Epistemic Communities in American Public Law

I. A PUZZLE

My focus here is on what judges know, or think they know, and on what judges do not know, and do not know that they do not know.¹ I suggest that judges live in, and help constitute, epistemic communities, broadly defined as “professional networks with authoritative and policy-relevant expertise.”² One result is epistemic overconfidence, which is a serious problem in American public law. The existence of epistemic communities, and the problem of epistemic overconfidence, create serious challenges for the project of originalism, but they also create serious challenges for public law more broadly. And while my focus is on American public law, the account of epistemic communities, and of why they exist, is meant to have general implications for politics and processes more broadly, especially insofar as I emphasize optimal search, rational updating in light of priors, and motivated reasoning.

It is difficult to defend these propositions in the abstract, so let us focus on some concrete issues. We are going to linger over those issues for a good while, but it is important to keep the broader topics of epistemic communities and epistemic overconfidence in mind; I will return to them in due course. I use the concrete problems, and American public law, not only because they are interesting and important in their own right, but also for purposes of illustration. Sometimes we can find a universe in a grain of sand.

In the United States, there has been an extraordinary, even unprecedented outpouring of historical research on the views of the founding generation and the original public meaning of the U.S. Constitution, especially in the domain of separation of powers.³ We may well know more about those views, and about that meaning, than we ever did.⁴ It is now clear that from the originalist standpoint,⁵ the idea of a “nondelegation doctrine” is a myth⁶ – a concoction of the twentieth century.⁷ The founding generation simply did not believe that the Constitution limited Congress’s power to grant broad discretion to others, including the executive branch.⁸ We know too that from the originalist standpoint,⁹ the idea of unrestricted removal power is a myth – another concoction of the twentieth century, not the eighteenth.¹⁰ Among the founding generation, it was widely understood that Congress could limit the president’s removal power over high-level employees, including (some) principal officers.¹¹ Understood in terms of its original public meaning, the founding document did not forbid grants of broad discretion, and it did not require unrestricted removal power.

Here is the puzzle. The clear historical understandings appear to have had no impact – none at all – on originalist judges who have been committed to the nondelegation doctrine¹² and unrestricted removal power.¹³ Their commitments seem impervious to the current evidence.¹⁴ It is true that some of the historical research is new;¹⁵ we cannot rule out the possibility that its effects will grow over time. But some of the research is not so new, and even so, its effects have been essentially nonexistent.¹⁶

The appropriate conclusion is that when preexisting convictions are firm, careful historical evidence does not matter, even or perhaps especially in constitutional law.¹⁷ If that is true, it is a serious challenge for all those concerned about constitutionalism, and perhaps especially for originalists. One way to understand the situation is that constitutional law has become, or often is, essentially tribal, even on questions of historical fact, and even when the ideological or political valence of the issue is far from clear.¹⁸ Some people are part of Team Nondelegation Doctrine, and some people are part of Team Myth of the Nondelegation Doctrine. Some people are part of Team Unlimited Presidential Removal Power, and some people are part of Team Limited Presidential Removal Power. It is exceedingly difficult to get people to switch teams.¹⁹

II. A VERY DIFFERENT PUZZLE

Let’s start over. Is there another way to think about the recent research? Would a judge or scholar from a different epistemic community offer a different understanding of what we have learned? Might we be living, in some sense, in parallel epistemic worlds?

In recent decades, we have seen an extraordinary outpouring of historical research on the views of the founding generation. This is especially true in the domain of separation of powers. We now know that from the originalist standpoint, the idea of a “nondelegation doctrine” is exceedingly well-founded.²⁰ The founding generation clearly believed that the Constitution limits Congress’ power to grant broad discretion to others, including the executive branch.²¹ We know too that from the originalist standpoint, the idea of a “unitary executive” has firm and deep roots.²² In the founding generation, it was widely agreed that Congress could not limit the president’s removal power of high-level employees, including Cabinet heads.²³ These historical facts speak volumes about the original public meaning of the founding document.

