Constitutional Law

William Baude

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

Yet conflicts questions frequently do interact with constitutional law.  After all, questions about interstate conflicts are really just a form of applied federalism.  One place they interact involves the limits on a state’s ability to regulate stuff that takes place somewhere else: “extraterritoriality.”  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.  But nobody quite knows why.  No provision of federal law says so explicitly.

The Court has held some a weak territoriality principle to be incorporated into the Due Process and Full Faith and Credit Clauses.  While the principle is not exacting, the Court’s precedents say that “if a State has only an insignificant contact with the parties and the occurrence or transaction, application of its law is unconstitutional.”  Some scholars have urged courts to be stricter in enforcing constitutional limits on extraterritorial state regulations.

Against that backdrop, Clyde Spillenger’s Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law argues that modern scholars and the Court have misunderstood the relationship between territoriality and the Constitution.  The paper is a nuanced treatment of a broad and complicated period of history, so I will be omitting a lot of important detail. But the basic thesis is that the constitutional limits on state choice of law are more novel than people realize today.

Before the Civil War, Spillenger argues, “the jurisprudence of conflict of laws did not even acknowledge, much less adopt, the possibility that such constitutional limitations existed.”  Most of the relevant private law disputes were governed by general common law, not by state-specific statute; so courts had little occasion to confront the scope of a state’s power to control out-of-state transactions.  The constitutionality of extraterritorial state regulation only became a serious issue as states began to widely adopt certain kinds of risk-regulation statutes in the second half of the nineteenth century.  Even then, Spillenger argues, the principle that states cannot regulate what takes place elsewhere was at first “based not on the Constitution but on more general principles concerning the sovereignty of states,” and “was conceived as a limitation on legislative or ‘political’ jurisdiction rather than a doctrine belonging to ‘conflict of laws’ as such.”

In other words, any attempt to resurrect historical support for constitutional limits on choice of law may be misconceived.  The conflicts rules that governed choice of law and limited the territorial scope of legislative jurisdiction were actually a form of general law, derived from international law and principles of sovereignty rather than created by the Constitution or any specific government.  It might well be that the Constitution effectively prohibits legislatures from changing this general law from legislative change (i.e., that it is what Steve Sachs calls a “constitutional backdrop”), but the Constitution wasn’t actually thought to create those rules.

Like Jud Campbell’s Commandeering and Constitutional Change (which I wrote about here), Spillenger’s piece is an antidote to a myopic view of history.  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 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!

Pat Gudridge

Whatever Reva Siegel writes is worth close study.  This recent Yale Law Journal article is no exception — characteristically alert and probing, quintessentially first-rate.  She identifies a worry recurring in important opinions Justice Kennedy has written recently – an intimation that identifying individuals on the basis of race is balkanizing.  This suggestion or something like it, she notes, also shows up in affirmative action opinions Justices O’Connor and Powell wrote and in an impressive article by Paul Mishkin Professor Siegel herself, Robert Post, and others have taken up.  She wonders whether the balkanizing worry defines a third way — an alternative to both color-blind concerns with use of racial classifications as such and preoccupations with the facts and circumstances of subordination.  The well-known Seattle and New Haven controversies look like appropriate cases for use of the balkanizing idea, she thinks.  Her discussion of Seattle (and the Louisville companion, not really separated) is somewhat abstract. Her assessment of how the city made matters worse in New Haven, and the likely consequences, feels especially dead-on.

As the article itself suggests in its long finish, the notion of “balkanizing” is provocative but incomplete.  There needs to be some filling in.  Reva Siegel is sure about that, but she doesn’t try to take the work too far.  She’s sketching but not necessarily joining this school of thought.  But what she writes is nonetheless a very effective prompt, an invitation to readers to pose tests or propose for themselves more in the way of elaboration.  Indeed, a true sign of the great success of the article lies in how quickly the reader begins to join in Siegel’s exploration.

What is it about the Balkans that is evocative?  We all know, Siegal seems to believe.  And we do: nationality or origin-based, persisting, bloody civil war: ethnic cleansing, outright massacres, partition, Sarajevo, etc.  But why do we need the allusion?

