Denigration as Forbidden Conduct and Required Judicial Rhetoric

Steven D. Smith, The Jurisprudence of Denigration, U.C. Davis L. Rev (forthcoming, 2014), available at SSRN.

Steven D. Smith has written another characteristically challenging paper. I fear that the paper, “The Jurisprudence of Denigration,” will be accepted without cavil by those who tend to disagree with decisions like United States v. Windsor or Lawrence v. Texas, and rejected without hesitation by those who champion those decisions. Either move would be unfortunate. This is a paper that says something important about the nature of modern constitutional and moral rhetoric surrounding hot-button social issues, and the uneasy position of judges and scholars as they attempt to find legally serviceable language with which to address social controversies in real time.

The paper’s argument has wide-ranging implications but is blissfully clear and simple. In Windsor, Justice Kennedy argued that section 3 of the Defense of Marriage Act was the product of “a bare congressional desire to harm a politically unpopular group”—that it came from a “purpose . . . to demean,” “injure,” and “disparage.” As Smith writes, “Justice Kennedy and the Court thereby in essence accused Congress—and, by implication, millions of Americans—of acting from pure malevolence.” This “extraordinary claim” forms part of a “discursive pattern” by judges and scholars that Smith calls “the discourse of denigration.” And it is wrong and dangerous. “Precisely contrary to its irenic and inclusivist intentions, by maintaining and contributing to that destructive discourse, the Supreme Court aggravates the conflict that is often described, with increasing accuracy, as the ‘culture wars.’”

At this point I can envision the supporters of Winsdor hastily yanking on the cord and seeking to get off the bus. But they should stick around, because Smith has some larger, interesting claims to make. Those claims do not require one to abandon support for Windsor or LGBT rights, but simply to ask how the Court gets there. Kennedy may have been arguing, Smith suggests, “that to disapprove of homosexual conduct is to declare or deem persons prone to such conduct to be in some sense lesser or inferior beings.” But that is a logical fallacy: “From the fact that a person is inclined to some behavior deemed immoral [by others], . . . it simply does not follow that the person is in any sense a lesser or inferior human being. And while those who disapprove of some behavior as immoral may believe that people who engage in the behavior are lesser human beings, they need not believe any such thing.” Even if supporters of DOMA and similar laws actually do regard gays and lesbians as “in some sense lesser human beings,” that still does not prove ineluctably that they are acting from a bare desire to harm those individuals.

Why, then, did Kennedy and the other Justices draw such a conclusion, in such strong language? The reason, Smith argues, lies in “the state of contemporary constitutional and moral discourse.” Constitutional discourse is famously plagued by a lack of consensus about the relevant factors that influence constitutional decision-making. The Court, rather than take a strong unanimous stand on these issues (as if it could!), tends to frame its decisions “as straightforward deductions from the text, or perhaps from the doctrines, eschewing acknowledgment of the extra-textual factors that may actually be causing the Justices to deploy the texts or doctrines in the way they do.” Because constitutional discourse is thus riven at a deep level and placidly technical on the surface, “the insufficiencies of constitutional discourse push us to consider the current state of moral discourse.”

At the level of moral discourse too, however, we find disagreement about basic premises, with “no way to achieve closure or resolution of the disagreements.” At this point, we search for some “common ground from which to reason.” And here, we find “widespread support” for one proposition: that “it is wrong to act from hatred or malevolence or ill-will toward others.” Hence passages like the one in Windsor: “If the one non-question-begging normative proposition that virtually everyone agrees on is that it is wrong to act from hatred or ill-will, then it follows that when debates over public issues occur, a potentially effective form of rhetoric will be to argue that your opponents are acting from . . . hatred or ill-will.”

The problem with this approach, Smith contends, is that, “paradoxically, [it] is at the same time morally elevating and yet conducive to an ugly and destructive moral discourse.” On the one hand, it appeals to a widely shared value, and does not depend on other premises that may be morally contestable among the (imagined) public audience for the Court’s opinions. On the other hand, the actual application of that ostensibly shared value involves accusing millions of Americans of acting for no reason other than “’animus,’ ill-will, bigotry, or a ‘bare desire to harm.’” As Smith writes: “It is hard to imagine a jurisprudence better calculated to undermine inclusiveness, destroy mutual respect, and promote cultural division.”

I find much about Smith’s analysis of the “discourse of denigration” perceptive and important, notwithstanding my views on the underlying issue. Doubtless those who oppose Windsor or same-sex marriage will now be applauding it. But they should perhaps hold their applause and dig deeper. Smith’s paper, it seems to me, raises questions of its own.

For one thing, he might consider that much legislation in the midst of a culture war, whether motivated by bare animus or not, is also not really motivated by any meaningful public policy interest. My own state of Alabama, which desperately requires serious policy reform on a variety of bread-and-butter issues, has spent much of the last couple of months passing essentially meaningless laws aimed at “protecting” Christianity, for instance—not because Christianity is under threat in this state, but because election primaries are coming up and its representatives want to shore up their credentials with voters by attacking a mostly imaginary adversary. That does not mean such laws are necessarily unconstitutional. (Although most of them unquestionably are.) But he might consider that in between laws designed to harm others and those designed to help or protect lies a distressingly common third category: laws designed to do little at all, except to stake out a symbolic and often hostile position in the culture wars. Perhaps the discourse of denigration is on the rise because essentially denigrating symbolic legislation is on the rise.

Another question that troubled me deeply at first is whether the paper does not engage in some denigrating discourse of its own. Ultimately, I think it does not, or not in the way that he is discussing. But there is little doubt that Smith’s language—for example, calling the Windsor passage “extraordinary in its offensiveness, its presumption, and its lack of evidentiary support,” and adding for good measure that it seems like “the sort of thing normally associated with irresponsible and scurrilous pseudonymous comments on marginal political blogs”—is unlikely to draw in those who most need to read the paper.

Those readers might be more prepared to read and ponder it if they put to one side what I see as occasional strong expressions of emotion by Smith, and think of the article more as an exploration of the problems with “public reason” approaches to constitutional jurisprudence, particularly when combined with “expressive” theories of constitutional law. They might ask what kinds of rhetorical strategies tend to follow from these approaches. To ask those questions hardly requires changing one’s mind about same-sex marriage or LGBT rights in general. But it does, perhaps, suggest that it would be better to reach those results through a direct debate over fundamental premises than by attempting to preemptively clear the ground of argument over those premises by rejecting their opponents as simply malevolent.

On the other hand, opponents of gay rights might ask (as we all should) whether any of their own rhetorical strategies rely on similarly denigrating rhetoric. (“War on Christians,” anyone?) And Smith himself, who I do not lump in with that group, might want to explore a broader question that is only hinted at here. He describes denigration as a “discursive pattern,” and says “Windsor was merely one manifestation of a serious deficiency in a larger judicial strategy.” But that strategy, at least in his telling, appears to be linked only to one kind of topic: “areas of profound and divisive controversy,” such as abortion and gay rights. As a nation, however, we may agree profoundly on many cultural issues that do not end up in court. Conversely, there are other divisive issues that do end up in court but whose resolution rarely depends on the discourse of denigration.

What, then, accounts for the important but limited terrain of the discourse of denigration? Is it possible that the discourse of denigration, even if it is wrong, is not fatal to our legal or political culture because it is likely to be time-limited? After all, as Smith notes, we use similar language in some of our race-oriented constitutional discourse, and it has arguably not achieved the same degrading or divisive effects—or at least, not once a vast majority of Americans came to believe that racial discrimination is unjustified and the remaining pockets of dissidents became ever more firmly identified as bigots. Once that happened, the divisive force of most constitutional discourse around race faded and much of the law in that area became ordinary doctrinal work. There are still exceptions on some issues. But no one today, as far as I know, considers Gomillion v. Lightfoot to be “offensive” or “presumptuous.”