Here is the puzzle. The clear historical understandings appear to have had no impact – none – on judges who have been unenthusiastic about the nondelegation doctrine²⁴ and about the proposition that Article II forbids congressional restrictions on the president’s removal power.²⁵ Their commitments are impervious to evidence.²⁶ It is true that some of the historical research is new,²⁷ and we cannot rule out the possibility that its effects will grow over time. But some of the research is not so new, and its effects appear to have been nonexistent.²⁸

The appropriate conclusion is that when preexisting convictions are firm, careful historical evidence does not matter, even or perhaps especially in American constitutional law. One way to understand the situation is that in the United States, constitutional law has become, or often is, essentially tribal, even on questions of historical fact, and even when the ideological or political valence of the issue is far from clear. Some people are part of Team Nondelegation Doctrine, and some people are part of Team Myth of the Nondelegation Doctrine. Some people are part of Team Unlimited Presidential Removal Power, and some people are part of Team Limited Presidential Removal Power. It is exceedingly difficult to get people to switch teams.

III. THE PUZZLE, STRAIGHT UP

Let’s start over (one last time).²⁹ (Cards on the table; this is what I actually think.)

In recent years, we have seen an extraordinary amount of historical research on the views of the founding generation and the original public meaning of the Constitution. This is especially true in the domain of separation of powers. We now know that from the originalist standpoint, the idea of a “nondelegation doctrine” has weak foundations – not no foundations, but weak foundations.³⁰ At the constitutional convention and during the ratification debates, the doctrine was not mentioned.³¹ Early congresses granted broad discretion to others, almost always without constitutional objections.³² True, the word “almost” is important; it would be an overstatement to say that the nondelegation doctrine was entirely absent.³³ We cannot rule out the possibility that the founding generation would have found a constitutional defect if Congress had said that (for example) the president may do “whatever he deems necessary or appropriate to promote the general welfare.”

But no evidence demonstrates that such a law would have been deemed unconstitutional, and the early practice speaks decisively against the idea that Congress cannot delegate broad policymaking authority to others. These points bear directly on the original public meaning. The central conclusion is clear. Understood in terms of that meaning, “the Constitution at the Founding contained no discernable, legalized prohibition on delegations of legislative power, at least so long as the exercise of that power remained subject to congressional oversight and control.”³⁴

The question of the removal power is altogether different. With respect to the nondelegation doctrine, the problem is that the evidence is so sparse; there are plenty of dogs who did not bark, day or night.³⁵ The sparseness of the evidence, in the face of broad grants of discretion, is powerful evidence against a robust nondelegation doctrine.³⁶ The basic point is that members of the founding generation were not worried or even concerned about such grants of discretion. That point tells us a great deal about original public meaning of the relevant provisions of the founding document, above all Article I, section 1.

By contrast, the evidence with respect to Article II, section 1 is anything but sparse; there is voluminous material on the president’s removal power.³⁷ Alexander Hamilton, for one, changed his mind. In The Federalist No. 77, he said that the removal power followed the appointment power and so was shared:³⁸

It has been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices.

What is remarkable about this statement is not only the clear conclusion; it is also the effort to ground the conclusion in a theory, which has to do with stability over time. Madison spoke in similar terms in The Federalist No. 39:³⁹

The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally will be a subject of legal regulation, conformably to the reason of the case, and the example of the State Constitutions.

After the founding, Hamilton concluded that the removal power resided in the president alone. In 1789, he said, “[t]he constitution affirms, that the executive power shall be vested in the president” and that “inasmuch as the power of removal is of an executive nature … it is beyond the reach of the legislative body.”⁴⁰ For his part, James Madison was all over the place.⁴¹ Early on, he said, “it is in the discretion of the legislature to say upon what terms the office shall be held, either during good behaviour, or during pleasure.”⁴² But he shifted to the view that the president had unrestricted removal power⁴³ (and then shifted back again⁴⁴). Insofar as he (sometimes) supported unlimited presidential authority, Madison was not alone. Several others shared his view.⁴⁵ Still, Madison’s sometimes view in favor of unlimited removal authority did not command anything like a consensus,⁴⁶ and the best account is that most people in Congress disagreed with him.⁴⁷ For that reason, it is challenging to support the view that understood in terms of its original public meaning, any provision of the Constitution forbids Congress from restricting the president’s removal authority, at least across-the-board.⁴⁸

