How much of constitutional meaning is fixed by the past, and how much is inevitably shaped by judges, precedent, and evolving standards of fairness?
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1. Guest
Brian Bix is Frederick W. Thomas Professor of Law and Philosophy at the University of Minnesota, and his work has focused on legal philosophy, contract law, family law, and the philosophy of language.
2. Interview Summary
In this interview, Brian Bix explains why debates about constitutional interpretation quickly turn into debates about what legitimate legal decision-making should look like. He sketches the shift from older “original intent” views to “public meaning” originalism, and notes that very general constitutional language (e.g., equality, due process) can be read as a delegation to later judges to apply their best current understanding—making the line between originalism and “living constitution” approaches thinner than it’s sometimes presented. Larry Solum’s interpretation/construction distinction comes up as a way to say you “start with meaning” but may need additional materials (like precedent or avoiding absurd results) to get to an all-things-considered legal outcome. He also emphasizes that legal language in a normative setting often behaves differently than in ordinary semantics—“no” and “never” typically function more like strong presumptions with principled exceptions (war memorials, emergency vehicles, etc.), despite the temptation to read them as absolute.
A major theme is how messy “truth in law” becomes once you mix vagueness, institutional authority, and the possibility of judicial mistake. Bix argues it’s coherent (even if often implausible) to say that everyone for centuries was wrong about what an authoritative text requires—he uses the idea of constitutional “discoveries” and shifting understandings (e.g., equality) to motivate that point. At the same time, he stresses that authoritative court decisions can make something function as “the law of the land” even when we later judge the decision deeply mistaken; the result can be that a legal claim feels “both true and false” depending on whether you’re tracking best interpretation or final institutional say-so (illustrated with Plessy). This connects to Ronald Dworkin: if you think every disputed legal question already has a determinate right answer, you’ll treat many pre-decision propositions as straightforwardly true/false; but many lawyers and philosophers instead treat hard cases as unsettled until (and sometimes even after) a supreme court resolves them. He then discusses the “Radbruch formula” as best read primarily as a prescriptive stance about what judges should do in the face of extreme injustice, rather than a clean piece of conceptual analysis that refutes positivism by definition.
The interview closes by shifting from constitutional theory to contract law and a broader methodological caution: many sweeping “theories of contract/tort/property law” are implicitly presented as universal, even though their authors often know one (or at most a couple) jurisdictions well—and even then may not know how the doctrine actually operates in day-to-day practice. Bix likens this to the “WEIRD sample” worry in psychology and uses the ultimatum game to show how strongly results can depend on which subpopulation you’re generalizing from; likewise, legal categories and remedies vary significantly across systems, so global claims need either much more comparative grounding or a clear argument for why one structure is the “real” essence (as in theories like corrective justice in tort or promise-based views of contract). Still, he resists overcorrecting: there are real convergences across jurisdictions because legal systems respond to similar pressures (reliance, exchanges, commercial stability), so theorizing can be valuable as long as it’s modest about scope. He ends by defending the practical value of legal philosophy as a way of training lawyers to think critically and live more reflectively about what they’re doing inside institutions—while drawing on multiple critical perspectives (e.g., feminist legal theory, critical race theory, law & economics) to evaluate what law is for and how it should change.
3. Interview Chapters
00:00 - Introduction
01:04 - Originalism and Stanley Fish
06:32 - Vagueness in law
09:33 - Legal deference
11:15 - Semantic deference vs. instruction
16:56 - Meaning as public
18:15 - Textual interpretation and current law
20:17 - Meanings and norms
23:21 - Vagueness in language
25:05 - Approach to law
29:46 - Global error and legal truth
34:05 - Legal contradictions
39:51 - True contradictions in law?
47:23 - Conceptual analysis
51:47 - Illegitimate laws
55:06 - Double life of laws
58:47 - Universal theories in law
1:01:41 - Problematic studies
1:03:29 - Generalizing to past and future
1:08:53 - Understanding contract law
1:13:09 - Use of general theories
1:14:32 - Value of philosophy
1:16:49 - Conclusion
