if my thesis about linguistic separability of various
clauses is accepted, what, if anything, does that thesis say about how to
decide those questions (and cases) that lie within the limits of legiti-
macy. Under my thesis, two mutually exclusive answers to a question

85. See Regan v. Taxation With Representation, 461 U.S. 540 (1983); Anderson v. Cele-
brezze, 460 U.S. 780 (1983); Chicago Police Dep't v. Mosley, 408 U.S. 92 (1972). See generally
Karst, Equality as a CentralPrinciplein the FirstAmendment, 43 U. CHI. L. REv. 20 (1976).
86. That is, one cannot talk about the fuzziness of the line between x and y unless one
presupposes a difference between x andy.
87. See supra Part IV.
88. James Boyd White has suggested to me that it may be more useful to think in terms of
topics for thinking rather than frames or boundaries. Although I agree that looking at the text as
providing a number of topics for further analysis is important, it makes sense only if one presup-
poses that some topics are distinguished from others.
 SOUTHERN CALIFORNIA LW REVIEW [Vol. 58:399

could both quite possibly lie within the boundaries, or frame, and thus
both be legitimate answers to the question. For example, the exact
opposite results in both Regents of the University of California v.
Bakke 9 and MiamiHeraldPublishingCo. v. Tornlo9 could be said to
be equally legitimate interpretations, in the sense that it could be said
that the opposite result in each case furthered the specific value set
forth by the text. But if opposing results can be said to be equally legit-
imate, is there anything, or at least anything I have to say, to suggest
which of two or more equally legitimate outcomes an interpreter, such
as the Supreme Court, should choose? Before answering this question
directly, I must say something about precedent.
Until now I have proceeded as if the text alone provides the
boundaries of its own permissible interpretations. Although I believe
that such an approach is permissible for interpreting a poem, a novel,
or an oil painting, the legal enterprise is fundamentally different. Law
seems almost unique in its use of authoritative interpretations.
Although the authoritative interpretations of legal texts are never re-
garded as equivalently authoritative as the text itself, they are still au-
thoritative in a way that interpretations of novels and oil paintings are
not. One need only note the relative emphasis between texts and inter-
pretations of those texts in law classes and art classes 9 to recognize that
interpretations of the original text (Le. cases) have a special prominence
in law unparalleled by interpretations in other disciplines.
By acknowledging both the doctrine of stare decisis 92 and the au-
thoritative nature of interpretations in law, we can see that interpreta-

89. 438 U.S. 265 (1978).

90. 418 U.S. 241 (1974).
91. Recent legal scholarship, including much of this Symposium, indicates that a latent liter-
ary or art critic lurks within many law teachers. Dealing with cases, we law teachers have an ideal
opportunity to play that role, but most of us squander the opportunity. Instead of seeing what can
be done with a case, we devote our efforts to attackingit. We make snide and dismissive remarks
about cases and their authors, rather than treating a case as the raw material from which theories,
insights, and creative interpretations might be spun. There are, of course, exceptions to this, of
which Harry Kalven's work is most notable. This is clearly the exception, however. Imagine a
course in modem art that started with a study of the fundamental errors committed by Manet,
moved on to a broadscale assault on the Impressionists, Post-Impressionists, and Expressionists,
poked holes in the work of Picasso, Bracque, and Gris, and then closed with a sarcastic attack on
contemporary art from Pollack to Rothko, in the course of which never once praising unquali-
fiedly any painting, and never once saying that any painting or painter was really great. If this
seems odd, and it does to me, then why is almost that exact style so commonplace in dealing with
constitutional law?
92. See general, Maltz, Some Thoughts on the Death ofStare Decisis in ConstitutionalLaw,
1980 Wis. L. REv. 467; Monaghan, Taking Supreme Court Opinions Serious,,39 MD. L. REv. I
1985] EASY CASES

