On Avoiding Foundational Questions: A Reply to Andrew Coan (Response to Article in This Issue, P. 213‪)‬

In both legal practice and legal scholarship, it is sometimes best to proceed without attempting to answer the foundational questions. Originalists can inquire into the original public meaning of the Equal Protection Clause without defending originalism. Economic analysts of law can ask how to promote efficiency without defending the view that the law should aim at efficiency. It would be useful to know how utilitarians and retributivists would approach punitive damage awards, without resolving the question whether we should be utilitarians or retributivists. Here, as elsewhere, a division of labor makes good sense. Some people (or some works) take certain judgments for granted and proceed from there; other people (or other works) try to resolve the deepest questions. On some occasions, the Supreme Court seems to have taken account of the risk or reality of public outrage. (1) Surprisingly, there has been little analysis of the question whether the Court has been right to do so. (This may be the only area of public law in which the positive literature (2) is more developed than the normative literature!) It would seem to be useful to begin by asking how those with different understandings of constitutional interpretation might approach the problem. At first glance, originalists would seem unlikely to approach public outrage in the same way as "moral readers"; (3) committed consequentialists (4) are likely to have a distinctive view. But perhaps these conclusions are too crude. Perhaps the distinctions are less sharp than we suppose. Perhaps an exploration of different approaches will reveal some surprises.