We have our own history precisely on point.  Reconstruction played out as civil war revisited, as massacres, separation, persistent terrorism, the whole thing — with a large triumph for hatred, a successor regime grounded in a culture of racial antipathy, popular and official terror, legal ratification.  Why not recall our own horrors?  Denial?  We like to think that the Reconstruction afterward – Jim Crow etc. – has run its course, however much in fits and starts.  A new regime – maybe institutionally first adjudicative but increasingly electoral, maybe even now culturally more tentative and uneven – has replaced open white supremacy – not necessarily an entire defeat for predecessor adherents, but a changed environment, with new moves, a new status quo, new possibilities indeed advertising and demonstrating the possibility of black ascendancy.  Why hold on to past horror?  That is at bottom Justice Breyer’s question at the close of his Seattle opinion.  (See Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 863-68 (2007) (Breyer, J., dissenting)).  Justice Thomas answers — because reversion is always possible, nothing is definitively settled.  (See id. at 772-81 (Thomas, J., concurring)).  We should stay in touch with the past to ready ourselves to revisit its battles and therefore to keep the past at bay, to the extent possible.  Thomas lays claim to a tragic constitutional law, sets up constitutional law as a deep resource for meditation, akin to spiritual exercise.

But why invoke the Balkans then – as Professor Siegel and Justices Kennedy and O’Connor do?  Perhaps “balkanizing” is not necessarily a reference to an appalling end-state.  Instead, we may think, it calls to mind a deteriorating accumulation, attitudes asserted and steps taken too easily, ultimately in a wrong direction.

In this respect, it is interesting to consider a passage Justice Kennedy wrote that Siegel does not emphasize – taken from his majority opinion in Rice v. Cayetano, 528 U.S. 495 (2000):

[T]he use of racial classifications is corruptive of the whole legal order …. The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States,…  (Rice, 517; see 320 U.S. 81 (1943))

Hirabayashi! What was Kennedy thinking?

Chief Justice Stone’s opinion is (put politely) controversial, we all know, in Stone’s own words, itself perhaps “odious to a free people,” an effort at justifying a nationality-restricted curfew limiting West Coast citizens and residents of Japanese origin in the wake of Pearl Harbor.  One sequence in particular stands out:

There is support for the view that social, economic and political conditions have prevailed since the close of the last century, when the Japanese began to come to this country in substantial numbers, have intensified their solidarity and have in large measure prevented their assimilation as an integral part of the white population. [320 U.S. at 96] … Federal legislation has denied to the Japanese citizenship by naturalization … and the Immigration Act of 1924 excluded them from admission into the United States.  … State legislation has denied to alien Japanese the privilege of owning land. … It has also sought to prohibit intermarriage of persons of Japanese descent with Caucasians. … Persons of Japanese descent have often been unable to secure professional or skilled employment except in association with others of that descent, and sufficient employment opportunities of this character have not been available. [320 U.S. at 97 n.4] … The restrictions, both practical and legal, affecting the privileges and opportunities afforded to persons of Japanese extraction residing in the United States, have been sources of irritation and may well have tended to increase their isolation, and in many instances their attachments to Japan and its institutions. [98]  … Congress and the Executive could reasonably have concluded that these conditions have encouraged the continued attachment of members of this group to Japan and Japanese institutions. [id.] …  Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. [99]

The possibility that citizens and residents of Japanese origin confronted by pervasive government support for restrictions grounded in prejudice might react negatively provides constitutional defense for further restrictions: “Because we treated you badly we reasonably fear you and therefore treat you even worse.”  This is a vicious circle Robert Kaplan would appreciate – we too are (our history too is) Balkan.  (See generally Robert D. Kaplan, Balkan Ghosts (1993)).  It is also the sort of circle that Justice Kennedy’s own prescription in Rice (much like Justice Harlan’s in Plessy, we remember) means to break:  “The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions.”

We can now readily appreciate, for example, the balkanizing risk posed by the Seattle plan at issue in Parents Involved.  Students (and parents) were first invited to choose high schools and then – if racial demographics diverged from targets – particular students (and parents) were denied their choices precisely to correct the racial mix.  (See Parents Involved, 551 U.S. at 711-12)  It is hard to imagine this set-up as not introducing added racial tension in the families immediately affected.  (Justice Thomas notes a similar risk associated with the Louisville plan.  See id. at 759.)  Justice Kennedy’s endorsement in Parents Involved of structural remedies that aim to become part of the background – that appear as simply given in the individual case – is altogether consistent with this perspective.  None of these glimpses, I recognize, is necessarily dispositive.  There may well be countering considerations.  But we get a sense of risk, one side of what’s at stake.

Reva Siegel writes in a deliberately narrowed setting.  For purposes of this article she takes seriously only a few Justices of the Supreme Court – Justices Kennedy, O’Connor, and Powell: so-called centrists seemingly playing large roles in the Court’s own internal politics in the Roberts, Rehnquist, and Burger eras.  And she means also not to proceed too far beneath the surface of the opinions she reads.  Her aim is to pull out new starting points and not deep structures or fundamental contradictions or invisible hands.  This narrowing works like a lens in a way, focus intensifying force.