The conclusion is simple: “Once a series of misreadings and omissions are corrected, it is unclear what evidence remains for the Taft/Roberts interpretation of the Decision of 1789.”⁴⁹ Indeed, “the real Decision of 1789 was a rejection of the unitary model,” for “a significant majority opposed the interpretation that Article II implied a general removal power, and even among the minority claimed by the unitary theorists, there was explicit opposition to the claim of legislative indefeasibility.”⁵⁰

What should we do with that? Does the claim of unlimited removal power stand defeated? Perhaps not. Perhaps we can say that even if most people in Congress rejected that idea, it nonetheless remains on the table: With respect to the original public meaning, Congress’ early interpretation is hardly authoritative, especially on this kind of question, because Congress has an institutional interest in aggrandizing its own power. It follows that on the question, whether Congress can restrict the president’s removal authority over high-level executive branch employees, we have to offer the Scottish verdict: Not proven. On that question, there was no clear original public meaning.⁵¹

The historical evidence, then, supports the following conclusions.⁵² (1) The founding generation did not believe in anything like a robust nondelegation doctrine, understood as prohibition of broad grants of discretion to the executive branch.⁵³ This evidence bears strongly on the original public meaning of the founding document. (2) It is unclear whether some kind of nondelegation doctrine, banning not merely broad but entirely open-ended grants of discretionary authority, would have been believed to be unconstitutional; we do not have reliable evidence on that question. Nor do we have reliable evidence on the original public meaning of the founding document on that question. (3) Reasonable people can differ over whether Congress can restrict the president’s removal authority, but the weight of the evidence is that the founding generation believed that it can.⁵⁴ That evidence is also strongly suggestive about the original public meaning of Article II. On the removal question, the text of the Constitution is opaque, and the historical materials make it challenging to defend the view that interpreted in accordance with its original public meaning, the Constitution requires all high-level executive officers to be at-will employees of the president.

Here is the puzzle. The historical research appears to have had no impact – none – on judges, in the sense that judicial opinions have not seriously grappled with the relevant evidence.⁵⁵ On these questions, judicial commitments seem impervious to evidence. Much of the time, judges appear to be treating contrary historical evidence as a college debater would – as welcome supporting material for a position that has long been fixed in advance, or as a problem to be overcome through strategic silence, or through maneuvers and tricks.

One way to understand the situation is that constitutional law has become, or often is, essentially tribal, even on questions of historical fact, and even when the ideological or political valence of the issue is far from clear. Some people are part of Team Nondelegation Doctrine, and some people are part of Team Myth of the Nondelegation Doctrine. Some people are part of Team Untouchable Removal Power, and some people are part of Team Touchable Removal Power. It is exceedingly difficult to get people to switch teams. The reason, in short, is that team members are part of epistemic communities, and a member of one such community is unlikely to be convinced by a member of another such community.⁵⁶ But this point raises puzzles of its own.

IV. WHAT DO JUDGES KNOW?

Of the three accounts just given, some version of the third is the most plausible.⁵⁷ The original public meaning of Article I, section 1 does not clearly include a nondelegation doctrine, taken as a prohibition on broad grants of discretion, by Congress, to the executive branch (and others).⁵⁸ Broad grants of discretion were widely deemed to be constitutional.⁵⁹ To be sure, it would be too categorical and definitive to say that the founding generation did not believe in any kind of nondelegation doctrine, again understood as a restriction on open-ended grants of discretionary authority to the executive branch (or others). The evidence does not demonstrate that the founding generation believed in any such doctrine, but it does not show that it did not.

The view that the Constitution forbids restrictions on the president’s power to remove high-level executive branch officials was embraced explicitly and by prominent people in the founding era.⁶⁰ Was that the original public meaning of Article II? We do not know for sure, but the best evidence suggests that it was not. To be sure, that evidence is not conclusive. But as of now, contextual materials suggest that congressional restrictions on the president’s removal power did not offend the original public meaning of Article II.