tions change the contours of the frame within which subsequent

interpretations take place. At times the case law may enlarge the size
of the frame beyond the straightforward sense of the text, at times it
may narrow the frame, and at times it may shift the frame. This should
not be surprising: the language with which we are dealing is in part a
technical language, 93 and technical constitutional meaning, although
necessarily related to ordinary meaning, 94 is largely a product of usage
in a particular discipline. Because case law is a significant determinant
of such usage, a Supreme Court interpretation of constitutional text si-
multaneously both uses and creates meaning. Consequently, what
may, on the basis of the text alone, look like one field for interpretation
becomes increasingly complex as authoritative interpretations put flesh
on the text's bare skeleton. Interpretations continuously change the op-
tions available to subsequent interpreters, thus occasionally making
quite precise clauses more open ended in practice but more often mak-
ing even the most open ended clauses substantially less so. For exam-
ple, given the almost infinite number of inequalities inherent in all
legislation, the range of permissible applications of the equal protection
clause, based on the text alone, is vast. As subsequent interpretations
have limited the number of classifications that occasion meaningful
equal protection scrutiny, however, the linguistic frame of the text
alone has been substantially reduced in size, and therefore the size of
the field within the frame has also been reduced.
Obviously the relationship between case law and text could itself
generate a full essay, especially on the way in which the text continually
constrains interpretation even in the face of a highly developed body of
case law. For current purposes, however, I wish to point out only that
precedent as well as text can circumscribe the field of permissible inter-
pretations. Despite this function of precedent, there still remains the
question of how to decide among those alternatives that the text and
precedent render permissible.
Again, I cannot provide a full answer to this question here, as it is
well beyond my principal themes. Under my analysis, the decision of
what to do within the frame is largely separate from the decision about
what the frame looks like. Thus, how to decide between permissible

(1979). The question of stare decisis has been recently and explicitly before the Supreme Court.
See City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983).
93. See Schauer, Speech and "Speech"-Obsceniyand "Obscenity'" An Exercisein the Inter-
pretatton of ConstitutionalLanguage,67 GEo. L.J. 899 (1979).
94. See Caton, Introduction, in PHILOSOPHY AND ORDINARY LANGUAGE i, v (G. Caton ed.
1963).
 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 58:399

alternatives may be beyond the province of legal analysis and expertise.

That is, one might conclude that, once the text and precedent have
drastically narrowed the range of permissible arguments and outcomes,
it is hopeless to suppose that choices among these outcomes will be
anything but political, sociological, and psychological. One might also
say that such a process, even if not inevitable, is still quite desirable.
The mere fact that courts are engaged, in part, in a reasoning process
similar to that of a legislature does not make the process of judicial
policymaking illegitimate. 95 There are advantages not only to separa-
tion of powers and checks and balances, but also to simple redun-
dancy. 96 Requiring several different bodies to confront substantially
similar problems, despite more or less identical methodology, may nev-
ertheless moderate a potentially wider range of results. Thus, nothing
may be special about what courts do within the frame, except for some
comparatively superficial effects of deciding issues in a judicial setting.
If this is the case, then the constitutional theorist, at least qua lawyer,
may have no special expertise regarding the problem of what to do
within the frame.
It is also possible, of course, to impose more constraints on what
can be done within this area. For example, courts might be required to
look at original intent. The use of original intent in this way is slightly
unconventional, at least in tone. Here the use of original intent is not
inherent in the nature of law, the nature of the Constitution, or the
nature of the language; all of these can be understood without recourse
to original intentions of authors of texts.9 7 The use of original intent as
an interpretive guide would instead be a political and strategic deci-
sion. That is, although we need not feel bound by an abstract notion of
legalism to rely on original intent, we might still wish to be so bound as
a political choice about how and how much we wish to constrain our
judges.98 This does not mean that original intent would provide precise
answers to every, or even to any, problem. But it would still narrow the
range of permissible choices even further, by excluding some answers