Not surprisingly, however, Professor Siegel has to take for granted some premises – most notably, that racial conflict is bad and that constitutional law ought not to proceed on any assumption otherwise.  At first glance, this does not seem like a controversial proposition.  I suppose similarly, for example, in my discussion of Hirabayashi.  In closely assessing schemes like that at issue in Parents Involved or messes of the New Haven sort, however, a more worked-out account might be needed.  But of course Balkan associations do much work – at least suggestively – in this regard as well (another sign of the success of Siegel’s article).  Indeed, we may learn something from the most basic Balkan “fact”:  Divisions along ethnic or racial or religious or national lines provoking antipathies — we know too, within our “American Balkans,” gender and sexual orientation, inter alia — if countenanced and persisting provoke horrific violence.  The obvious question becomes:  Why is legal use of violence-provoking terms therefore problematic?

• It cannot be because law does not involve use of force.  The opposite, obviously, is true.  It cannot be because law does not ordinarily provoke resistance.  Legal terms often appear arbitrary (to some), or provoke disagreement (among some), and in these ways, in all sorts of settings, increase social discord.  But there is a difference between the law’s own violence, or resistance — even violent resistance — to its terms, and violence which law foments or exacerbates by making use of already violence-inducing norms.  Law in these circumstances works to reinforce or augment conditions we tend to associate with law’s absence — “war of all against all.”  Law in these circumstances cannot be termed protective.  Rather, it provokes hazard.
• It seems especially wrong for legal instruments to use terms that are in themselves obviously violence-provoking: as though the instruments embrace that which they should forestall.  “Infernal” law-making, we might think.  But if it just turns out for some reason that certain terms, because of their independent associations, are violence-provoking (something not predictable in advance), this effect is no different, seemingly, from run of the mill resistance.  But why can’t law mean to induce intra-social violence?  To some degree it does.  Consider the doctrine of self-defense, the ramifications of bounties, or for that matter self-help repossession.
• Is it sufficient to note that in these cases violence furthers the law’s own purposes?  The lynch mob before trial or before conclusion of appellate review, however, appears to put at risk all legally-relevant considerations.  We care about this – if  we do – because  we mean for legal terms to supplant alternatives: we mean for law, as a complex of language and language-using institutions, to replace alternative regimes.  It is enough, perhaps, to recognize just this presupposition alone — to take law seriously means to take seriously its priority.  Terms within law that increase the likelihood of a-legal actions undercut legal priority.
• This account of course drains off all or nearly all of the horror integral to the incidents that provoke the inquiry.  But it also offers instead the beginnings of a description of an interior motive, an almost-positivist prompt or goad for judges, officials, and lawyers at large to oppose legal transplants of terms or arrangements borrowing or reinforcing antipathetic distinctions already too common in the society at large.  It affords one jumping off place, as it were, for a peculiarly legal resistance, a truly countering politics of law.
• The idea that grand horrors ought to lead to grand responses is tempting – it honors, after all, the form of corrective justice.  But it may matter more that the sense of horrors finds usual places — shows up , put to work, within and therefore reinforcing within ordinary analysis.  Isn’t this the opposite of denial?  Not occasional, marked as reserved for special occasions, otherwise forgotten:  the fact of outrage becomes a working part of social or legal work — a problem to be faced, to be remembered, to be acknowledged as implicated, a matter of ordinary responsibility rather than heroic response, and thus everyone’s task.

Reva Siegel’s article provokes thought – likely, in many cases, more sophisticated exercises than I have outlined here.  I like this article lots.  I suspect it will become even more pertinent after Fisher v. University of Texas.

Mark Tushnet

How do liberal democracies deal with threats to liberal constitutionalism, when those threats come from political parties willing to use the existing mechanisms of liberal constitutionalism to gain power–and then eliminate liberal constitutionalism? This question was a concern for scholars of constitutionalism several generations ago. More recently, the phenomenon has been captured in the slogan, “One person, one vote, one time,” associated with some positions taken at the first stage in a transition away from authoritarianism–though perhaps only to another form of authoritarianism. Transitional situations are one thing, though; established liberal democracies are another. The experience of Weimar Germany was taken as an illustration–perhaps inapt in detail but useful for thinking through the problem–of the use by antidemocratic forces of democratic means to attain power.