Perhaps, then, the “discourse of denigration” that Smith worries about is likely to flower only in times of transition, as our national consensus on values first reaches a boiling point and then is more or less resolved. Perhaps he can rest easy knowing that once a national consensus on the fundamental rightness of same-sex marriage and gay rights has been reached, the doctrine itself will grow more forthright, less focused on the views of its increasingly marginal opponents, and altogether less controversial.

Somehow I do not think this will satisfy him; I’m not sure it should. In the meantime, we are in a period of hot contestation on some issues. It may be, as Smith says, that the discourse of denigration is the easiest or even the only rhetorical strategy available during such periods, and that no rehabilitation of constitutional law and theory could change that. But we can and should still be interested in the phenomenon itself, its causes and consequences. Smith’s paper provides an excellent and thought-provoking introduction to that subject.


Constructive Criticism

Curtis A. Bradley & Neil S. Siegel, Constructed Constraint and the Constitutional Text, Duke Working Paper (2014).

In their beautifully clear essay, Duke Professors Bradley and Siegel argue that the clarity of constitutional terms—when we glimpse it—is a result of hard work, however implicit. Clarity turns on construction, the effortful identification and deployment of what we decide are apt presuppositions. Seemingly easy cases of constitutional interpretation and enforcement are, Bradley and Siegel think, therefore of a piece with hard cases. At work just below the surface, we discover the same repertoire of devices that lawyers, judges, and academics use in dealing with ambiguities, gaps, anachronism, history, or similar vagaries: senses of purpose or structure, concern for consistency with established readings, popular understandings, and so on. Circa 1980s cls (critical legal studies) discussions of constitutional law were pretty much right in this regard. “It is important to ask not only whether and why American interpreters regard themselves as bound by text that they deem clear,” they write, “but also when they deem the text clear. Text is not merely a fixed structure to be built upon…rather it is also something that is itself partly constructed and reconstructed.”

Are Blue Devils now Red Devils? Bradley and Siegel think not. They believe they are just clearing out confusion about the role of constitutional texts in constitutional thinking. Some theorists posit that constitutional texts as such figure mostly marginally—for example, as focal points within a largely common law analysis (Bradley and Siegel cite David Strauss) or as initial frameworks (they discuss Jack Balkin). But if we understand our readings of constitutional passages as involving the same hard work whether we reach clear conclusions or end indecisively, we may rightly characterize our approaches as strongly textual—as always closely engaging constitutional wordings, even if the literal texts never or hardly ever operate in our thinking in isolation. Professors Bradley and Siegel assemble a substantial list of exemplars in support. They include discussions of the word “Congress” in the First Amendment; Fifth Amendment reverse incorporation of the Fourteenth Amendment’s Equal Protection Clause; the limited limits (so to speak) on the applicability of the Eleventh Amendment, and Lincoln’s reading of the Suspension Clause.

Constructed Constraint and the Constitutional Text is a bracing and provocative effort. Its own approach may well be a telling counter to the models of constitutional thought David Strauss and Jack Balkin have developed (I leave this question aside for present purposes). The brute fact of construction—the hard work of assembly implicit in writing and reading—is surely an important thing to remember, whether or not something like a stabilizing sense of clear understanding follows.

No doubt Jacques Derrida is smiling somewhere. Maybe more pertinently, Kenneth Arrow’s classic Social Choice and Individual Values comes to mind—a patient elaboration of seemingly reasonable premises for efforts to aggregate individual preferences that ends up unable to extricate itself from Condorcet’s paradox and thus from unintelligibility absent intensive, proliferating efforts by Arrow and his readers to revisit and revise his starting points. Or we may remember Stanley Fish’s transformative Surprised by Sin, within which the enormous and complicated text of John Milton’s Paradise Lost is made to appear to be a series of challenges to the convictions of its readers, who are thus prompted, Fish contends, to reconsider repeatedly what properly religious thinking requires. We might not be surprised if Bradley and Siegel’s rediscovery of constructed constitutional reading works similarly radically at times to bring to mind more clearly, for example, awareness of the ever-sobering tragedy evident in the Fourteenth Amendment text read entirely, and the enormous difficulty of escaping it clearly written in the history of that amendment’s interpretations.

The immediately exhilarating impact of Constructed Constraint strikes especially squarely (struck me, anyway) when reading very recent work of the Supreme Court. Clarity is ubiquitous—and so is construction. Consider three examples:

● In Daimler v. Bauman, an in personam jurisdiction case concerning a German holding company sued in California because of the company’s Argentine subsidiary’s complicity in gross human rights violations in Argentina, Justice Ginsburg insists that the test of due process is whether the holding company was “at home” in California (it was not, she concludes). Justice Sotomayor writes separately to suggest that Ginsburg’s approach is inane (Ginsburg returns fire furiously)—but every other Justice joins Justice Ginsburg. What gives? The Court plainly wants to treat the case as clear (even if there are even more Mercedes in Los Angeles than in Miami, for example). There are glimpses in the Daimler majority opinion of difficult agency problems with perhaps widespread implications in other settings, and an awareness of the strong aversion of European legal regimes to American civil procedure as a mode of dispute resolution. Maybe Justice Ginsburg and almost all her colleagues insist on the clear pertinence of their empty constitutional gloss as a way of avoiding risky hard work?

● In Walden v. Fiore, another in personam case, the defendant was a Georgia police officer detailed to assist federal law enforcement officers at the Atlanta airport in scrutinizing cash brought back from Puerto Rico by a professional gambler, who sued in a federal district court in Las Vegas (the gambler’s home) to recover damages owing to the too-long seizure of the (evidently legally innocuous) winnings. Justice Thomas wrote for a unanimous Supreme Court, rejecting Nevada jurisdiction over the Georgia officer who—it was supposed—never knew that the gambler lived in Las Vegas. Thomas adroitly simplifies the case in order to make the defendant’s ignorance decisive for due process purposes. The status of the defendant as a law enforcement officer has no bearing (most of the cases cited involve private citizen defendants). As a result, a complicated agency issue (again) recedes: should we view the defendant as a state actor or as a federal deputy of sorts? Perhaps bedrock federalism questions remain subsurface as well. Shouldn’t federal law enforcement actors be supposed to consider themselves as working in the “United States” entire and not in some particular state (especially federal actors working at airports, maybe especially Atlanta Hartsfield-Jackson)? Or should the possible substantial financial impact of litigation costs and damages, if the small town police department were obliged contractually or otherwise to indemnify its federally-commandeered officer, suggest some sort of constitutional limit? How do federalism questions like these interact with ideas of due process of law? As in Daimler, the Supreme Court’s construction work is apparent—and the clarity of Justice Thomas’s opinion, like Justice Ginsburg’s, is at the same time both sparkling and unsettling.

Kaley v. United States is more provocative still. The issue was again due process of law. Federal prosecutors contended that a grand jury indictment (here for alleged interstate theft of medical devices) rendered cash derived from the challenged transactions unavailable to defendants seeking to hire their counsel of choice. Probable cause suspended usual property rights and right to counsel concerns. Defense counsel argued that there needed to be an adversary hearing, given the interests at stake, to determine whether, despite the grand jury finding of probable cause, the question of the defendant’s guilt was open enough or complex enough to call the sequestration of the money into question.

Justice Kagan wrote for a majority of six (Chief Justice Roberts and Justices Breyer and Sotomayor dissented), holding that grand jury indictment was decisive. Her opinion is strikingly odd. The first part argues that the Supreme Court had already decided that grand jury indictment authorizes seizures of both the person and property of a defendant pending trial—and that’s that. But Kagan proceeds—insisting that she is writing dictum without any real purpose or consequence—to consider at length whether concerns for procedural due process support a defendant’s claim to a right to be heard, given the inquisitorial character of the grand jury process. Applying Mathews v. Eldridge, she concludes not: conceding the importance of defendant’s constitutional interest in counsel of choice, she treats grand jury indictment as nonetheless dispositive, as seemingly mooting any case-by-case assessment of balances of risks and interests.

