First-, Second-, and Third-Order Reasons in Legal Institutions, with First Amendment Examples

*William Nelson Cromwell Professor of Law emeritus, Harvard Law School.Show More

Introduction

Suppose a group wants to hold a demonstration in a public park. Would the world be better off if they did? First-order reasons go into answering that question. How much would the demonstration disrupt the park’s use for relaxation and recreation? Would the demonstration attract supporters and opponents who are likely to cause violence either independently or because they are at each other’s throats? Could the demonstrators get their message across in some other way?

We can proliferate questions like these—and worry about whether some questions ought to be irrelevant. Should we take into account the importance of the demonstrators’ purposes? (Are they demonstrating to show support for the Flying Spaghetti Monster [look it up] or against the nation’s immigration policies?) Should we take into account the fact, if it is one, that some people in society are offended by simply knowing that other people have the demonstrators’ views?

At the end of the day, we will decide whether, all things considered, the world would be better off or worse off were the demonstration to occur.

Who, though, is the “we” of whom I speak? One possibility is that the “we” is you and me, ordinary people who read about the proposed demonstration in their social media feeds. This Essay deals with an institutional “we,” some body charged with making a decision about allowing the demonstration to go forward or not. And not merely “some” body, but a particular one. Among the candidate institutions for making the “is the world better off?” decision are these: the head of the city’s parks department, the city’s police chief, the city council, and a court. And not merely “a” court, but a supreme court.

Most of the Essay treats the police chief, the city council, and the other candidate institutions as frontline actors whose initial decisions are subject to control by an ultimate decision-maker, the supreme court. “Control” means that the ultimate decision-maker (“the UDM”)—for expository purposes, the supreme court—can get the initial decision-maker to comply with the UDM’s judgment about what makes the world better off according to its criteria for “makes the world better off.”¹ 1.The criteria could be consequentialist or deontological. Many of the examples I give in this Essay are consequentialist in form. That is because I am basically a consequentialist and because exposition of the argument is easier if we give “makes the world better off” a consequentialist reading. But, analytically, swapping in deontological formulations would not affect the analysis. For additional discussion of what “get to comply” means, see infra Part II.Show More

It is important for my purposes that the “is the world better off?” judgment is not a free-floating or “God’s eye” normative judgment. Rather, it is an institutional judgment: In the view of the ultimate decision-maker, would the world be better off with or without the demonstration?

Were the UDM to make that judgment—were it to be both the frontline and the ultimate decision-maker—it would make an all-things-considered (“ATC”) assessment of first-order reasons. In many—probably pretty much all—real-world settings, though, the UDM reviews decisions made by a frontline decision-maker.² 2.See Mark Tushnet, Who Am I to Judge?: Judicial Craft Versus Constitutional Theory 84 (2025).Show More And that institutional feature introduces the need for second-order reasons.³ 3.The term “second-order reasons” has been used in other ways in scholarship related roughly to this Essay’s topic. See, e.g., James D. Nelson & Micah Schwartzman, Second-Order Decisions in Rights Conflicts, 109 Va. L. Rev. 1095, 1105 (2023), which, as I read it, uses the term to identify reasons that improve “God’s eye” normative judgments independent of any institutional locus. See also infra note 66 (discussing my prior use of the term).Show More Second-order reasons are typically rules that screen out from the frontline decision-maker’s consideration first-order reasons that are rationally relevant to an all-things-considered “God’s eye” (that is, noninstitutional) assessment.⁴ 4.See Joseph Raz, Practical Reason and Norms 39–40 (Oxford Univ. Press 1999) (1975); see also infra note 17 for a brief discussion of the similarity to and difference from Joseph Raz’s argument that rules issued by “practical authorities” exclude relevant considerations from a decision-maker’s purview.Show More

The next Part of this Essay asks, “Why on earth would you try to prevent a decision-maker from taking a relevant first-order reason into account?” The answer is that doing so in the right way increases the number of occasions on which the world is made better off by the ultimate decision-maker’s lights. The analysis is almost entirely unoriginal, though perhaps I emphasize some things more than other scholars have.⁵ 5.I am reasonably sure that everything I say in Part I is anticipated in Fred Schauer’s work, beginning with Frederick Schauer, Free Speech: A Philosophical Enquiry 42–43 (1982). See alsoAdrian Vermeule, Mechanisms of Democracy: Institutional Design Writ Small 159–60 (2007) (explaining, through Chevron, the benefit of second-order interpretation), and more obscurely, Giulio Itzcovich, On the Legal Enforcement of Values. The Importance of the Institutional Context, in The Enforcement of EU Law and Values: Ensuring Member States’ Compliance 28, 32–36 (András Jakab & Dimitry Kochenov eds., 2017) (describing normative theories of legal interpretation).Show More