On both of these issues, the recent historical research is deeply informative, and in important respects jarring. The sheer number of broad grants of discretionary authority in the 1790s seems to speak volumes. No one could read the historical research and continue to have confidence in the existence of a robust nondelegation doctrine. No one could read the historical materials, and the relevant statutes, and remain certain that the founding generation believed that Congress lacked authority to restrict the president’s removal authority. And yet we do not appear to see any movement in the views of prominent judges on the relevant questions. We do not see any kind of updating, in the direction of either a shift in view or a reduced level of confidence.

To be sure, the research raises puzzles, and conscientious originalists will want to focus on them.⁶¹ Suppose we learn a great deal about actual practices during the founding era, or about the views of members of Congress about the permissibility of broad grants of discretion or restrictions on presidential removal power. Have we learned the original public meaning of relevant terms? Not necessarily. Many originalists now distinguish between the original expectations, or contemporaneous “intentions,” and the original public meaning.⁶² What is the original public meaning of the relevant constitutional terms? To answer that question, congressional practices and views expressed during legislative debates would not be authoritative.

Nonetheless, it would be most surprising, in view of the relevant research, if the original public meaning of the relevant terms supported a nondelegation doctrine that prohibited Congress from granting broad discretion to agencies, or that prohibited Congress from imposing (some) restrictions on presidential removal power. The reason is that abstract terms (“legislative,” “executive,” “take care”) are most unlikely to have had concrete specifications that would run roughshod over widespread contemporaneous practices, especially when those who engaged in those practices were keenly aware of those abstract terms and focused directly on constitutional meaning.

V. STARE DECISIS AND NEW KNOWLEDGE

It is possible, of course, to invoke stare decisis. When, if ever, should historical research be sufficient to dislodge longstanding constitutional interpretations?⁶³ That is a large and disputed question. One might urge that the nondelegation doctrine has been with us for a very long time,⁶⁴ and that new historical work, inevitably disputed, is hardly sufficient to dispense with longstanding doctrine. Constitutional Burkeans might embrace that view; they do not favor French revolutions, even if those revolutions are based on compelling historical research. One might urge that the idea of unrestricted removal authority has also been longstanding,⁶⁵ even if some qualifications are necessary,⁶⁶ which means that recent historical work must grapple with respect for precedent. In that event, the relevant work must be placed in the context of the longstanding debate about how an originalist, or for that matter any judge who cares about the original public meaning, should deal with historical work that is inconsistent with apparently settled judicial understandings. Here again, Burkeans and originalists might be at odds.⁶⁷

That is certainly a possibility. As applied to the two questions at hand, the problem with this claim is that the relevant issues are not so settled. The modern effort to reinvigorate the nondelegation doctrine⁶⁸ is hardly Burkean or preservative. It is designed to alter longstanding practices, not to preserve them, and to do so in the interest of the original public meaning. So too, the effort to expand presidential removal authority has shown skepticism about longstanding precedent.⁶⁹ Explicitly invoking the original understanding and the supposed Decision of 1789, the Court has asserted that the constitutional settlement severely restricts congressional power to limit the president’s power of removal and that some of its decisions, recognizing such power, must be rethought and cabined.⁷⁰

Return in this light to the recent and not-so-recent historical findings. What is striking is that we do not see anyone saying: “I used to believe X, but having reviewed the historical evidence, I now believe Y.”⁷¹ We do not see anyone saying, “I used to believe X, but I now do so with less confidence; I continue to believe X, but I have read the evidence, and I now see that reasonable people can differ, and I am now aware that I might be wrong.” We do not even see anyone saying, “I am aware that my view is inconsistent with significant historical research, which reaches a very different conclusion. Nonetheless, I believe that my view is right.” At the very least, it seems fair to say that in these two domains, the failure to engage with the historical research⁷² is more than a bit shocking. At first glance, it seems staggering.

How can we explain that failure?