So Kaley is supposed to appear as easy twice-over—or maybe for the same reason stated twice. Grand jury indictment and due process of law are both constitutionally-founded institutions. Shouldn’t a proper analysis take both seriously? Even if Justice Powell’s opinion in Eldridge itself is similarly and famously cavalier, subsequent Supreme Court decisions not mentioned by Justice Kagan recast his formula more rigorously. Kagan surely knows all this. It is easy, however, distracted by the appearance of slap-dash, to ignore what she accomplished. Two constitutional “focal points” or “frameworks” are acknowledged in the Kaley opinion. We might well conclude that it is the declaration of dictum that is the only dictum. If so, the conflict of constitutional structures—prosecutorial priority as against acknowledgement of individual rights—is clear from the face of Justice Kagan’s own text. Difficulty is clarity? The way remains open going forward?

* * * * *

Curtis Bradley and Neil Siegel remind us that we should remember cls. They are surely right. But read against the backdrop of Supreme Court opinions, their argument also suggests we should revisit Alexander Bickel’s Least Dangerous Branch, especially the chapter discussing Hugo Black. Constructions of clarity may undertake complicated, subtle, difficult, controversial, unsettling work—in constitutional law as elsewhere.


Beyond Contraceptive Mandate Doctrinalism

James D. Nelson, Conscience, Incorporated, Mich. St. L. Rev. (forthcoming), available at SSRN.

Perhaps the single hottest issue in American law and religion right now is the dispute over the so-called “contraceptive mandate.” The Affordable Care Act requires employers to extend insurance coverage to include contraceptive care. It includes some exemptions for particular churches and other religious organizations, but the Obama administration has refused to extend that exemption too widely. A number of businesses or business owners have complained that this mandate violates “their” religious consciences and that, under the Religion Clauses of the First Amendment and/or the Religious Freedom Restoration Act, an exemption is required. Key questions raised by the controversy include whether corporations have religious rights at all, whether the mandate constitutes a substantial burden, and whether the mandate is generally applicable or not. Lower court rulings are all over the map. The Supreme Court will hear two of those cases next month.

Articles on the contraceptive mandate are a growth industry right now but, with all due respect, few of them have said anything all that deep. Much of the work on this issue is still at the shadow-amicus-brief stage of legal doctrinalism, in which the first articles addressing a legal issue read like standard legal briefs lining up on one side of the issue or the other. There is some value in that for the litigants, and for those scholars who are rehearsing for amicus participation. But those articles really are just rehearsals, efforts to fight tomorrow’s battles with yesterday’s tools.

James Nelson’s draft article Conscience, Incorporated is a welcome exception. Many articles exhaust themselves on a threshold question: can corporations assert Free Exercise rights at all? Authors conclude that they obviously do or obviously don’t. But most interesting legal work, whether doctrinal or theoretical, takes place at the “it depends” level. That’s the ground that Nelson’s fine article occupies.

As Nelson writes, “The problem is that courts do not have a workable theory to guide their analysis.” The courts lack a fully coherent account of corporate identity itself, as it relates to constitutional rights and particularly matters like individual conscience. Speech, at least, is an activity in the world that directly implicates the recipients of that speech; whether the “person” pronouncing on matters of public concern is a soap-box speaker or a publicly traded newspaper, it matters to all citizens that that speech on matters of public concern take place. Consciences are harder to pin down. In Nelson’s view, standard debates over the nature of corporate personhood, which rely on “abstract descriptions of the corporate form,” all “fail to illuminate our inquiry into rights of corporate conscience.” They “provide only a sort of window dressing for unstated normative premises.”

Instead, Nelson argues, we must “develop a theory of corporate conscience that takes account of the nature of the relationships between individuals and organizations.” He calls this “the social theory of conscience.” If “conscience is about the construction of our identity and personhood,” then “we must be attentive to the ways in which our various social associations contribute to that process.” We might begin by distinguishing between organizations in which individuals “use their collective affiliation as a tool to achieve instrumental ends,” and have little interest in or commitment to deeper identity formation, and “constitutive communities” in which “individuals view their affiliation with the collective as a core aspect of their own identity.” It is the latter sorts of institutions, Nelson argues, those that involve a “shared [interest] among the members of a group or institution,” that have the strongest claim to some form of corporate conscience.

For Nelson, the general state of “environmental conditions in modern corporate life” is largely inconsistent with the social theory of conscience. Those conditions encourage all the constituents of a corporation to remain detached from their roles in an organization, weakening any claim to a collective or corporate conscience. But he acknowledges that other kinds of entities—with churches on one end, and parachurch organizations (such as religious schools or social service agencies) and some closely held companies in the middle—have a stronger claim to being constitutive communities sharing a commitment to particular conscience-driven values, and thus are in a stronger position to assert claims of conscience.

Nelson’s goal is not to answer the question how to treat corporate Free Exercise claims once and for all, or how to resolve individual claims concerning the contraceptive mandate. “When all is said and done,” he writes, “the legacy of the contraceptive mandate may be that it exposed the need to think more seriously about the broader phenomenon of institutional exemption.”

As Nelson acknowledges, one might favor a presumptive rule in favor of corporate conscience claims (or against them) as the best means of implementing a social theory of conscience, given the institutional capacities of courts. Or one might conclude, drawing on ancient history or recent cases, that conscience, in a more or less personal sense, is not the only basis for a viable Free Exercise claim—that there are structural reasons to favor a protective stance toward religious claims by institutions, even if not all their stakeholders share the same value commitments. Even if we agree with the social and identity-forming focus, we might hold a different view of the relevant individuals and of how much other individuals’ “detachment” matters. If the owner of Hobby Lobby, for example, sees the business as a fundamentally religious enterprise, and employees and customers have fair warning of that fact, does it matter if their own reasons for working or shopping there are more instrumental?

But I think Nelson (and Robert Vischer, in another excellent recent paper) asks the right questions, and asks them in a thoughtful and productive manner. Those questions matter. The idea that the courts will reject all corporate Free Exercise claims altogether is simply fanciful. But even a blanket acceptance of such claims will still raise questions of implementation—especially questions about the substantiality of the alleged religious burden. Our sense of how substantial those burdens are may vary in different cases. How we see those variations will depend in substantial part on the kinds of questions Nelson is asking. Despite its ultimate normative tilt, this is more than an amicus brief by another name; it’s a worthy contribution to a discussion of the deeper questions raised by the contraceptive mandate litigation.


Corruption, Partisan Gerrymandering, Theories of Democracy, and the Supreme Court

Deborah Hellman, Defining Corruption and Constitutionalizing Democracy, 111 Mich. L. Rev. 1385 (2013).

Every once in a while you read an article that makes you smack your head and say, “Duh—this is so obvious (and obviously right)—that I can’t understand why I didn’t see it before.” That’s the mark of a terrific article. It says something that is obvious after you’ve read it, but that wasn’t at all obvious (to you, at least) before. Deborah Hellman’s article on the Supreme Court’s treatment of “avoiding corruption” as a justification for campaign finance regulation is terrific in that way.

According to the Court, the First Amendment limits the kinds of corruption that can be targeted by campaign finance regulation. Only quid pro quo corruption—the more or less direct exchange of money given to a candidate for the candidate’s vote or other action on a matter of interest to the donor—counts for First Amendment purposes. Professor Hellman points out that “corruption” is what she calls a “derivative concept.” That is, you can’t say that some activity “corrupts” an institution’s proper operation without specifying beforehand what that proper operation should be. After developing that point with examples from universities (nepotism is bad in hiring faculty members because academic departments are supposed to make decisions based on academic criteria, but preferential admission to selective public schools for siblings of a student already enrolled there might be permissible because of their overall goals), she turns to politics.

Professor Hellman draws upon a standard account of two conceptions of the representative’s role: representatives as delegates who should vote in accordance with their constituents’ views and representatives as trustees who should vote on the basis of their own judgment about what would be good for the society. Of course, quid pro quo corruption is bad under either conception. But, Professor Hellman points out, if the trustee conception is the correct one (we’ll see in a moment what “correct” means), then representatives who votes according to their constituents’ views are corrupt.

