Charles Barzun argues that Adrian Vermeule and I smuggled substantive assumptions into what we characterized as a methodological criticism about legal scholarship and judging. I don’t think he’s right. Our major example is the judge who says that he may settle a dispute between the executive and legislature based on the Madisonian theory that “ambition must be made to counteract ambition.” In appealing to Madison, the judge implicitly puts into question his own impartiality, as Madison was referring to the judiciary as well as the other branches. We didn’t argue that judges should never resolve disputes between the executive and the legislative, just that the judge (or, more plausibly, an academic) must supply a theory that does not set the judge outside the system.
Barzun thinks that we make “controversial claims about the nature of law and how judges decide cases,” in particular, that we make excessively skeptical assumptions about judicial motivation. I don’t think we do, but the major point is that our argument in this paper does not depend on such claims.
For example, suppose the judge responds to our argument by saying that he is in fact public-spirited, and only presidents and members of Congress are ambitious. That may well be so, but then he must abandon Madison’s argument and make his own as to why these are plausible assumptions about political behavior. If one shares the judge’s optimism about human nature, one might believe that the president and members of Congress are also public-spirited, in which case judicial intervention in an inter-branch clash may not be warranted. The judge can also, of course, make arguments about different institutional constraints, public attitudes, and so on, which may justify judicial intervention. But that is a different theory, different from the Madisonian theory that he and many scholars propound.
In the course of describing the various ways that scholars respond to the inside-outside problem, we sometimes argue that they escape the problem only by making implausible arguments. But the inside-outside problem does not depend on our skepticism about these specific arguments being correct, and our real point is that most of the time scholars and (especially) judges do not try to make such arguments but instead ignore the contradictions in which they entangle themselves.