VI. EPISTEMIC COMMUNITIES, 1: OPTIMAL SEARCH

One answer might seem disappointingly mundane: Perhaps the relevant judges are simply unaware of the relevant research. Judges, including Supreme Court justices, are not Large Language Models. They have limited time and information, and they are busy. They have to think about optimal search.⁷³ They do not have time to read the latest academic papers or the latest books from university presses. In their spare moments, they might be inclined to do some of that, but they are naturally focused on the cases that come before them, and on the materials that are cited in the briefs. It might simply be the case that the relevant historical research is not known to them, not because they are not doing their jobs, but because doing their jobs is what they are doing.

To be sure, the historical research on which I have focused here is not exactly secret, and some of the central work on nondelegation and removal is not exactly new.⁷⁴ But judges are judges, and it is not their practice to read the latest academic writing, whose credibility might not be self-evident (not to put too fine a point on it). Is some jarring new paper in the Columbia Law Review or the University of Pennsylvania Law Review really worth their attention?⁷⁵

We might sharpen this point. Like all of us, judges are part of epistemic communities.⁷⁶ They know what they know, and they like what they like, and what they know and like is in large part a product of whom they trust.⁷⁷ Something similar can be said about when they are willing to learn, and from whom. Suppose that you are in a community of people who think that the Warren and Burger Courts were, in many respects, an enduring model for judicial behavior, that the modern administrative state is legally secure, that Roe v. Wade⁷⁸ was clearly right, and that originalism is foolish and hopeless. If that is what you were taught, and if that is what you believe, historical work questioning the decisions of the Warren and Burger Courts, and suggesting that Roe v. Wade is indefensible on originalist grounds, might not interest you at all, and you might not bother to try to understand it.

Even academic work that appeals to your own theoretical premises, but that suggests that your own deepest commitments are wrong, might not end up high on your reading list. Something similar might be true of originalists who are told that the nondelegation doctrine rests on weak historical foundations or that the president lacks unrestricted removal authority. If so, we are not speaking of a simple absence of information, or of materials that happen not to have happened on the judicial viewscreen. We are speaking of an absence of information that is founded on a judgment, rational whether or not correct, about what is worth reading.

Of course these points are generalizable. They apply not only to American judges, but also to politicians in all nations, and to citizens engaged or not-so-engaged with politics. They even apply to scientists. They help to explain the existence of epistemic communities of various sorts, and help to identify some of the foundations of polarization.

VII. EPISTEMIC COMMUNITIES, 2: BAYESIANISM

Let us indulge, for a moment, the assumption that some of that research is, in fact, known to relevant judges,⁷⁹ and that it nonetheless has little or no effect. Why?

Any explanation would be speculative, but two accounts, drawn from broader research on when people do and do not change their minds, seem plausible.⁸⁰ Both accounts are related to the idea of epistemic communities, and they are connected with the idea of optimal search. The first account is Bayesian; it involves rational updating with respect to relevant probabilities.⁸¹ The Bayesian account helps explain why an epistemic community might be difficult to move. It also helps explain why disparate epistemic communities might arise in constitutional law. Consider this phrase, often heard among judges and lawyers: “That has to be right.” What does that phrase mean? It often means that in light of one’s prior convictions, “that,” as opposed to “not-that,” has an exceedingly high probability of being true or correct.

The second involves motivated reasoning; people (including judges) believe what they want to believe, and it is difficult to convince them to change their minds if they do not want to change their minds. Here again, we can understand the apparent intransigence of epistemic communities. In sketching these points, I make no claim to originality; my hope is that identifying and separating them might be helpful in understanding why and when historical evidence will have little or no impact in law. Both accounts help explain the tribalization of constitutional law, and the bafflingly clear relationship between a given view on one or both of the issues here and one’s political or ideological orientation, broadly speaking.

Begin with rational updating. With respect to delegation:

Suppose that it seems provisionally clear that the founding document simply must contain some kind of nondelegation doctrine. Suppose that this is what you were taught by those whom you most trust. Suppose that this belief is a kind of bedrock. Suppose that the very separation of legislation from execution, made plain in Article I and Article II, produces an exceedingly strong inference: Congress cannot grant open-ended authority to the executive. The reason is that if it did so, legislative and executive power would no longer be separated, and the separation of powers would collapse.⁸² If one believes that, then any historical work — purporting to demonstrate that in terms of the original meaning, a grant of open-ended authority would be unobjectionable — would be presumptively unconvincing. Such work would seem daft (or motivated). It would be a little like saying that dropped objects do not fall or that the Holocaust did not happen. To say the least, it would have to meet a singularly heavy burden of justification. If one reads it, it is with a singularly skeptical eye.