Part II turns to what I believe to be unexplored territory.⁶ 6.Though I might well have overlooked relevant scholarship.Show More Suppose that the city’s police chief takes direction from the city council, which has enacted an ordinance prescribing conditions for granting permits to use the park for demonstrations. Complying with that ordinance, the police chief denies a permit. Litigation ensues, and when the smoke clears, the supreme court tells the police chief to issue the permit, which she does. That action does not in itself wipe the ordinance off the books.⁷ 7.In terms used in some jurisdictions, the supreme court disapplies the ordinance but does not invalidate it (perhaps because applying the ordinance in other circumstances would make the world better off as the supreme court sees things). See Adam Perry, Why Constitutional Conventions Aren’t Laws (Hint: It’s Not Why You Think) (Feb. 27, 2018), https://adamdper‌ry.com/2018/02/27/why-constitutional-conventions-arent-laws-hint-its-not-why-you-think/ [https://perma.cc/T7FT-6YN2].Show More The supreme court might think, though, that the world would be a better place if the ordinance had not been enacted in the first place (so that the police chief would not have had the authority to prevent the demonstration), and it believes that the reasons the city council had for enacting it were rooted in the incentives its members had. The supreme court might try to develop what I call third-order reasons to take those incentives (and thereby those reasons) into account when generating its second-order rules.⁸ 8.See infra Part II.Show More To bring the analysis to ground, I narrow the scope of the inquiry: legislators might act because of public-choice-type reasons (self-interested voters mobilize differentially to support or oppose legislators whose actions advance the voters’ private ends) or because of republican, public-interest reasons.⁹ 9.See Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law 100–03 (2015).Show More Third-order reasons might be deployed to improve the operation of a public-choice-based legislative process.

I conclude by briefly pulling together some strands of the Essay’s argument that suggest—only suggest, not establish—that the ideal of the rule of law to which Schauer and many others are committed is unachievable in the real world of complex institutions and bodies of law.

1.  The criteria could be consequentialist or deontological. Many of the examples I give in this Essay are consequentialist in form. That is because I am basically a consequentialist and because exposition of the argument is easier if we give “makes the world better off” a consequentialist reading. But, analytically, swapping in deontological formulations would not affect the analysis. For additional discussion of what “get to comply” means, see infra Part II. ↑
2.  See Mark Tushnet, Who Am I to Judge?: Judicial Craft Versus Constitutional Theory 84 (2025). ↑
3.  The term “second-order reasons” has been used in other ways in scholarship related roughly to this Essay’s topic. See, e.g., James D. Nelson & Micah Schwartzman, Second-Order Decisions in Rights Conflicts, 109 Va. L. Rev. 1095, 1105 (2023), which, as I read it, uses the term to identify reasons that improve “God’s eye” normative judgments independent of any institutional locus. See also infra note 66 (discussing my prior use of the term). ↑
4.  See Joseph Raz, Practical Reason and Norms 39–40 (Oxford Univ. Press 1999) (1975); see also infra note 17 for a brief discussion of the similarity to and difference from Joseph Raz’s argument that rules issued by “practical authorities” exclude relevant considerations from a decision-maker’s purview. ↑
5.  I am reasonably sure that everything I say in Part I is anticipated in Fred Schauer’s work, beginning with Frederick Schauer, Free Speech: A Philosophical Enquiry 42–43
   

   (1982).

   See also Adrian Vermeule, Mechanisms of Democracy: Institutional Design Writ Small

   159–60 (2007)

   (explaining, through Chevron, the benefit of second-order interpretation), and more obscurely, Giulio Itzcovich, On the Legal Enforcement of Values. The Importance of the Institutional Context, in The Enforcement of EU Law and Values: Ensuring Member States’ Compliance 28, 32–36 (András Jakab & Dimitry Kochenov eds., 2017) (describing normative theories of legal interpretation). ↑

6.  Though I might well have overlooked relevant scholarship. ↑
7.  In terms used in some jurisdictions, the supreme court disapplies the ordinance but does not invalidate it (perhaps because applying the ordinance in other circumstances would make the world better off as the supreme court sees things). See Adam Perry, Why Constitutional Conventions Aren’t Laws (Hint: It’s Not Why You Think) (Feb. 27, 2018), https://adamdper‌ry.com/2018/02/27/why-constitutional-conventions-arent-laws-hint-its-not-why-you-think/ [https://perma.cc/T7FT-6YN2]. ↑
8.  See infra Part II. ↑

9.  See Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law 100–03 (2015). ↑