Andrew Jordan

What is a burden on interstate commerce? That’s an important question under the Dormant Commerce Clause’s Pike balancing test. But it’s a question whose answer has proven elusive. This shouldn’t be a surprise. After all, states disagree about what counts as a burden or a benefit, and how much weight each has. And there aren’t any obvious constitutional principles we can point to for resolving those disagreements. Recently, some scholars have tried to ground dormant commerce doctrine in economic cost–benefit analysis. The supposed virtue of that approach is that it is neutral as to competing preferences. Thus, for the Court to subject state laws to a cost–benefit test would preserve a kind of judicial neutrality that a bald evaluative assessment would not. But cost–benefit analysis isn’t nearly as neutral as its proponents assume. Indeed, it involves a controversial, and arguably misguided, evaluative outlook that we should be hesitant to constitutionalize under the Commerce Clause. Still, I claim that there may be a limited role for Pike balancing, or something like it, in a narrow range of cases involving functional kinds with an uncontroversial telos such as trains and trucks. But even there, we should avoid the unhelpful abstraction of a “burden on interstate commerce.” Could Pike be defended as a proxy for other constitutional values? I argue that Pike fails even that test. Thus, it is far past time to retire Pike.

Some constitutional theorists have started looking to jurisprudential accounts of the nature of law for help in resolving disputes in constitutional theory. Most prominent is the “positive turn” defended by William Baude and Stephen Sachs. According to Baude and Sachs, ongoing debates in constitutional theory can be resolved by looking to positive law—that is, to the convergent social practices of legal officials. As a result, they claim that we can avoid the normative debates that have traditionally occupied constitutional theorists. Here, I argue that any attempt to settle substantive debates in constitutional theory via jurisprudential accounts of the nature of law will face two problems. First, they will run the risk of double counting—of treating legality itself as providing additional reasons over and above those earned by the theory’s criteria of legality. Second, they risk a kind of illicit bootstrapping by claiming normative upshots supposedly inherent in legality itself that aren’t traceable to the theory’s criteria of legality. Normative constitutional theorists have traditionally aimed to provide an account of sound adjudication. That is a worthy project. But such theorists must defend their views based on their underlying normative credentials. One cannot avoid that burden by turning to legal metaphysics.

Most constitutional theorizing aims to specify the meaning or content of the Constitution. Constitutional content, in turn, is assumed to have implications for sound constitutional decisionmaking. In this Article, I argue that the search for a general theory of constitutional content rests on a mistake. Sound constitutional decisionmaking, I argue, does not rest on a prior account of constitutional content. In defending this conclusion, I argue that sound constitutional decisionmaking is pluralistic, open-ended, and context-dependent. Those features of sound constitutional decisionmaking are at odds with any attempt to specify a general theory of constitutionality that could guide constitutional decisionmakers. On the positive view defended here, constitutional decisions are constitutional not because they arise out of some independent source that makes things constitutional, be it text, structure, precedent, or some other thing. They are constitutional because they involve practical reasons that arise within the social practice of American constitutional law.

Many contract theorists argue that contracts are promises. This view is appealing because it can justify the institution of contract law—contract law allows parties to vindicate their promissory rights. But contract-as-promise advocates have seriously misunderstood how promises work. They assume a cartoon version of promises, one that is overly abstract, individualistic, and is singularly fixated on the obligation to do what one promised. Such theorists have failed to adequately attend to other important dimensions of promises: How stringent is the promise? Under what conditions is a person obligated to perform? How is an agent entitled to respond to a breach? How should a promisee respond to a request for release? When should a promisee agree to renegotiate? These features of promissory morality vary radically across different kinds of human relationships—e.g., marriage, friendship, employment, parenting, and commercial bargains. This is an important result for contract theory. Courts routinely invoke the idea of a general, uniform set of contract principles applicable to all contracts. But if promissory morality doesn’t justify applying uniform contract principles across different contracting relationships, then likely nothing does. We should thus liberate ourselves from the idea of general contract principles and embrace a kind of contractual pluralism.

In 2018, California passed a law prohibiting the in-state sale of any pork that was raised inhumanely. This law was quickly challenged by the pork industry on the grounds that it unduly burdened interstate commerce under the Supreme Court’s Pike balancing test. In a fractured decision that pitted animal welfare concerns against the economic interests of out-of- state pork producers, the Supreme Court upheld California’s animal welfare law. Justice Neil Gorsuch, writing for a plurality of the Court, invoked a common objection to Pike balancing: It requires the impossible—the balancing of incommensurable goods (here, animal welfare and economic benefits). As Justice Scalia once quipped, Pike balancing is like asking whether a particular line is longer than a particular rock is heavy. But I argue that invoking “incommensurability” as a reason to reject Pike says far too much. It implicitly weighs in on a highly contentious debate in moral theory about the incommensurability of different values. And it implies that much state legislation is arbitrary. I argue that there is a better reason to reject Pike’s balancing test. The real problem with Pike is that it undermines a state’s ability to choose among otherwise constitutionally permitted moral frameworks. Nothing about the Commerce Clause can plausibly be construed as imposing that kind of limit.