Relative or even incomplete silence in the convention or ratification debates could not possibly meet the relevant burden. One might update one’s belief a bit, but without a significant shift in one’s judgment that a nondelegation doctrine was part of the original public meaning of Article I. The prohibition on delegation of open-ended authority simply went without saying; why would it be necessary to say or discuss something that it is self-evident? So too, early acts of Congress, seeming to give broad authority to the executive, do not prove much at all. In context, the grants of authority might not have been nearly as open-ended as they might now seem.⁸³ Or they might have involved a grant of authority to the president in domains in which the Constitution recognized a kind of presidential primacy.⁸⁴ In any case, some or many of the early acts might have been unconstitutional. Stranger things have happened. And recall that nondelegation doctrine was not exactly absent from founding era debates.⁸⁵ James Madison believed in the doctrine, and his views may deserve pride of place.⁸⁶

With respect to removal:

If anything is clear, this is: The Constitution vests executive power in a president of the United States,⁸⁷ and it requires him to take care that the laws be faithfully executed. The executive power is not vested in the Secretary of State, the Secretary of the Treasury, the Attorney General, or the Consumer Product Safety Commission. In that light, it would be singularly odd to say that high-level officials can stay on the job even though the president wants them to leave. If one begins with those convictions, any historical evidence, purporting to show that Congress can immunize such officials from presidential removal, would seem implausible, even bizarre.⁸⁸ At the very least, it would have to meet a heavy burden of justification.

Everyone knows that the Decision of 1789 was real,⁸⁹ and it was straightforward enough: The president was given unlimited removal power.⁹⁰ In that light, new evidence, showing that members of Congress had different and competing views and that in the early decades, some officers might have been given some protection from removal,⁹¹ is not exactly shocking, and cannot possibly shake the basic conclusion. Recall that Congress itself has an institutional interest in aggrandizing its own power at the expense of the president. To be sure, new historical evidence might produce a little updating in one’s subjective probability judgment with respect to presidential authority, but only a little; one would still believe, with very high probability, that the removal power cannot be limited.

To the extent that rational updating accounts for judicial rejection of historical evidence, those who provide such evidence might be inclined to despair. What can one do with an epistemic community that is essentially closed?⁹² Those inclined to despair might ask: Might this be a kind of cult? But let us step back from the most extreme examples. Just as rational people are unlikely to be willing to believe apparent evidence that dropped objects do not fall, or that the Holocaust did not happen, so might rational people be skeptical about evidence that purports to establish a proposition about constitutional law that they essentially know, or think they know, to be false. Still, despair would be excessive. For those who want to establish a proposition that runs up against entrenched judicial convictions about some proposition of fact or law, including the original public meaning, the task is simple: produce overwhelming evidence, sufficient to dislodge those convictions. Here too, stranger things have happened.⁹³

VIII. EPISTEMIC COMMUNITIES, 3: MOTIVATED REASONING

Why do people change their beliefs? Why are they sometimes intransigent? Thus far my emphasis has been on rational updating; if one firmly believes that X is true, it is rational to demand a great deal of evidence before concluding that X is false. But a great deal of work explores the idea of “motivated reasoning.”⁹⁴ The basic idea is that people believe what they want to believe. If we focus on epistemic communities in constitutional law, the line between rational updating and motivated reasoning might start to become thin. A community that is intensely committed to a particular belief might view a supposed counterargument not only with skepticism but also with venom and scorn. Still, the distinction is both important and real.⁹⁵

For illustration (admittedly far afield from our current topics⁹⁶), here is a dialogue, from the actual writing of The Return of the Jedi, involving George Lucas, the mastermind behind Star Wars, and his great collaborator Lawrence Kasden:

Kasdan: I think you should kill Luke and have Leia take over.