After World War Two Germany responded by embedding in its Basic Law the idea of militant democracy, developed during the war by the exile political theorist Karl Loewenstein. Many other nations have followed suit. Militant democracy extends to political parties the idea that nations can permissibly use force against subversive individuals. According to the idea of militant democracy, liberal democracies can permissibly ban antidemocratic political parties and deny their members the ability to serve in public positions, even in the bureaucracy (because they might use their discretion to favor their antidemocratic comrades). Militant democracy is constitutionalism’s resolution of the problem in political theory of whether and why we should tolerate the intolerant. And, like that problem, the one militant democracy addresses is difficult to resolve. Power-holders may well misdescribe political opposition as a threat to democracy itself, and seek to suppress political parties that are “merely” forceful opponents of their programs.

Liberal constitutionalism addresses the possibility of mistaken exercises in militant democracy through various forms of constitutional review lodged in independent courts. Let’s assume that constitutional courts mostly get things right. Still, relying on constitutional courts to enforce militant democracy may be insufficient. They might make what we can concede would be a rare mistake and reject an effort to suppress a political party–with disastrous consequences. Or, the ordinary mechanisms for securing compliance with judicial orders allowing an effort to suppress a political party– in particular, deference to the courts’ judgments because of their legal legitimacy–might be insufficient in the face of a threat to liberal constitutionalism that has already attained significant power.

Here’s where Ozan Varol’s article comes in. He shows that the sword–that is, the military–can sometimes intervene to support democracy against imminent victories by antidemocratic political parties using democratic means. As Varol points out, liberal constitutionalists typically shudder at the prospect of military coups–properly so, in some sense, because often, perhaps in a large proportion of instances, military coups are truly antidemocratic. But, Varol shows, sometimes coups are pro-democratic.

Varol offers three case studies: Turkey in 1960, Portugal in 1974, and Egypt in 2011. (It’s worth observing that the Egyptian story continues to develop, and that the ability of the Turkish military to intervene against extreme Islamist politics has been broken over the past decade.) Those military coups, Varol argues, were pro-democratic in the long run, though of course antidemocratic to the extent that they either displaced democratically chosen political leadership or blocked the possibility that elections rather than a coup could displace the authoritarian regime in place or prevent one from taking power.

Varol recognizes that identifying a military coup as pro-democratic is always tricky, because military officers, if they have any sophistication whatever, will almost always claim that they are stepping in to save the nation from itself. A key feature of the pro-democratic coup is that the military “facilitates fair and free elections within a short span of time.” This is problematic as a criterion for real-time evaluation because, again, a reasonably sophisticated military will always assert that its intervention is limited to a period of pressing emergency, and that it will step aside once fair and free elections occur. As I have noted elsewhere, this complicates the phenomenon addressed in a forthcoming article by Vicki Jackson and Rosalind Dixon, of international “enforcement” of a nation’s compliance with its own constitution.

In light of the obvious fact that some military coups are antidemocratic and a few pro-democratic, Varol’s provocative article opens up a line of inquiry into the conditions under which the military will be pro-democratic. I’m sure that such inquiries would have to say something about military recruitment of commanders and soldiers on the lines, and about the education in constitutionalism received by recruits at both levels. A scholar of constitutionalism should note that the possibility–and occasional necessity–of pro-democratic military intervention means that the American instinct, shared widely among liberal constitutionalists (I think), that civilian control of the military is a fundamental principle of constitutionalism, might have to be rethought.

Finally, I find Varol’s article valuable beyond its specific contributions about coups d’état. I think it should be understood as a contribution to a literature, which I hope will grow, that pluralizes the notion of normative constitutionalism. By that, I mean the development of some way of thinking about constitutionalism as a gradient rather than a binary. Instead of “liberal constitutionalism versus authoritarianism” (or “authoritarianism versus systems in transition to liberal constitutionalism”), we might begin to think about the possibility of “less liberal constitutionalism but not authoritarian either.” Varol’s discussion of the pro-democratic coup d’état will be an important part of such a literature.

Mark Kende and Matthew Shimanovsky

Chief Justice John Roberts, Jr. made headlines during his confirmation hearings by comparing judges to baseball umpires. Now imagine that umpires had the ability to secretly obtain expert and other opinions about whether a pitch is a ball or strike.  That is the question raised by Allison Orr Larson’s important new article, Confronting Supreme Court Fact Finding. Larson’s article shows how U.S. Supreme Court justices are actually doing more of their own fact-finding, rather than just acting as the nation’s highest appellate court of law.  Following Kenneth Culp Davis, she calls these findings “legislative facts,” to contrast them with “adjudicative facts.”  The article usefully explores the causes and consequences of this significant development.

