Unfaithful Interpretation and The Gold Clause Cases

The other day I said that the Court must sometimes break with the view that constitutional interpretation is about being faithful.  What’s my definition of unfaithful interpretation?  To avoid arguing about the merits of cases that people might think were wrong or right, here’s my idea. Unfaithful interpretation is when a court declares that somebody has a right but, for prudential reasons, will get no remedy.  It’s not that a remedy cannot be given (because of a statute or a doctrine) or that it’s only a partial or delayed remedy; the Court decides that it’s just a bad idea to provide any remedy.  I think this is unfaithful if you assume that remedies and rights should be linked absent some contrary authority. Moreover, denying a remedy for prudential reasons undermines confidence that the legal analysis was done in good-faith.

What are some examples?  Marbury, for starters.  Sure, the Court said that it could not give him a remedy because that would be unconstitutional, but nobody thinks that Marshall’s reading of the statute there was anything other than a dodge.  Worcester v. Georgia is another example, as the Court did not issue the mandate and thus left Worcester to sit in a Georgia jail until further notice.  Ex Parte McCardle is another, as the Court could have issued an opinion on the merits in that case before the jurisdiction-stripping statute took effect but chose not to.  Giles v. Harris, which I talk about in my new book on Populism, involved the Court’s refusal to give a remedy to African-Americans denied their suffrage rights in the South.  The Gold Clause Cases, which will be the focus of my next Article and which I’ve posted about, is the least-well known instance of unfaithfulness.

What connects these cases?  There was a deep fear among the Justices that providing a remedy would:  (1) expose the Court to institutional damage; (2) lead to an adverse political outcome; or (3) both.  Now, the question is, should the Court be unfaithful in these situations?  Isn’t that getting dangerously close to saying that there is a higher law above the Constitution? (Judicial self-preservation?  The Constitution is not a suicide pact?) Or does it suggest, as I suggested on Monday, that interpretive theory is wrong when it presupposes things like “integrity” or “fidelity?”

I’m not sure, which is why I think this might be a good paper.

UPDATE:  In response to some of the comments, let me add this.  Yes, the argument here is premised on the idea that rights and remedies should be linked.  (After all, there must be some way of determining whether an action is unfaithful that can reach beyond a particular interpretative theory.  I’m not sure that there is a better alternative.)

So the other thought is “Well, suppose my theory says that it should be followed unless doing so would lead to a bad result.  In that case, I’ll refuse to provide a remedy.  And if I do refuse, I’m being faithful to my theory, not unfaithful.”

That is true.  Of course, it’s only true if that is your theory.  Is refusing to provide a remedy evidence of support for that theory or evidence to the contrary?  After all, the cases themselves don’t describe what they’re doing as consistent with some broader principle.  Instead, they usually try to hide the inconsistency.  Evidence of a guilty conscience, methinks. But maybe not — I’ll have to think about that.

UPDATE #2 — Perhaps this is really about interpretive “necessity” rather than “unfaithfulness.”

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10 Responses

  1. SuperSkeptic says:

    Your idea, definition, and examples are very intriguing, but do not forget standing issues.

  2. Joe says:

    What a way to not make a point. Rule in favor or someone, but not provide them with an actual remedy to their petition.

  3. William Baude says:

    I think it suggests that this is a very odd definition of “unfaithful.” You defend this definition by saying “I think this is unfaithful if you assume that remedies and rights should be linked absent some contrary authority. Moreover, denying a remedy for prudential reasons undermines confidence that the legal analysis was done in good-faith.”

    The second sentence in particular seems to be wrong. If the legal analysis does not take effect because of some sort of prudential/equitable/jurisdictional doctrine, that should give us added CONFIDENCE that the legal analysis was done in good-faith. There is no possibility that the underlying legal analysis was “results-oriented” in a particular case if it has no result in that case.

  4. Gerard N. Magliocca says:


    You must be a fan of dicta then. Because that’s all the discussion of the right is in these cases. That opens the door to all sorts of mischief or sloppiness.

  5. Mark says:

    Wouldn’t the relevant question, then, be what a judge is or is not being faithful to? I think the problem with the concept as it’s being advanced now is conflating the judge’s good or bad faith in interpreting the relevant legal materials, as distinct from the judge’s good or bad faith in _deciding the case_ thereafter. I.e., that there is considerable potential for mischief if a judge renders all of their analysis merely dicta doesn’t in itself affect the quality of the analysis (which I take to be, in part, the point Will was making).

    This strikes me as less an argument about interpretive theory, and more an argument about judicial duty, in other words.

  6. Gerard N. Magliocca says:

    That’s a fair point. To the extent that an interpretive theory is seeking to tell judges what they should do, though, then the conflation is apt. But you’re right that an interpretive theory might not be concerned with judges.

  7. TJ says:

    Gerard, I’m rather confused about your definition of unfaithful. In your earlier post, you posited that interpretative theories assume that integrity is a good thing. In this post you give a definition to an instance of what you perceive to be unfaithfulness, “when a court declares that somebody has a right but, for prudential reasons, will get no remedy.”

    But the only way make this an “unfaithful” application of a theory is to articulate the theory to which it departs: “assume that remedies and rights should be linked absent some contrary authority.”

    The problem is that only the people who subscribe to the theory that rights and remedies are linked are “unfaithful” to it when they act contrary-wise. And that makes it impossible to divorce the question of fidelity from the soundness of the theory to which on should be faithful. By saying that right-without-remedy cases are unfaithful, you are simply advocating the controverted proposition that rights and remedies should be linked, or at the very least that all the judges in these cases believed so.

  8. Gerard N. Magliocca says:

    I’m unaware of an interpretive theory that holds that rights and remedies should not generally be linked. Can you point me to somebody who does think that?

  9. TJ says:

    Gerard, clearly the judges in the cases you speak subscribe to it.

    And if that makes my point sound ipse dixit, that is because this is my concern about your definition of unfaithfulness. I can understand your conception of “unfaithfulness” when applied to laws, as opposed to theories.

    John McCain once proposed a law that would categorically ban torture. Presented with the “ticking bomb” hypothetical, he then said that he would expect the legal system to turn a blind eye in that particular instance. Thus, had the law been enacted, it would have been enacted with the expectation that it would be unfaithfully applied.

    But McCain’s theory has no unfaithfulness or contradiction. What is a contradiction of the law — torture when in a ticking bomb situation — becomes only an exception in the theory. Scalia does not make himself an originalist who occasionally is unfaithful to his own theory when he upholds non-originalist precedents. Instead, he styles himself a “soft-hearted originalist” whose theory–soft-hearted originalism–internally permits the exception for established precedents.

  10. William Baude says:

    I don’t have a strong view about whether dicta is a good thing or a bad thing– although my weak view is that not all dicta is created equal.

    But I do think that “well-considered” dicta– i.e., dicta with a substantial amount of reasoning and explanation, as opposed to an off-hand comment– is almost always done in particularly good-faith. Judges have less temptation to twist the answers to reach their desired results when the answers don’t have any practical effect anyway.