What this means is that we can’t come up with a definition of corruption for First Amendment purposes without having “a theory of democracy,” to use Professor Hellman’s words. She then criticizes the Supreme Court’s decisions restricting legislative power to regulate campaign finance in part because they don’t articulate anything close to a theory of democracy, and indeed one can’t even do much to tease such a theory out of the decisions.

What makes the article so powerful, though, is Professor Hellman’s next observation: In cases involving partisan gerrymandering, most of those members of the Court who have voted to restrict legislative power over campaign finance have disclaimed their ability to impose restrictions on legislative power over districting—and have done so on the ground that doing so would require that they have (aha!) a theory of democracy. At which point Hellman asks, “What’s going on here? If they can’t come up with a theory of democracy to deal with partisan gerrymandering, how come they think they can come up with such a theory to deal with campaign finance regulations?” She explores and rejects some possible distinctions between the contexts, and the reader leaves the article with the sense that she’s caught a bunch of the Justices in a hypocritical contradiction.

Professor Hellman’s too polite to say more, but for me, the next line is pretty obvious: The theory of democracy that’s doing the work is “The Constitution’s on the side of Republicans – not just that Republican positions are consistent with the Constitution (and Democratic positions aren’t), but also that the Constitution sets things up so that the rules regulating elections favor Republicans.” No one will accuse me of calling the underlying idea a stunning and novel insight. What Professor Hellman does, though, is to tie that idea to a specific doctrinal anomaly or hypocrisy. Connections among doctrine, “deep” politics—competing theories of democracy—and partisan politics are what I for one look for in scholarship about constitutional law, and I found those connections laid out elegantly in Professor Hellman’s article.


Can “Semi-Procedural Review” Help Solve the Problems of Constitutional Theory?

Ittai Bar-Siman-Tov, Semi-Procedural Review, 6 Legisprudence 271 (Dec. 2012), available at SSRN.

The most famous problem in American constitutional law is the counter-majoritarian dilemma, which asserts that it’s troubling for an unelected U.S. Supreme Court to invalidate duly enacted laws. In a journal article, Semiprocedural Judicial Review, Israeli legal scholar Ittai Bar-Simon-Tov makes an important contribution to the scholarly debate over this dilemma, drawing partly on the jurisprudence of several national and trans-national courts. This global focus distinguishes his article from some similar earlier work by American law professor Dan Coenen. Tov’s theory preserves judicial review but also promotes deliberative democracy.

The article starts with evidence that various courts have found laws unconstitutional, or illegal, because the laws were adopted without sufficient deliberation, public consultation, legislative findings, notice, or other procedural protections. The author himself does not reject substantive review, but he argues that examining a law’s procedural context should also determine legality, especially when courts are engaged in proportionality analysis (e.g. the balancing of the state’s interest versus the individual’s burden). This addition of procedural to substantive review minimizes the counter-majoritarian dilemma by fostering thicker democratic processes.

Tov relies on cases from the European Court of Human Rights and the European Court of Justice, as well as German Federal Constitutional Court decisions and Belgian decisions. The U.S. Supreme Court has occasionally employed a similar technique called “structural due process” an idea that is featured prominently in a well-known Harvard Law Review foreword by Laurence Tribe. Tov shows that Justice Stevens’ dissenting opinion in the affirmative action case, Fullilove v. Klutznick, was based on the absence of meaningful Congressional deliberation about racial tradeoffs. In another case, Reno v. American Civil Liberties Union, the Supreme Court used the First Amendment to strike down an Internet speech restriction partly because Congress never seriously debated the issues raised. Moreover, in certain Commerce Clause cases, the U.S. Supreme Court has ruled that the absence of formal Congressional findings may be one reason a federal law is unconstitutional, United States v. Lopez, though there are contrary decisions as well.

Tov explains that one benefit of his approach is that it promotes dialogue between the courts and the legislature, a concept that is in fashion now amongst constitutional theorists—for good reason, in his view. His approach would even allow a legislature, in some cases, to re-pass defective legislation. He differentiates this approach from another interpretive method, pure procedural review, which shows no concern about the substantive rights at stake.

Tov acknowledges possible criticisms. One concern is that his approach invites courts to micro-manage the legislative process. In addition, it’s not clear what procedures will suffice. This means a judge’s personal values could not only influence the substantive analysis, but could also impact the procedural part. Further, why would the exact same law be legal if passed using one set of procedures, but not another?

Tov responds well. First, he advocates that judges integrate procedural review into their proportionality analysis of rights adjudication, rather than completely replacing proportionality. This limits the proposal’s impact. Second, courts can avoid micro-managing by only requiring evidence of “participation and a minimal level of deliberation and debate in the legislative process.” (P. 297.) Also, courts and the legislature must take dialogue seriously, and not see each other as adversaries. Third, the danger of judicial subjectivity can be averted if courts use the same level of deference regarding the legislature in all cases and are clear in their expectations for legislative procedures.

Lastly, he says semi-procedural review will work best in cases where a law infringes on express individual rights, but he does not rule out procedural review of implied rights completely. He does argue that egregious human rights violations can never be justified on procedural grounds. This is actually akin to the paradoxical American concept of “substantive due process,” since no amount of process can make these rights infringements acceptable.

In summary, he asserts:

Constitutional rights (and perhaps other substantive values) will be protected on two levels. Egregious substantive violations will be subject to judicial invalidation regardless of the quality of the legislative process. Lighter infringements, in which constitutionality, is a matter of reasonable disagreement or a wide “margin of appreciation,” will be subject only to procedural safeguards in the sense of ensuring the possibility for participation and a minimal level of deliberation and debate in the legislative process. (P. 298.)

This article is an important addition to constitutional theory, though it is not completely new, as mentioned earlier by the reference to Dan Coenen’s work. Indeed, the American academic and jurist Hans Linde’s writings on “due process of law making” appear to be the source of this kind of theory. Hans Linde, Due Process of Lawmaking, 55 Neb. L. Rev. 197 (1976). Moreover, Tov omits some important cases. For example, in Hampton v. Mow Sun Wong, the U.S. Supreme Court said that an undemocratic federal agency lacked the bona fides to deprive immigrants of access to federal jobs. Even in Regents of the University of California v. Bakke, Justice Powell wrote of the Board of Regents that, “isolated segments of our vast governmental structures are not competent to make [affirmative action] decisions, at least in the absence of legislative mandates and legislatively determined criteria.” In addition, an important South African Constitutional Court case invalidated legislation, allowing abortions, because the Parliament had failed to engage in sufficient consultation with the public in the provinces, though this may be an example of pure procedural review. Doctors for Life International v. Speaker of the General Assembly, 2006 (SA) 416 (CC). Moreover, it’s not clear how Tov’s approach works in a legal system, like the American one, that uses a more categorical approach to rights, rather than a proportionality review. In his defense, though, the article’s focus is not on the United States.

The most fundamental criticism, however, is that the author imposes a deliberative democracy model on legislatures, akin to the republicanism of Cass Sunstein and Frank Michelman, while many scholars, politicians, and others embrace a pluralist or public choice model. Even Justice Souter wrote, as Tov mentions, that, “[Judicial] authority to require Congress to act with some high degree of deliberateness . . . would be as patently unconstitutional as an Act of Congress mandating long opinions from this Court.” (P. 289, citing United States v. Lopez at 613-614 (Souter, J. dissenting).) Thus, many experts and citizens may not be that bothered by unprincipled law making. But that’s perhaps why the author only requires minimal deliberation by the legislature. This minimalism, however, paradoxically removes some of the spice from his proposal, and perhaps even invites legislatures to use boilerplate. Nonetheless, this is an important, succinct, and well-crafted article that develops a middle ground between excessive judicial activism, and judicial passivity in the face of government misdeeds.


Judicial Deference Defrocked

Richard A. Posner, The Rise and Fall of Judicial Self-Restraint, 100 Calif. L. Rev. 519 (2012).

Balance between judicial power to invalidate legislative and executive actions on constitutional grounds and judicial deference to democratic decision-making is critical to the success of the American legal system. Too much deference undermines fundamental constitutional norms; too little deference undermines representative government. It’s a common refrain of Supreme Court dissents, by both conservative and liberal Justices, that the Court has arrogantly refused to defer—or slavishly deferred—to the other branches of government.