Lucas: You don’t want to kill Luke.

Kasdan: Okay, then kill Yoda.

Lucas: I don’t want to kill Yoda. You don’t have to kill people. You’re a product of the 1980s. You don’t go around killing people. It’s not nice.

Kasdan: No, I’m not. I’m trying to give the story some kind of an edge to it… .

Lucas: By killing somebody, I think you alienate the audience.

Kasdan: I’m saying that the movie has more emotional weight if someone you love is lost along the way; the journey has more impact.

Lucas: I don’t like that and I don’t believe that.⁹⁷

Note Lucas’ closing comment: “I don’t like that and I don’t believe that.” Not liking precedes, and perhaps accounts for, not believing. The basic idea is that if people do not like believing something, they are less likely to believe it. According to a standard account of motivated reasoning, “people do not reason like impartial judges, but instead recruit evidence like attorneys, looking for evidence that supports a desired belief while trying to steer clear of evidence that refutes it.”⁹⁸ What is noteworthy here is that this account, not involving law, makes an explicit distinction between “impartial judges” and “attorneys,” and suggest that people act more like the latter than the former, even when they are confronted with new evidence.⁹⁹ Actual judges might sometimes be like that as well. (The same is true for participants in political processes more generally; consider debates over climate change and immigration).

A distinctive form of partiality, also with evident legal resonance, involves allocation of the burden of proof. If people are considering a claim that they would greatly like not to believe, “people tend to ask themselves something like ‘Must I believe this?’”¹⁰⁰ It is worth pausing over that suggestion. If one asks oneself whether one “must” believe something, the usual answer is a firm no, because “some contradictory evidence can be found for almost any proposition.”¹⁰¹ For the two issues under discussion here, there is certainly some evidence on both sides.

A common source of motivated reasoning, of self-evident relevance to constitutional law and politics, is confirmation bias: People tend to believe things that are consistent with their antecedent beliefs.¹⁰² Confirmation bias can involve rational updating,¹⁰³ in which case it need not be seen as a bias at all. I will not credit information supposedly suggesting that Richard Thaler and Bob Dylan did not deserve the Nobel Prize, because I believe that I have a great deal of information suggesting that both of them deserved the Nobel Prize, which means that I will rationally dismiss apparently disconfirming information. But when confirmation bias is motivated, it is because it is unpleasant to learn that one was wrong, and people do not want to believe that they were wrong.¹⁰⁴ We can easily imagine that if judges begin with a firm conviction that nondelegation doctrine has solid historical roots, and then receive information suggesting that the doctrine lacks such roots, confirmation bias will immediately affect their reception of the apparent evidence – and make them inclined to ignore or dismiss it.

A more recent and highly relevant finding involves “desirability bias.”¹⁰⁵ The basic idea is that people tend to believe what they find it desirable to believe. It is tempting to identify desirability bias with confirmation bias, but they are different. You might believe that you are mortal but not find that desirable; confirmation bias suggests that you will be inclined not to believe a claim that immortality is around the corner, whereas desirability bias suggests that you will be inclined to believe that same claim. We can easily imagine information (in constitutional law and elsewhere) that is disconfirming but desirable, even wonderful, and we could also easily imagine information that is confirming but undesirable, even horrifying. In the face of conflict between confirmation bias and desirability bias, which bias is more powerful? In general? In law? Some evidence suggests that desirability bias wins out,¹⁰⁶ but any generalization is likely to be treacherous.¹⁰⁷

Suppose that judges find the implication of certain historical research undesirable – for example, because it leads to the conclusion that racial segregation is acceptable, that affirmative action is impermissible, that the national government can ban blasphemy without violating the First Amendment,¹⁰⁸ that open-ended grants of discretion are acceptable, or that Congress has the authority to restrict the president’s removal authority. If so, they will not be inclined to believe it. And indeed, forms of constitutional tribalism, showing divisions on matters of historical fact, can plausibly be attributed, at least in part, to desirability bias.¹⁰⁹

