Constitutional Hedging

50 Pages Posted: 2 Mar 2021

See all articles by Evan D. Bernick

Evan D. Bernick

Georgetown University Law Center

Date Written: February 10, 2021

Abstract

We often face normative uncertainty—uncertainty about what we ought to do. How much aid ought we to give developing nations? Ought we take steps today that will reduce our welfare but increase the welfare of future generations? Should we eat nonhuman animals? Should our answers to these questions be dictated by fixed moral norms, likely consequences, our notions of what a virtuous person would do, some combination of those things, or other considerations entirely?

We have good reasons to think that judges face forms of normative uncertainty when deciding cases under the U.S. Constitution. But the relevance of normative uncertainty to constitutional decisionmaking has gone largely unexplored. More specifically, there is wanting inquiry into whether judges should take into account their uncertainty about whether the constitutional theory in which they are most confident—common-law constitutionalism, originalism, popular constitutionalism, etc.—ought to be followed in a particular case, rather than another theory that they deem plausible but in which they are less confident. The conventional wisdom is that judges should follow the theories in which they are most confident unless and until they lose confidence in them.

This Article challenges the conventional wisdom by arguing that constitutional hedging ought to be taken seriously as a strategy for constitutional adjudication. By constitutional hedging is meant a procedure whereby judges routinely evaluate potential constitutional decisions under multiple constitutional theories that they deem plausible, taking into account their confidence in those theories and the perceived gravity of the stakes under each. Thus, a judge who is most confident in originalism might in a given case deliberately make a decision preferred by common-law constitutionalism if the stakes are much higher under common-law constitutionalism than they are under originalism. The Article canvasses the philosophical literature on normative uncertainty; provides reasons for thinking that judges encounter normative uncertainty in constitutional cases; and constructs a provisional hedging framework to test hedging’s plausibility, adapting a proposal that William MacAskill, Krister Bykvist, and Toby Ord have put forward for decision under normative uncertainty more generally. The Article applies the framework to three weighty constitutional questions. It then confronts a litany of objections to taking hedging seriously.

Keywords: constitutional law, constitutional theory, moral uncertainty, normative uncertainty, originalism, common-law constitutionalism, Dworkin, hedging, law and philosophy, decision theory

Suggested Citation

Bernick, Evan D., Constitutional Hedging (February 10, 2021). Available at SSRN: https://ssrn.com/abstract=3783472 or http://dx.doi.org/10.2139/ssrn.3783472

Evan D. Bernick (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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