Larson shows that some justices have used “in house” fact finding, beyond the crucible of the adversary process and cross examination, in 90 of 120 of the most important cases decided in the last 15 years.  Of those 90 cases, 47% cite to 4 or more sources outside of the briefs.  Larson says that the Internet has been instrumental in permitting such fact finding.  The Internet allows each justice to bolster an opinion, counter a scathing dissent, or justify overturning previous case law.

Larson highlights how several justices went treasure hunting in Brown v. Entertainment Merchant Assoc., 131 S.Ct. 2729 (2010). There, Justice Breyer’s dissent compiled an exhaustive appendix of the social science research on how violent video games affect children. Justice Thomas’ very different dissent referenced 57 sources, not cited by either party or the amici, to establish that parents had plenary legal authority over their children during the founding generation.  In addition to its use of the Internet, Larson argues that this pattern of independent judicial fact finding reflects a trend favoring empirical evidence.  These citations give the ruling a veneer of authority.  Justice Scalia, however, often chides his counterparts for including material outside the record—even though he himself included supplemental research in D.C. v. Heller, 554 U.S. 570 (2008).

Larson also provides a limited taxonomy of the Court’s “in house” fact finding.  She notes that the Justices have answered questions such as the emotional impact of prison, and how obesity helps cause other diseases.  This research even sometimes bolstered important constitutional interpretations.  Larson notes that no federal procedural rules bar use of legislative facts, though their use does not fit neatly into an adversarial system.

Larson then discusses her concerns about this development.  First, such material can perpetuate bias since it is not subject to the same kind of attack as trial evidence.  Moreover, Google is a wonderful tool, but its search engine depends upon user preferences.  Second, the Internet contains many untruths. It would be disastrous if erroneous information became the basis for binding precedent.

Larson also raises fairness and legitimacy questions.  The parties may feel sandbagged if the Court renders a decision based on facts that neither party presented.  In addition, the Court’s ability to use such policy oriented material could lead it to render broader decisions than it would otherwise, which would tread on the prerogatives of the democratically elected branches.

Larson concludes by suggesting that there are two alternatives.  Either the Justices should have free rein in this area, or they should be “minimalist” and stop engaging in their own research.  She briefly explains the pros and cons of each approach without drawing a definitive conclusion. As legal scholars debate questions such as strict versus flexible textual interpretations, Larson has shed light on the eclectic practical components that actually make up U.S. Supreme Court decisions.  Perhaps in the future, she will proceed in a more normative direction and provide her own set of recommendations.

William Baude

Some of the best constitutional history papers have a single conceptual move that makes you see the world differently.  Once you understand some previously unappreciated legal rule or piece of historical context, everything falls into place.  Jud Campbell’s forthcoming article in the Yale Law Journal, Commandeering and Constitutional Change, is just such a paper.

The topic is “commandeering”—i.e., whether the federal government can force state officers to execute federal law.  The Supreme Court has said that it cannot, because commandeering is inconsistent with state sovereignty.  Campbell’s central insight is this:  At the time of the Founding, commandeering was the Anti-Federalist position, not the Federalist position.  The Anti-Federalists thought that it was much better for state sovereignty to have federal law executed by their own officers.  They did not want a corps of officers in the states with federal paychecks and federal allegiance, and they were willing to accept commandeering, as opposed to voluntary cooperation, as the price of state execution.

In Printz, Justice Scalia rejected Alexander Hamilton’s arguably pro-commandeering statements by calling them “the most expansive view of federal authority ever expressed, and from the pen of the most expansive expositor of federal power.”  But Campbell’s insight shows us that when Hamilton supported commandeering, he was not putting forth an expansive view of federal power. Rather, he was conceding a point to the Anti-Federalists.  Hamilton had opposed state execution of federal law during the impost controversies under the Confederation government, and preferred independent federal enforcement.

Campbell walks through a lot of other Founding-era evidence, and his historical eye is very sharp; he’s even unearthed from the Filson Historical Society in Louisville a previously unknown 1802 circuit court opinion on commandeering and the Necessary and Proper Clause.  I find his account quite persuasive, from what I understand.  But the key to all of it is the conceptual move:  Once you understand that at the Founding the politics of commandeering were the opposite of what they are now, everything falls into place.

Plenty has been written about legal history scholarship and the comparative advantages of lawyers and historians in writing it.  In my view scholarship like Campbell’s illustrates what is best about history by lawyers, when they do it well.  Lawyers have an eye for conceptual moves that simplify or refract the existing evidence, and help us see the old world in a different light.