Stepping into this vortex, Judge Richard Posner has written a cogent, circumspect, sometimes quirky article on the historical trajectory of “Thayerian deference” from the 1890s to the 1970s. His history elucidates what constitutional deference encompassed in this period and why that theory of deference met its demise. Posner wisely marries the decline of such deference with the rise of constitutional theory.

Two background bits open Judge Posner’s article. First, he deconstructs several types of deference or judicial restraint. Restraint may be based on (1) formalism (judges apply but do not make law); (2) modesty (judges lack factual or institutional expertise); and (3) constitutional restraint (judges only reluctantly declare elected branch actions unconstitutional). This third, admittedly overlapping form of judicial restraint is the article’s focus, but Posner acknowledges a tension between types of deference. For example, using the canon of avoiding constitutional questions may end up narrowing a statute’s scope in ways that are hardly deferential to Congress.

Second, Posner discusses the academic origins of constitutional deference in an 1893 Harvard Law Review article by James Bradley Thayer, who said judges should invalidate statutes only when unconstitutionality was “so clear that it is not open to rational question.” “Clear error” constitutional deference, Posner writes, was an offshoot of the shaky ground for constitutional review generally: from 1804 until 1864, the Court only invalidated two federal statutes (the sublime Marbury v. Madison and the reviled Dred Scott v. Sandford), and invalidation from 1864 to 1893 was still sparse. Thayer analogized Congressional passage of statutes to English “parliamentary supremacy.” He viewed constitutional review as “political” and therefore institutionally non-judicial. Finally, Thayer worried that if courts were too active, Congress would become lazy, leaving the sorting out of unwise laws to the courts.

The core of the article explores the rise and decline of Thayerian deference by the judiciary. The rise was rapid and included Justices Holmes, Brandeis, and Frankfurter. Adroitly, Posner differentiates each acolyte from Thayer. Holmes deferred to legislatures not because they were wise and politically savvy, as Thayer thought, but even if they were stupid and venial. Holmes had a Darwinian conception that politics was rightly the sport of the strongest and that the weak should step aside. Deference remained, but its underpinnings morphed. Brandeis’s brand of Thayerism was political: he favored restraint to avoid issues his more conservative colleagues would have decided differently had the merits been reached, deferred to allow states to operate as “policy laboratories,” and piled on factual details showing that liberal legislation was reasonable. Frankfurter, the most emotional Thayerian, “shared the Progressive movement’s excessive regard for government by experts and Thayer’s high regard for legislatures.” In addition, his immigrant patriotism led him to defer in First Amendment cases involving anticommunist statutes. The final acolyte, Yale Law Professor Alexander Bickel, had a “patronizing attitude towards legislatures” quite unlike Thayer’s idealistic fawning. Bickel asserted at most a cautious “moral leadership” role for the Court.

The fall of Thayer’s theory “with Bickel’s death in 1974” was precipitous. “Thayer’s balloon was punctured,” so that only a vague pejorative meaning to “judicial activism” and an equally vague complimentary meaning to “judicial restraint” remained. What really killed Thayerism, says Posner, is the rise of constitutional theory purporting to show the existence of a correct constitutional decision in particular cases. The multiplicity of such theories is noteworthy:

Modern constitutional theories—whether Bork’s or Scalia’s originalism, or Easterbrook’s textualism, or Ely’s representation reinforcement, or Breyer’s active liberty, or the Constitution as common law, or the Living Constitution, or libertarianism, or the Constitution in exile, or anything else (including minimalism, despite surface affinities to Thayerism)—are designed to tell judges, particularly Supreme Court Justices, how to decide cases correctly rather than merely sensibly or prudently.

With these “pretensions of constitutional theory” to provide correct answers to cases, judges lost the need to defer, for their correct answers could, in their eyes, legitimately trump actions of other institutions. The judicial motto then became “The Constitution made me do it” and deference seemed a “cop-out.” Occasional or tie-breaking deference, which rarely occurs, is much weaker than Thayer’s deference to statutes “unless no reasonable person could doubt its invalidity.”

How would Thayerian deference play in the hands of legal pragmatists, agnostic about constitutional theory and “derided in the legal academy” for their lack of rigor? Are pragmatists Thayerian? Not really, says Posner. He sets forth eight principles of legal pragmatism: duty to decide, expansively conceived legal materials, interstitial legislating, lack of master constitutional theory, long-term consequentialism, tie-breaking tools to deal with uncertainty, adherence to “rule of law,” and a duty of candor. All these tools limit pure Thayerian deference, and in legally indeterminate cases, pragmatists are as likely to turn to emotional reactions as tie-breakers rather than deference. Applying the “theory beats deference” insight, Posner then examines Warren Court liberal activism to textualism and originalism on the Court today. Insightfully, Posner says Justice Stevens’ dissent in DC v. Heller fails because it does not counter Justice Scalia’s originalist theory.

Finally, Posner takes a look at empirical analyses of judicial restraint, especially that of Professors Lindquist and Cross, who used five axes of restraint to model all of the Supreme Court justices from 1953 to 2004. None of this empiricism does a very good job, he concludes, of mapping onto pure Thayerian deference, though it is clear that particular Justices, both liberals and conservatives, accord more weight to self-restraint “that is more than a mask for ideological voting” than do other Justices. Posner quotes Judge Henry Friendly: “A great constitutional decision is not often compelled in the sense that a contrary one would lie beyond the area of rationality.” The bottom line is that some judges defer, but little or no deference is rooted in Thayer’s framework.

The main point of Posner’s historical excursion is that judicial deference is inextricably intertwined with constitutional theory. This insight has legs elsewhere, such as in decision-avoidance through standing doctrine and “rational basis” review. Standing doctrine, popular with the conservative wing of the Supreme Court, rests primarily on a formalist separation of powers theory. If that theory declines, standing would less regularly bar plaintiff suits in federal courts. Likewise, “rational basis” review, as in the equal protection arena, is premised on the unavoidability of legislative categorization. The Court may flyspeck categories for equal protection concerns or deferentially permit legislative flexibility. When will it flyspeck and when defer? That depends on constitutional theory. Does the Fourteenth Amendment focus upon careful oversight of racial categories alone, or does it extend to close scrutiny of sex (or sexual orientation) categories? Even within racial categories, constitutional theory drives whether, when, or how to defer to affirmative action by government as compared to invidious racial discrimination by government. Is the theory colorblind constitutionalism or anti-subordination theory? Those theories, not deference, will determine outcomes.

Thayerism was an empty vessel of judicial abnegation, a vague and poorly justified set of reasons for assigning responsibilities elsewhere than to the judicial branch. Because constitutional theory has made determination of cases essential, even in hard cases and even where reasonable people may disagree, it is not likely to rise from the ashes. Pragmatists, not blinded by untenable and insufficient theories of constitutional decision-making, will take account, according to Posner the pragmatist judge, of some of the considerations underlying Thayerism, but only to the extent of using a “weak presumption in favor of upholding state and federal statutes when challenged for violation of the federal Constitution.” Such a weak presumption is far removed from Thayer’s lodestar that invalidation should occur only when unconstitutionality is “so clear that it is not open to rational question.” Thayerian deference is not relevant to today’s world where, under some constitutional theory or another, almost any judicial decision would be at least minimally rational.



Cass R. Sunstein, Constitutional Personae (preliminary draft July 25, 2013), available at SSRN.

Several years ago, I attended an AALS program featuring Cass Sunstein as a panelist. He spoke last, about an hour into the session. The moderator introduced him to knowing laughter by announcing, “Our last presenter is Cass Sunstein, who has just written another book . . . while he has been waiting to speak this morning.” Sunstein is an original, provocative thinker and a remarkably prolific writer: the kind of scholar who shuttles from the University of Chicago to Harvard University, the kind of public intellectual who takes time off to run OIRA (Office of Information and Regulatory Affairs) in the Obama Administration.