In a series of important papers, Justin D’Arms and Daniel Jacobson argue that all extant neo-sentimentalists are guilty of a conflation error that they call the moralistic fallacy. One commits the moralistic fallacy when one infers from the fact that it would be morally wrong to experience an affective attitude—e.g., it would be wrong to be amused—that the attitude does not fit its object—e.g., that it is not funny. Such inferences, they argue, conflate the appropriateness conditions of attitudinal responses with the fittingness conditions of the associated evaluative properties. Further, they argue that moral considerations are irrelevant for determining if amusement fits its object. We agree that a strong moralizing of humor is wrongheaded and that jokes can be quite funny even in cases where we have a compelling moral reason to not be amused. However, we argue that pace D’Arms and Jacobson moral considerations can be relevant for property ascription. On our view, in order for a joke to be funny, a properly sensitive agent must take herself to have a contributory reason to be amused, and in some cases that she lacks such a reason is best explained by appeal to moral considerations. We use this constraint as the basis of what we call our modest proposal for a modest sentimentalism

In this essay, I argue that the role for exclusionary reasons in a sound account of practical rationality is, at most, much more circumscribed than proponents of exclusionary reasons might suppose. Specifically, I argue that an attractive account of moral motivation is in tension with the idea that moral reasons can be excluded. Limiting ourselves to the tools of first order moral reasons—including such relations as outweighing, and disabling—allows us to preserve a more attractive account of the relationship between what there is strongest reason to do, what one is motivated to do, and that for which one is praiseworthy or blameworthy. In closing, I argue that we can capture the normativity associated with legal decision-making using only the resources of the first-order model.

Recently, Walter Sinott-Armstrong and Justin Snedegar have argued for a general contrastivist theory of reasons. According to the contrastivist account of reasons, all reasons claims should be understood as a relation with an additional place for a contrast class. For example, rather than X being a reason for A to P simpliciter, the contrastivist claims that X is a reason for A to P out of {P,Q,R…}. The main goal of this paper is to argue that the contrastivist account of reasons will be ill-fitted for accommodating certain features of moral reasons. In brief, the reason why the contrastivist analysis fails is that it cannot adequately allow for cases of morally correct whole-hearted action—cases where consideration of any alternate course of action would be misguided. But, if all consideration of alternate courses of action is misguided, then it is hard to see how one can set the relevant contrast class that is essential to the contrastivist view—any contrast class will seem out of place. In addition, I address some of the arguments that have been given in favor of the contrastivist account of reasons and argue that there are at least two ways that the non-contrastivist can respond to these arguments

In a series of papers, Stephen Kearns and Daniel Star defend the following general account of reasons: R: Necessarily, a fact F is a reason for an agent A to Φ iff F is evidence that an agent ought to Φ.In this paper, I argue that the reasons as evidence view will run afoul of a motivational constraint on moral reasons, and that this is a powerful reason to reject the reasons as evidence view. The motivational constraint is as follows: M: For some consideration C to be a moral reason for an agent to Φ it must be possible for C to figure as part of the agent’s motivation for Φing without thereby undercutting (either partially or wholly) the positive moral evaluation of the agent in acting as she does.M presents a problem for Kearns and Star’s view because there will be cases where some consideration is evidence that an agent ought to Φ, but where if an agent was motivated by that consideration the agent’s action would thereby be worse from a moral perspective for that very reason. Further, I argue that this problem will likely arise on any moral theory that evaluates the motivation of an agent as a component of assessing the moral status of acts

Some particularists have argued that even virtue properties can exhibit a form of holism or context variance, e.g. sometimes an act is worse for being kind, say. But, on a common conception of virtuous acts, one derived from Aristotle, claims of virtue holism will be shown to be false. I argue, perhaps surprisingly, that on this conception the virtuousness of an act is not a reason to do it, and hence this conception of virtuous acts presents no challenge to particularist claims about the context variance of reasons. Still, I argue that the virtues nevertheless have important implications for our understanding of the particularism debate. Specifically, we can accept the particularist claim that reasons do not need to be principled in order to have the normative status that they do have, while still maintaining that sound moral thought and judgement has a principled structure understood in terms of the virtues