For those who seek to convince judges of a proposition that they do not want to believe, the natural reaction might again be one of despair. It would be useful in that connection to recall the advice that the late Archibald Cox, former Solicitor General as well as law professor, used to give to those asking about how to persuade the Supreme Court of the United States: “First you have to get them to want to agree with you. Then you have to show them how.” Cox was speaking of motivated reasoning. What he mentioned first was “want”; “how” followed. With respect to the issues discussed here, there is a great deal of “how,” and perhaps less in the way of “want.” Attention to the want question – by emphasizing, for example, how the goals of the nondelegation doctrine might be achieved through other means¹¹⁰ – might be a good place to start.¹¹¹

IX. EPISTEMIC TEAMS

The frequent impotence of careful historical research is hardly limited to the area of the separation of powers.¹¹² The modest or nonexistent impact of painstaking historical work on nondelegation and the removal power is mirrored in many other domains, attesting to the tribal nature of constitutional law, even on basic questions of historical fact.¹¹³ This point raises challenges for some of the most appealing goals of the originalist project, which is designed, in large part, to discipline the exercise of judicial discretion by turning to history rather than abstract values, and thus to promote the rule of law.¹¹⁴

Judges have limited time and attention;¹¹⁵ they must rely on briefs; they do not know, and cannot be expected to know, all relevant historical research, or all of the most recent findings. Recall that like everyone else, they are not Large Language Models. They do not and cannot know everything; they must try to engage in optimal search.¹¹⁶ Like everyone else, they are part of epistemic communities, with predictable patterns of trust and distrust, and with the goals of expanding the ranks of their communities and of defeating competing communities. And if judges can be sorted into relevant teams, even on questions of historical fact – Team Nondelegation vs. Team Myth of Nondelegation, Team Campaign Expenditures Are Political Speech vs. Team Money Is Not Speech At All, Team Individual Gun Rights vs. Team Militia, and so forth – some of the central aspirations of originalism might be seen to be in jeopardy. Nonetheless, we may hope that some people will, over time, be seen to switch sides, at least if the evidence is indeed overwhelming.

Indeed we can go further. Epistemic communities include those who embrace identifiable constitutional methods. Team Originalism and Team Common Good Constitutionalism,¹¹⁷ Team Thayerism¹¹⁸ and Team Moral Readings,¹¹⁹ Team Minimalism¹²⁰ and Team Democracy Reinforcement¹²¹ – each of these operates, at least some of the time, as an epistemic community. Of course members of such communities are in contact with one another, but far less often than would be ideal. There are private law analogues.¹²² The public also consists of epistemic communities, even on questions of law. Of course the public includes people with different levels of focus and expertise: law professors and lawyers, informed journalists, advocacy groups of various sorts, political activists, interested observers, uninterested observers. Information about constitutional issues will flow, in way or another, from and to such groups, and it will flow from some of those groups back to judges as well. There are feedback loops, sometimes helping to entrench and divide epistemic communities.

My emphasis has been on American constitutional law, but as I have suggested, the underlying mechanisms are general, even if they manifest themselves in different ways. Participants in politics engage in optimal search, and epistemic communities are sometimes created for that reason; consider the issue of immigration. When such communities form, it is often because of rational updating, as people credit different sources of information, depending on their priors; consider the issue of climate change.¹²³ Motivated reasoning in general, and desirability bias in particular, play a central role in fueling polarization on questions of law and politics (id.). Epistemic communities form, and become entrenched, as a result of these mechanisms.

However we might think about the largest questions, some things are clear. The relative judicial silence that has greeted relevant separation of powers research is remarkable. It needs an explanation. Any such explanation must point to the existence of epistemic communities and to the relative intransigence of their members. That intransigence is, of course, a problem in many domains of law and politics; it extends far beyond the area of the separation of powers. Solving that problem should be a singularly high priority.

ACKNOWLEDGMENTS

I am grateful to William Baude, Stephen Breyer, Jack Goldsmith, Stephen Sachs, and Lawrence Solum for valuable discussions and comments, and to David Olin and Victoria Yu for superb suggestions and research assistance. I am also grateful to participants in a superb legal theory workshop at the University of Pennsylvania Law School.

COMPETING INTERESTS

The author declares that he has no competing interests.