Sunstein writes—a lot!—about administrative law and constitutional law. In my own field, constitutional law, Sunstein always delivers intriguing insights. He does it again in this draft article. Conceptual articles like this one remind me of the economic models I studied in college: they are abstracted from reality but help us to better understand it. The SSRN version I read is clearly a draft and still has some way to go. (I wonder if any of his other fans occasionally get the feeling that Sunstein sometimes lets go of his pieces too soon.)

The ancient Greeks styled two masks for their theatrical performances: comedy and tragedy. Contemporary Court-watchers tend to sort Supreme Court justices according to two phenotypes: politics and methodology of constitutional interpretation. For example, Antonin Scalia is labeled a “conservative” in the newspapers and an “originalist” in the law reviews. (Never mind that the conservative/liberal dichotomy is essentially meaningless, and never mind that constitutional interpretation is at once over-theorized in academic journals and under-theorized in the United States Reports. Take my word for it.)

According to Sunstein, however, the nine actors on the Supreme Court (and their academic understudies) perform their decisional dramas behind four masks with distinct personae: Heroes, Soldiers, Burkeans, and Mutes. (It is somewhat curious that Sunstein did not discuss John Noonan’s path-breaking book Persons and Masks of the Law.) For present purposes, Sunstein’s four personae may be briefly described in his own words:

  • Heroes “are entirely willing to invoke an ambitious understanding of the Constitution to invalidate the decisions of the federal government and the states” (P. 3.)
  • Soldiers are “[a]t the opposite pole of Heroes” and are “willing[ ] to defer to the will of . . . superiors . . . understood as the political branches of government” (P. 6.)
  • Burkeans “are neither Heroes nor Soldiers” and instead “favor small, cautious steps, building incrementally on the decisions and practices of the past” (P. 9.)
  •  Mutes “prefer to say nothing at all,” although literally “[n]o member of the Court, past or present, can be characterized as a mute” (P. 10.)

I will avoid any spoilers and instead encourage readers to discover for themselves how Sunstein categorizes the current members of the High Court (as well as many of the leading constitutional law professors). Here is a teaser of a typology of the four personae with an exemplar justice/scholar, an iconic decision/book, and a representative academic admirer:




Exemplar Justice/Scholar


Iconic Decision/Book


Representative Academic Admirer



Earl Warren

Brown v. Bd. of Education

Ronald Dworkin


Oliver Wendell Holmes, Jr.

Lochner v. New York dissent

James Bradley Thayer


Felix Frankfurter

Youngstown Sheet & Tube Co. v. Sawyer concurrence

Cass Sunstein (according to himself)


Alexander Bickel

The Least Dangerous Branch

No one always & Everyone sometimes

The four personae often engage in an elaborate and stylized debate. For example, the decision in Roe v. Wade (1973) “is heroic, and those who think the decision was wrong tend to claim the mantle of Soldiers, while Burkeans wish the . . . Court had ruled narrowly, and . . . Mutes would try not to speak at all.” (P. 13.) According to Sunstein, “the standard theories of constitutional interpretation.  . . can led to adoption of one or another of the Personae, depending on the occasion,” that is, “any one of the Personae can fall out of a given theory of interpretation.” (P. 16.) Furthermore, “different judges may well adopt different Personae in different situations . . . because of contextual considerations.” (P. 17.)

This is the author’s key move: determining the “right theory” of constitutional interpretation is a priori to  donning the mask of the appropriate persona. (P. 19.) How should a jurist choose the right theory of interpretation? “As a first approximation,” Sunstein maintains, “the choice is an inescapably pragmatic one, and it turns on the magnitude and number of errors (‘error costs’).” (P. 21.) That pragmatic judgment, in turn, is the essence of the judicial function. He believes that “[n]o judgment about the role of courts, or about the Constitutional Personae, can sensibly be made in the abstract or independently of concrete judgments about what can be counted as a mistake, and about who is likely to be trustworthy.” (P. 23.)

Sunstein’s ultimate conclusion is that “[t]he right Persona depends on the plot of the play.” (P. 23.) Thus, “it is turtles all the way down.”


Is There a Federal Eminent Domain Power?

William Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L. J. 1738 (2013).

One of the most widely accepted truisms of American constitutional law is that the federal government has the power to condemn property through eminent domain. In modern times, even scholars and jurists who generally take a narrow view of federal power—myself included, until I read this pathbreaking article—did not question this idea. Yet, as William Baude shows, the conventional wisdom at the time of the Founding, and for many decades thereafter, was exactly the opposite: the federal government did not have the authority to condemn property within the territory of state governments. It could only do so in the District of Columbia and the federal territories. Baude’s research has important implications for the constitutional law of both federalism and takings.

Most students of takings law are aware that the Supreme Court did not rule that the federal government had the power of eminent domain until the 1875 case of Kohl v. United States. But Baude’s important work shows that that result was far from a foregone conclusion. Indeed, he argues that Kohl was wrongly decided.

Baude demonstrates that, prior to the 1860s, the federal government virtually always relied on state governments to condemn property at its behest when it sought to obtain land within the states that could not be purchased through voluntary sales. Although the power of eminent domain is not one of the enumerated powers listed in Article I of the Constitution, most modern scholars assume that its use is authorized by the Necessary and Proper Clause, which gives Congress the authority to enact laws that are “necessary and proper” for “carrying into execution” the other powers granted to the federal government.

Baude, however, shows that the dominant view at the time of the Founding and throughout most of the nineteenth century was that the Clause did not authorize the use of eminent domain, because it was seen as giving Congress only authority “incidental” to enumerated powers, not “great and independent” powers that amount to major separate grants of authority. This theory was partially elaborated by Chief Justice John Marshall in McCulloch v. Maryland, where he noted that the Clause does not authorize the exercise of “great substantive and independent power[s].” It was also famously adopted by Chief Justice John Roberts in his decisive opinion in NFIB v. Sebelius, where he ruled that the individual health insurance mandate was not “proper” because the power to impose mandates is a great and independent power, not an incidental one. As several of the Founding Fathers pointed out, if the Clause authorized any powers that might be “useful” or “convenient” tools for implementing other powers, then much of Article I would become superfluous. For example, there would be no need for a separate power to levy taxes, since taxation is clearly a useful means of raising revenue needed to implement the enumerated power to raise armies.

In the first part of his article, Baude shows that the power of eminent domain was regarded as a great and independent power similar to taxation, both by the Founders and by most early nineteenth century scholars and jurists. Given the Founders’ strong commitment to property rights, it is not surprising that what Supreme Court Justice William Patterson in 1795 called “the despotic power” to take property was regarded as more than merely incidental. Multiple unanimous or near-unanimous Supreme Court decisions reached the same conclusion in the 1840s and 1850s. As late as the 1860s, even such advocates of relatively broad federal power as Representative Thaddeus Stevens and Senator Lyman Trumbull raised constitutional objections to legislation that would have allowed the federal government to condemn property for railroads.

The Supreme Court in Kohl and some later commentators also claimed that the power of eminent domain is implicit in the existence of the Takings Clause of the Fifth Amendment. There would be no point to requiring “just compensation” for the taking of property if the federal government—the only entity restricted by the Bill of Rights at the time of the Founding—could not condemn property in the first place. But Baude notes that the Takings Clause was likely intended to constrain the use of eminent domain in the District of Columbia and the federal territories, where the federal government has always been able to wield sovereign powers otherwise available only to the states. He also points out that, unlike much of the rest of the Bill of Rights, the Takings Clause was not enacted in response to any strong political demand by anti-Federalists or by state governments, but was likely a personal initiative of James Madison’s. This reinforces the idea that the federal government was not believed to have a general power of eminent domain, and therefore there was not much concern about constraining it.

The Kohl Court’s main argument in defense of a federal eminent domain power is that this authority is inherent in the nature of sovereignty and therefore did not need to be enumerated. Baude rebuts this idea effectively, noting that the same could be said of many enumerated powers in Article I, including the power to raise armies and the power to tax, among others. The latter are surely even more essential to the workings of effective government than eminent domain is, but they were still enumerated. The fact that the federal government had survived and (mostly) prospered for almost a century without the power of eminent domain suggests that it was not really essential after all.

