Timothy P. O’Neill (John Marshall Law School) has posted Scalia’s Poker: Puzzles and Mysteries in Constitutional Interpretation (Constitutional Commentary, Vol. 24, No. 3, Forthcoming) on SSRN. Here is the abstract:
This paper applies the recently-developed political science dichotomy of puzzles and mysteries to constitutional law. A puzzle can be definitively answered by gathering information about events that have already occurred. It is transmitter-dependent, since its solution depends on what information is received.
A mystery, on the other hand, cannot be answered with certainty even in principle. The solution may depend on events which have not yet occurred. It is receiver-dependent, since its solution will depend on the skill of the person evaluating the information received.
In law, the meaning of a constitutional provision such as the Due Process Clause may be viewed as either a puzzle or a mystery. Moreover, justices such as Antonin Scalia and Stephen Breyer may be said to view all constitutional interpretation as either a puzzle or a mystery, respectively.
The paper contends that, in terms of Isaiah Berlin’s famous characterization, puzzle justices may exhibit hedgehog-like behavior, while mystery justices may be more fox-like. The paper concludes by examining what the impact of this may be on relations within a collegial court.