At the same time, Campbell’s piece also illustrates what is dangerous about the history work of lawyers when it is done badly.  The Justices in Printz assumed that commandeering had the same relationship to state sovereignty back then as it does now.  Because of that anachronism, they made the wrong assumptions about how to read ambiguous materials and gaps in the record.  It is worth noting that Campbell himself is cagey about the implications of his analysis: perhaps if the social meaning of commandeering has flipped since the founding, Printz is right as a matter of the living constitution.  But Printz is trying to be originalist, and Campbell shows that it is does it backward.

Campbell’s article is especially impressive since it his first.  It follows an excellent and sophisticated student note, which examines historical and legal reasons that would explain an absence of religious accommodation case law in the nineteenth century, even if such exemptions were thought to be constitutionally based.  I look forward to seeing what he does next.

Charles Shanor

Great scholarship in American constitutional law ranges from the conceptually original to the historically meticulous.  The most cited articles of all time contain far more of the former than the latter. This year’s scholarship contains a rare piece that is both conceptually groundbreaking and a deep historical dive.  An article of interest to multiple audiences, Nathan Chapman and Michael McConnell’s Due Process as Separation of Powers merits kudos from both conceptualists and historicists.

Chapman and McConnell note that due process, the “oldest phrase and the oldest idea in our Constitution,” has, perversely, become “the most unrecognizable in modern interpretation,” a phrase used to “subvert the separation of powers” by giving courts “a super-legislative power to change rather than enforce and interpret the law.”

The authors demonstrate that Fifth and Fourteenth Amendment due process, when applied by courts to constrain legislative power, had a very specific original meaning lost to both the judiciary and modern readers. This meaning is contrary to recent scholarly conclusions that (1) due process only applies to judicial process, (2) substantive due process enables judicial review of legislative policy choices violating judicial notions of property or liberty, even under proper procedures, and (3) substantive due process is contemplated under the Fourteenth but not the Fifth Amendment.

Here is the article’s core conclusion:

Legislative acts violated due process not because they were unreasonable or in violation of higher law, but because they exercised judicial power or abrogated common law procedural protections. … [T]he principle of due process extended to acts of the legislature in two narrow ways: statutes that purported to empower the other branches to deprive persons of rights without adequate procedural guarantees were subject to judicial review, and acts by the legislature that deprived specific individuals of rights or property were subject to similar challenge, either in the legislative forum itself or in the course of subsequent judicial consideration. (P. 1676.)

This encompasses a role for judicial review of some statutes, but avoids the Supreme Court’s current tool for such examination, substantive due process. In short, the Constitution rejected the British notion of Parliament’s supremacy, but did not trade parliamentary supremacy for judicial platonic guardianship.

Legislative adjudication of cases, though commonplace in Britain, was not contemplated in the Constitution. Nor was special legislation invidiously targeting specific persons acceptable to the Founders. Individualized punishment, dispute resolution, and the related tasks of finding the common law and interpreting statutes, were for the courts.  Law enforcement was for executive officers, but only when those officers were enforcing laws enacted by the legislature. The Founders would have thought the judiciary institutionally arrogant to throw out legislation for failure to satisfy a particular judge’s notions of natural law or enlightened policy, but would have been quite comfortable with a more particularized brand of judicial review that repudiated institutionally inappropriate legislative acts. Specific bars in the Constitution, such as those against bills of attainder and ex post facto laws, are consistent with this analysis. “The Framers specifically enumerated protections that they regarded as especially important, and then added a catch-all”—due process.

Chapman and McConnell delve into history to prove their points, quoting from and giving contextual explanations of early English and American authorities. In England, judges interpreted Parliament’s decrees, but had no authority for substantive due process review of legislation. In the American experience, colonists perceived that Parliament violated their rights by altering common law procedural protections and established property rights without a fair hearing. Colonial experiments with legislative supremacy collectively “led many Americans to recognize that legislatures, no less than executive officials, must be controlled by the force of law.” Alexander Hamilton, viewed by some as supporting substantive due process, only said there “must be certain procedural safeguards before someone may be deprived of his rights.”

Of course, students of the founding era are aware that structural constitutional law and individual rights have a deep synergy. After all, James Madison thought the Constitution’s structural provisions were so liberty-enhancing that a Bill of Rights was unnecessary. Eventually, Madison supported (and even drafted) the Bill of Rights. Even if it was unnecessary to protect citizens, it was essential to the Constitution’s ratification.

These questions remain central: (1) Does due process apply to legislative acts? (2) If so, how? The former is easily answered through a structural argument (Madison’s initial proposal was to locate the clause in Article I before Bill of Rights was appended to the Constitution) and a comparative argument (other Bill of Rights provisions clearly applicable to Congress were equally “silent about whom it prohibits from depriving rights” by use of the passive voice).  Addressing the second point consumes much of the article. The authors concede that the Framers believed in natural law—witness the Declaration of Independence—but find “no evidence that any [Framers] believed that acts of Congress would be evaluated by their conformance to natural law.”  Their view is consistent with the focus on positive law when it lists only the Constitution, acts of Congress, and treaties as “the supreme Law of the Land” in Article VI.