Baude concludes that “Kohl’s invocation of th[e] notion of inherent powers (and its expansion in later cases) has very little support in the text, structure, or early history of the Constitution itself.” He suggests that the rise of the ahistorical inherent sovereignty argument was an understandable Unionist backlash against the extreme states’ rights claims made by the Confederates and their sympathizers.

Baude’s analysis has important implications for federalism doctrine. In particular, it reinforces the idea, endorsed by five justices in Sebelius, that a “necessary” law might still be unauthorized by the Necessary and Proper Clause because it is not “proper.” Baude follows Chief Justice Roberts and Chief Justice Marshall in contending that a necessary but improper claim of power is one that would give Congress a great and independent new power, rather than merely an incidental one. He contends that this reinforces the Court’s earlier decisions holding that the federal government does not have the power to commandeer state officials, and might even reinforce long-rejected claims that Congress lacks the power to impose military conscription. Somewhat surprisingly, given his other conclusions, Baude doubts that the individual health insurance mandate falls on the “improper” side of the line, because Congress had used mandates in the Founding era under its powers to regulate the militia and to raise and support armies.

As Baude admits, the line between a great and independent power and an incidental one is not always clear. He also recognizes that originalist arguments like the one he presents are not the only available  tools of constitutional interpretation. Nonetheless, many modern scholars and jurists claim to be originalists of one type or another, and even many nonoriginalists believe that historical arguments should have at least some weight, even if they won’t always outweigh other considerations. Baude’s analysis has great relevance for this broad audience. At the very least, it helps us understand an important aspect of the constitutional history of eminent domain that previous scholarship has mostly neglected.

Baude’s work is also relevant to modern disputes over the interpretation of the Takings Clause, especially the Public Use Clause. The Supreme Court’s controversial 2005 decision in Kelo v. City of New London rekindled the longstanding debate between advocates of broad and narrow definitions of “public use”: those who claim that virtually anything that might potentially benefit the public qualifies as a “public use” justifying the use of eminent domain, and those who argue that “public use” requires government ownership of condemned property or a legal right of access by the general public. Defenders of the broad view sometimes point to the paucity of early statements that the Public Use Clause forbids private-to-private takings as a justification for their position. This absence becomes readily explicable if, at the time, the federal eminent domain power was believed to be limited to federal territories and the District of Columbia. These sparsely settled areas had relatively little private property, and the federal takings likely to occur there nearly all involved public uses in the narrow sense of the term, such as roads and other infrastructure projects. Thus, there was little need to consider the question of whether the Fifth Amendment barred transfers from one private party to another. Obviously, this does not by itself prove that advocates of the narrow view are correct. But it does weaken one standard argument against them.

I have a few reservations about Baude’s excellent analysis. Most important is that he fails to consider the possibility that, even if the federal government lacked a general eminent domain power, it is possible that Article I gives it the power to use eminent domain for a few narrowly specified purposes closely related to various enumerated powers. For example, the power to “raise and support” armies might be thought to allow the use of eminent domain to acquire land for military bases. Such a restricted eminent domain power is very different from one that would allow the federal government to condemn property for any purpose that might be beneficial in some way.  It might be a genuinely “incidental” power, as opposed to a great and independent one.

Similarly, as I have detailed in a recent article, the flaw in the federal government’s argument in NFIB v. Sebelius was not so much that it justified the health insurance mandate as such, but that its logic would validate virtually any other mandate of any kind, including the famous “broccoli” hypothetical. A strictly limited power to impose a narrow range of mandates, like that which Congress in the 1790s exercised under the Militia Clause, does not raise the same constitutional objections.

Another weakness in Baude’s theory—like Chief Justice Roberts’—is that much more needs to be said about how we should draw the line between incidental powers and great and independent ones. Baude recognizes the problem, but does not come close to fully solving it.

Future research building on Baude’s work should explore its implications for public use doctrine, while also considering the possibility that the lack of a general federal power of eminent domain in the states may not preclude a more limited eminent domain power. In the meantime, this article is likely to be the definitive analysis of the constitutionality of federal eminent domain power for some time to come.

Editor’s note: This review was written and edited before Prof. Somin knew that he and Mr. Baude would be co-bloggers at


The Sublime Dworkin

Ronald Dworkin, Religion Without God, New York Review of Books, April 4, 2013.

Ronald Dworkin’s death in February, at the age of 81, was surely a deep personal loss for those who knew and loved him, and marked the end of an epoch, an after-the-fact close to the late twentieth century, in liberal legal thought. The loss was of less moment, perhaps, to current work in constitutional law and theory. Dworkin’s missiles against the current Supreme Court, which continued to land in the pages of the New York Review of Books, were more than merely transatlantic missiles; they seemed to have been launched from another time and place altogether. Still, until the end, he wrote with grace, clarity, and an air of authority. I’m grateful that what appears to be his last major work was in one of my own areas of interest, the relationship between law and religion.

One of the bigger-picture theoretical questions that seems to have sparked renewed interest in this field is whether “religion”—whatever that is—is “special” for constitutional purposes. That question has been raised in a variety of ways. Chris Eisgruber and Larry Sager have asked, from an egalitarian perspective, whether religious claims can be set apart from claims of conscience. Both Brian Leiter and Micah Schwartzman have questioned from a philosophical perspective whether the distinctive treatment of religion is capable of coherent justification. Others, such as Caroline Mala Corbin and Nelson Tebbe, have approached things from a different but complementary position, asking whether nonbelievers are unfairly disadvantaged in the current legal regime. And religion’s specialness, as an intrinsic matter or for more earthbound legal purposes, has its defenders, too, prominent among them such writers as Michael McConnell and Andy Koppelman. It’s a question that certainly has an air of the abstract, but it has important implications for Religion Clause doctrine.

In Religion Without God, an excerpt from a forthcoming book of the same title that was recently published in the New York Review of Books, Dworkin offers his own take on this question. “The familiar stark divide between people of religion and without religion,” he begins, “is too crude.” Both believers and non-believers can and often do share a similar set of “convictions and experiences” about both “moral truth and natural wonder” that partake in a sense of awe and wonder. If we can reach a proper sense of what “religion” is, then we might be able to cool, if not end, the culture wars. This requires us to “separate God from religion”—to show “what the religious point of view really is and why it does not require or assume a supernatural person.”

For Dworkin, the religious attitude is not about theism. Rather, it is one that “accepts the full, independent reality of value.” It holds to two basic principles: that “human life has objective meaning or importance,” and that “what we call ‘nature’—the universe as a whole and in all its parts—is not just a matter of fact but is itself sublime: something of intrinsic value and wonder.” Both of these two convictions, of “life’s intrinsic meaning and nature’s intrinsic beauty,” make up the “paradigms of a fully religious attitude to life,” one that is comprehensive, pervasive, and full of a profound sense of mystery. That attitude, Dworkin argues, is present across the dividing line between believers and non-believers.

To this argument, Dworkin adds three points, none of them novel but all of them eloquently stated. First, if “the religious attitude rests finally on faith,” so too does any effort to find certainty in truth, including mathematic and scientific truth. Here, too, there is no way to reach an independent certification of the truth of those views. Second, the idea of faith takes on a special importance when we refer to convictions about value rather than convictions about matters of fact. Our “convictions about value are emotional commitments” that “must have a grip on one’s whole personality.” They must take on a sense of the numinous, one that “find[s] the universe awe-inspiring and deserving of a kind of emotional response that at least borders on trembling.” This sense of the numinous has been pointed to by both believers and non-believers, with Einstein serving as the patron saint (so to speak) of those falling in the latter category.