95. Indeed, much of our recent history has seen courts and legislatures dealing with many of
the same problems, such as segregation, sex discrimination, protection of the environment, and
access to governmental information.
96. See Cover, The Uses of JurisdictionalRedundancy:Interests,Ideology, and Innovation,22
WM. & MARY L. REv. 639 (1981).
97. Easterbrook, supra note 18, at 535 n.3; Schauer, supra note 15, at 797.
98. See, eg., Monaghan, supra note 79. Cf. J. ELY, DEMOCRACY AND DISTRUST (1980),
which represents a generally similar view of the role ofjudicial power, but a quite different view of
the role of original intent. The contrast makes clear that original intent, when used for this pur-
pose, is not the only tool available.
1985] EASY CASES

that would be permitted but for the reference to original intent. 99 This
optional recourse to original intent would therefore narrow further the
size of the frame.
Ideally, the function of the courts would be to construct a theory
around the particular clauses requiring adjudication. This theory
would be partly political and partly philosophical, would naturally
evolve and change over time, and would, at the very least, justify the
inclusion of the particular clause in the document. Thus, we would
have a philosophical/political theory for the equal protection clause, as
well as for free speech, the tenth amendment, and so on. Each adjudi-
cation would simultaneously apply and add to the theory; in this man-
ner the theory would never be constant. Despite this constant change,
each of these theories, some of which would be highly complex and
others of which would most likely be rather simple, would provide an
underlying explanation (and not necessarily an historical one, although
history might at times be illuminating) for that clause's presence in the
Constitution."'° Such an explanatory theory would provide a basis for
future application of the clause, as it would indicate the types of
problems with which the clause ought ideally to deal.
Thus, the language in the document can be viewed as theory au-
thorizing: 1" mandating the interpreter to construct a theory around
the language and the precedents, recognizing that precedents can be
discarded if necessary in a way that textual language cannot.1 "2 The
99. It is currently fashionable to make sport of the ability to determine original intent with
any degree of certainty. Eg., Brest, The Misconceived Questfor the Original Understanding,60
B.U.L. REv. 204 (1980); Dworkin, The Forum of Princile 56 N.Y.U. L. REv. 469 (1981). As
argued in a different context throughout this Article, however, it is a mistake to confuse lack of
certainty with uselessness. I am not sure, nor could I be, about what the framers thought of
applying the first amendment to commercial advertising of abortion clinics, or the due process
clause to replevin of personal property. Nevertheless, I can still conclude that the evidence of
original intent inclines much more away from the current doctrine than toward it. Excess reliance
on uncertainty to dismiss the relevance or control of original intention thus seems to be too much
the easy way out.
100. I have developed and applied this idea in Schauer, Must Speech Be Special?, 78 Nw.
U.L. REv. 1284 (1983).
101. But I would not claim that the document, taken as a whole, authorizes constructing a
theory around itself. See Schauer, supranote 15. To some extent I agree with Professor Richards
that some of my criticisms against theory building around the entire document cut against theory
building around particular clauses as well. Richards, InterpretationandHistoriography,58 S. CAL.
L. REv. 489, 520 (1985). I am not saying, however, that there is one uniquely correct theory that
can be built around each clause. There might be several, or many, but the tether of one concrete
idea, rather than selectively picking from and weighing the many ideas in the entire document, is
sufficient to me to make the constraints real with respect to a clause in a way that they are not with
respect to the entire document.
102. Precedents cannot be discarded willy-nilly, even by judges with the power and the incli-
 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 58:399