In a long historical section, Chapman and McConnell consider whether, as Ryan Williams argued in The One and Only Substantive Due Process Clause, 120 Yale L.J. 408 (2010), the due process clause of the Fourteenth Amendment should be read more broadly to encompass substantive due process. They answer no. They argue that a huge body of case law prior to ratification of the Fourteenth Amendment, plus the text and history of the amendment, show that “due process” was a structural limit on Congress to act only by legislating.  The due process clause of the Fourteenth Amendment was not an open-ended invitation for substantive overruling of statutes based on natural law or moral principles. Separation of powers principles rather than natural law controlled due process invalidation of legislation. This is the core of the authors’ case.

Neither quasi-judicial acts by legislative bodies nor rules operating on individuals rather than “general rules for the government of society” were allowed. Importantly, this latter category did not include statutes benefiting one or more persons where nobody was deprived of a right: absent deprivation, no process was due. Illustrative state and federal cases, dating from 1798 to 1853, are far removed from modern substantive due process. They rely on two structural principles, prospectivity and generality, while substantive due process invalidates some legislation that is prospective and applies to all citizens equally. All but two are fully explicable on “due process as separation of powers” grounds rather than substantive due process. “[T]he two faulty exceptions . . . prove the rule,” one being inconsistent with state court and Supreme Court decisions and the other, Dred Scott v. Sandford, being arguably the most despised Supreme Court decision of all time.

Chapman and McConnell show that, while abolitionists prior to the Civil War argued that higher law invalidated slavery, courts rejected those arguments.  After the Thirteenth Amendment (positive law) abolished slavery, abolitionists sought only the due process as separation of powers rights recognized for whites.  No abolitionist argued that the Fourteenth Amendment provided substantive due process rights.

The final section of the article, “Applications,” begins by noting that the theory of due process as separation of powers contains two challenges.  The first, distinguishing between the constitutional functions of the three branches, is resolved by holding legislation to standards of prospectivity and generality.  The second, interpreting whether facts fall within or outside these standards, “is surely exceeded by modern substantive due process, which has no consistent or reliable content beyond the Justices’ personal moral views.”

After dealing with the property and liberty to which due process applies, Chapman and McConnell turn to due process for the executive and the legislative branches.  They find Justice Jackson’s famous tripartite system for evaluating executive actions in the Steel Seizure Case “needlessly complicated”: if the executive took the company’s property without “an express or implied authorization of Congress,” due process was lacking. Where they stand on sole presidential powers, the “unitary executive,” and the Commander-in-Chief power is unclear, and less helpful than the guidance provided in Justice Jackson’s concurring opinion. Their take on delegation of authority by Congress—that unclear delegation should be construed as no delegation—represents a huge departure from current principles of deference, and their skepticism of military detention, which  “goes to the heart of the liberty protected by the Fifth Amendment,” is noteworthy.

Predictably, the article takes apart the classic substantive due process cases.  Here are some examples:  Lochner is insupportable as substantive due process but the Tenth Amendment “should have provided the determinative rule of decision”; Griswold’s inalienable right of couples to buy contraceptives “strains any reasonable construction” of the Constitution, but Privileges and Immunities might protect that right; Glucksberg and Troxel did “little to restore the original meaning of due process”; Roe is insupportable but “firmly established in precedent”; and Casey and Lawrence “put lawmaking beyond the reach of the government without a sound basis in the text, history, or jurisprudential practice of due process of law.”

And there is more.  This is important scholarship, broad-ranging and potentially game-changing. Will it help get the Supreme Court out of a deeply flawed doctrinal box? Unlikely, but only time will tell.

Ilya Somin

The Supreme Court’s decision in Hammer v. Dagenhart, 247 U.S. 251 (1918) is one of the most reviled judicial rulings in American history. The ruling struck down a federal law banning the interstate transportation of goods produced in factories employing child labor, holding that it exceeded Congress’ authority under the Commerce Clause. Right from the start, critics denounced Hammer as an unprincipled decision with awful real-world consequences, an attempt to legislate “laissez-faire” ideology form the bench. To this day, the case is often invoked to discredit efforts to enforce limits on the commerce power. Several critics have recently used analogies to Hammer to attack the case challenging the individual health insurance purchase mandate.