Finally, and perhaps more controversially, Dworkin argues that the religious attitude, whether it involves a believer or non-believer in God, involves a necessary separation between what he calls “religious science” and “religious value.” Many religious traditions “make claims about matters of fact and about historical and contemporary causes and effects.” They claim, for instance, that God exists, that there is a soul that continues after physical death, and that Jesus healed the sick. But they also make claims about value, such as the claims about “the intrinsic wonder and beauty” of nature and of human existence. And those value claims are independent of religious claims about matters of fact. Even if the God of monotheistic tradition exists, “such a god’s existence cannot in itself make a difference to the truth of any religious values.” God may be capable of judging the living and the dead, but the fact of his judgment cannot “create right answers to moral questions or instill the universe with a glory it would not otherwise have.” For such value judgments, the question of God’s existence is “only a minor premise.” In short, Dworkin concludes, “What divides godly and godless religion—the science of godly religion—is not as important as the faith in value that unites them.”

There is much to question here. One can do so from a non-“religious” perspective, from a worldview that rejects claims to objective truth or value altogether. This, Dworkin writes, “is not an argument against the religious worldview. It is only a rejection of that worldview,” one that “produces, at best, a standoff.” Certainly he does not attempt here to end the standoff.

One can also question Dworkin’s perspective from a theistic perspective, one that argues that claims of truth and claims of value are inseparable—that, say, the fact of salvation is precisely what gives meaning to claims about what invests life with value. Those of us who come from non-salvific traditions may question that assertion. Jews, for instance, have a long history of arguing with the very God that they believe in. (Or don’t believe in; disbelief in God has never stopped Jews from arguing with him.) From that perspective, the prospect of eternal life doesn’t strike us as a very good reason not to tell God he’s dead wrong.

But there are other traditions, and for them the effort to separate factual claims from claims about value may seem unacceptable. In a review of Dworkin’s final full opus, Justice for Hedgehogs, for example, Robert Rodes objected that a similar move in that book ended up treating God as “cosmically irrelevant,” as a mere matter of fact with little or no bearing on matters of value. Whether Dworkin’s claim on this point is rejected as offensive or ignored as esoteric, it is not likely to cool the culture wars appreciably.

There are also reasons to be skeptical about where Dworkin is going as a matter of legal doctrine. He argues, for instance, that courts have often defined religion in something like the expansive way he does. But his assertion, in a fairly typical Dworkinian move, rests on a questionable interpretation of the caselaw. He writes later in the piece that his goal is “to produce an account of religion that we can use to interpret the widespread conviction that people have special rights to religious freedom”—the very point that is at issue in current debates about whether religion is “special” for constitutional purposes. But this is a slippery use of the word “religion,” and it is doubtful that the widespread conviction Dworkin refers to embraces anything like the expansive definition of religion that he favors. Finally, I can’t help but wonder what his expansive view of the religious attitude portends for the Establishment Clause, and particularly for his earlier, creative—but unpersuasive—effort to use it as a foundation for abortion rights. We will have to wait for the full book to see where he goes.

At the same time, there is much to be said for Dworkin’s focus on a sense of the sublime and transcendent as fundamentally “religious,” whether the person who has that sense is a theist or not. Even if we are unwilling to call this sense of the sublime religious, it is still widely shared. It is what makes it possible for most of us to appreciate the pull of indisputably “religious” claims, and thus the importance of religious liberty; and it also makes it possible for most of us to appreciate the importance of conscience itself, religious or not. Even in what Charles Taylor called a “secular age,” as long as there is a residue of the sublime, we can still at a minimum appreciate the idea of religious experience, respect the force of religious conviction, and enter the mind of the religious believer in a way that gives us an adequate sense of the importance of his claims to religious liberty. Whether that residue of the sublime also requires us to give equal weight to non-theistic claims of conscience as a legal matter is a separate question, but at a minimum it gives us a sense of the reasons for religious liberty, and also gives theists a sense of the importance of non-theistic claims of conscience.

It’s not clear, then, that Dworkin’s swan song succeeds in telling us what “religion” is, or whether it is unique. But it does suggest something about why religion, whatever that is, is “special,” is a vital part of the human condition as most of us—believers and non-believers alike—experience it, and why it’s worth protecting.


State Boundaries and Constitutional Limits

Clyde S. Spillenger, Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940, UCLA School of Law Research Paper No. 12-01 (February 15, 2012), available at SSRN.

Most constitutional law scholars pay no attention to the field of conflicts of law. Conflicts governs the law of multi-jurisdictional litigation—like which state’s law to apply when a railroad worker is injured on a train from Alabama to Mississippi, or whether a marriage in one state will be recognized in another, or how to enforce a court’s ruling against assets or people in another state. And as those examples might suggest, it can frequently seem like a technical adjunct to civil procedure.

Yet conflicts questions frequently do interact with constitutional law principles of federalism. One example is the doctrine of “extraterritoriality”—the limits on a state’s ability to regulate stuff that takes place somewhere else. Territoriality is a basic premise of the federal system; everybody knows that the New York legislature can’t just sit down and rewrite all of the laws of New Jersey. This seems like a common-sense requirement of our constitutional structure.  But as Clyde Spillenger demonstrates in Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940, the nature and source of this principle is misunderstood today.

Spillenger targets the widespread assumption that once upon a time, courts recognized a strict rule that it was unconstitutional for a state to regulate outside of its borders. On this account, the 19th Century was an era of formalist constitutional limits on regulatory power, which was only gradually relaxed in the 20th Century as legal realism and progressive politics led to the modernization of doctrine. Even today, the Supreme Court recognizes a vestige of this constitutional territoriality under the Due Process and Full Faith and Credit Clauses: “if a State has only an insignificant contact with the parties and the occurrence or transaction,” the Court says, “application of its law is unconstitutional.” Some scholars urge the Court to reinvigorate stricter constitutional limits on state extraterritoriality.

Spillenger’s piece is fantastic revisionist history: He makes a strong case that the widespread assumption is wrong, and that the constitutional doctrine ought to be abandoned, not reinvigorated. In detailing the forgotten history of territoriality, he shows that the modern view misses two important pieces of historical context.

First of all, before the Civil War, the jurisprudence of conflict of law “did not even acknowledge” the possibility of constitutional limits on extraterritoriality. Limits on territoriality were thought to relate to the limits of a state’s power to legislate for another one. But there simply wasn’t a lot of state legislation of the relevant kind: most interstate disputes were tort and contract cases were governed by general common law. Because the law was discovered by judges rather than made by legislators, it was not thought to implicate territoriality problems at all. After Erie v. Tompkins, we may mock the idea of law as a “brooding omnipresence in the sky,” but that brooding omnipresence was widely accepted by antebellum jurists, and it shaped their view of conflict of laws.

Second, even once states did start to pass statutes governing interstate private-law disputes—a range of risk-regulation statutes stemming from increased industrialization in the late 19th Century—courts did not recognize a constitutional principle of territoriality. Instead, people believed that territoriality was a general principle of jurisprudence, not a specific rule of due process, full faith and credit, or conflict of laws. Once again, the traditional way of thinking about territoriality stemmed from the pre-Erie concept of general law. Territoriality principles came from international law and general legal principles, rather than being created by any particular source of federal law.

In other words, an attempt to resurrect historical constitutional limits on choice of law is misconceived. This doesn’t mean that law has nothing to say about territoriality—for example, under Steve Sachs’s arguments about “constitutional backdrops”, it might well be that the Constitution prohibits states from changing the general law principles of territoriality—but those rules don’t actually come from the Constitution, so it is a mistake to search the Due Process and Full Faith and Credit Clauses for territorial limits on a state’s authority.

Spillenger’s piece is also an antidote to historical myopia. To the modern eye, everything before the dawn of legal realism is just “old law,” with little appreciation for the important differences between 1810 and 1870 and 1910. But Joseph Beale and Joseph Story had very different theories of conflict of laws, even if both of them are quite distant from any of the modern ones. By bringing forth the now-strange assumptions of 19th-Century jurisprudence, Spillenger demonstrates how deeply we can misapprehend a legal doctrine if we don’t understand the legal context in which it arose.

By the way, so far as I know, this piece has not yet been picked up by a law journal. Student editors who are reading this: grab it while you can!

(Revised 6/19/2013)