textual language provides both the boundaries and the measuring rod
for the theory to be constructed. If the theory constructed is within the
textual and precedential boundaries of the particular clause at issue,
and is at least consistent with the rest of the document, 10 3 then it is a
permissible interpretation of the document.
In describing a theory built around a particular clause as "a per-
missible interpretation," I am plainly denying that, for any constitu-
tional provision, or for the Constitution in general, there is one
uniquely correct theory. A number of theories might be equally consis-
tent with both the text and the precedents. This is not the same as
saying that any and all theories are legitimate, however. Only a rela-
tively small number, compared to the universe of theories, will be com-
patible with the text and the precedents, and thus the text and the
precedents will have served their narrowing function. The theory itself
is then pressed into service, because a given decision must comport
with the theory as well as with the text and the precedents. Even the
addition of this constraint, however, will not eliminate choice by the
interpreter; some interpretive choice is inellminable. No number of
seemingly fixed moorings can ever remove all choice from the process
of constitutional adjudication. Those who have this as a goal will inev-
itably be disappointed, and perhaps nihilistic tendencies result from the
failure of unrealistic expectations. Judges will invariably be forced to
make choices, and it is inevitable that those choices will be influenced
by political, sociological, and psychological factors. If we look at law
and language as tools for constraining these choices and influences
within manageable limits, we will have set realistic and attainable
goals. Language can and has performed this function, and there is no
reason to suppose that it cannot continue to do so.

EPILOG
A CHRISTMAS TALE

Regardless of the caveats and qualifications with which I decorate

my main theme, it is inevitable that my thesis will be characterized as,
mildly, textualism, or, less mildly, literalism. Apart from a general ob-
jection to "ismism," I find such characterizations either simply inaccu-
rate, as in the case of literalism, or merely misleading, although much

nation to do so and with a receptive political climate (City of Akron v. Akron Center for Repro-
ductive Health, 462 U.S. 416 (1983)); the reason why this is so says a great deal about the very
nature of law.
103. See supranote 83.
1985] EASY C4SES

the same should be said about my accusations of nihilism. There are

no real nihilists, just as there are no real literalists, or even real textual-
ists. All of us who think about these issues recognize the limitations of
our perspectives, but we differ on where to place the proper emphasis.
In so doing we commit sins of exaggeration, leading others to commit
sins of mischaracterization. Nevertheless, exaggerations may be useful,
even if the result is a perception of literalism, because literalism itself
may be a useful view. In order to appreciate the value of even an un-
realistic literalism, we must engage in a bit of fantasy.
I take it as a given, at least for the expected audience of this Arti-
cle, that Santa Claus does not exist."° No fat old man makes toys at
the North Pole, fRies around the world towed by eight reindeer, or de-
posits presents after sliding down a chimney. Nor, most significantly,
does he or any similar creature reward nice children and punish
naughty ones.
Despite the fact that Santa Claus is plainly a myth, there are few
among us, myself included, who would banish that myth from the con-
temporary consciousness. Myths serve important functions. They pro-
vide goals and ideals, and as such they channel our thinking. They
remind us of certain things, they teach us lessons, and they incline us
towards certain subjects and away from others. None of this is abso-
lute, but myths, at the very least, can matter. This country and this
world might very well be a different place without Santa Claus, even
though no one I know seriously expects him to visit our homes at
Christmastime.
So it is with the myth of linguistic certainty, commonly referred to
as literalism. The text of the Constitution is not, by itself, going to
provide answers to hard constitutional questions, and anyone with any
sense knows that. The myth of literalism, however, remains the con-
science on the judicial shoulder, constantly reminding judges (and
hopefully the constitutional theorist) that they are expounding a written
Constitution, and that interpretations inconsistent with the written text
require an enormous amount of explanation and justification, if indeed
they are even legitimate. Judges who think about the text, and who try
to do what they think the text permits, are at least thinking in the right
direction, whether or not the goal is attainable. The myth of literalism,
or the myth of textualism, guides and channels the thinking process of
the interpreter, just as the language serves the same function. That

104. But see Church, Is There a Santa Claus?,N.Y. Sun, Sept. 21, 1897 (replying to inquiry
from Virginia O'Hanlon).
440 SOUTHERNT CALIFOATIA LAW REVIEW [Vol. 58:399

neither the myth nor the language is perfectly effective is not a com-
ment on the inefficacy of either myths or language; it is a comment only
on the human condition, of Which both language and uncertainty are
essential features.