Logan Sawyer’s excellent article, Creating Hammer v. Dagenhart, is an important challenge to the conventional wisdom about Hammer. Sawyer questions the long-dominant view that the ruling lacked a basis in precedent, and demonstrates convincingly that it was not the product of “laissez-faire” thinking.

The statute invalidated in Hammer forbade the interstate shipment of goods produced in factories employing children under the age of sixteen. In Champion v. Ames, 188 U.S. 31 (1903), a closely divided Court upheld a federal law banning the interstate shipment of lottery tickets. The drafters of the federal child labor law believed their legislation could be upheld on the same basis. But the Hammer Court ruled that there is a distinction between laws restricting the shipment of “harmful” goods such as lottery tickets and alcohol, and “harmless” products, including most of those produced in factories employing child labor. The former fell within the scope of Congress’ power to regulate interstate commerce; the latter did not. Critics have long denounced this distinction as arbitrary, unprincipled, and motivated by an ideological commitment to “laissez faire.”

Sawyer investigates in detail the career of Philander Chase Knox, the prominent lawyer who developed the legal reasoning later adopted in Hammer. A former Attorney General and leading adviser to President Theodore Roosevelt, Knox was no advocate of laissez-faire, and in fact supported extensive government regulation – including federal regulation – of the economy. He was, among other things, a longtime advocate of strong federal antitrust laws and food inspection laws.

Sawyer shows that Knox advocated the distinction between regulation of interstate transportation of “harmful” and “harmless” items as a way of preventing Congress from seizing unlimited regulatory authority, and to protect the autonomy of state governments.  He also demonstrates that by 1918, the harmless item doctrine was already supported by a long line of judicial and legislative precedent.

Knox’s reasons for denying that the federal government had the authority to ban the interstate shipment of goods of any kind for any reason were not unreasonable. Otherwise, Congress could use this power as leverage to regulate almost any aspect of society. Even some contemporary critics of Hammer admitted as much. Harvard law professor Thomas Reed Powell suggested that “[n]o one would have the hardihood to argue in favor of the constitutionality of congressional prohibition of interstate transportation of all goods from states in which divorce is allowed or of all persons who beat their wives. Such [federal laws]… would wield the commerce power as a club to control local enterprises in no way dependent upon interstate commerce.” Both Knox and Powell claimed that the Commerce Clause should not be interpreted to allow Congress to use bans on interstate in transportation as a lever for regulating any activity it wished. They differed, however, on where the appropriate line should be drawn.

Sawyer might have strengthened his revisionist project by noting that, just as the legal case against Hammer is not as rock-solid as usually believed, the real-world effects of Hammer were also not as dire as conventional wisdom assumes. By the time Hammer was explicitly overruled in 1941, all forty-eight states had enacted laws banning child labor for children under the age of 14, and some banned it for children up to the age of 16, like the federal law invalidated in Hammer. This calls into question the longstanding belief that state regulation of child labor was impossible because of a “race to the bottom.” The supposedly “laissez-faire” Court unanimously upheld the constitutionality of state child labor regulations in Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913) just five years before Hammer. This left states free to adopt their own child labor restrictions. It also suggests that Hammer was not the result of judicial hostility to child labor regulation as such.

It is also unclear that the failure of some states to ban labor by children aged 14 to 16 was necessarily harmful. By modern standards, the United States in 1918 was a very poor society. In such an economy, banning child labor might deprive many poor families of much-needed income and leave children worse off than they would be otherwise – especially when one considers that many children barred from working in factories would likely end up working at home or on farms for less money and sometimes under more dangerous conditions. Indeed, farm labor by children was not banned under the law struck down by the Court in Hammer, and remains legal to this day.

Sawyer’s work certainly does not definitively prove that Hammer was correctly decided. Nor does that seem to be his intention. The text of the Commerce Clause does not distinguish between federal regulation of interstate trade in harmful as opposed to harmless goods. One may also believe, as many scholars do, that the Court should broadly defer to Congress on virtually all federalism issues Sawyer’s article also does not address the question of whether Hammer was consistent with the original meaning of the Clause, as opposed to legal and legislative precedent circa 1918. But Sawyer does effectively undermine the traditional view that this was one of the Court’s worst-ever decisions, a ruling lacking any legitimate basis in legal reasoning.

Sawyer’s article is part of a larger recent trend of academic reconsideration of the Lochner-era Supreme Court, most notably David Bernstein’s Rehabilitating Lochner. This growing revisionist literature finds that the Court’s decisions were both more defensible and less uniformly “laissez faire” than traditionally believed. This weakens claims that the decisions of that era – and by extension all judicial efforts to protect economic liberties and enforce limits on congressional power – are inherently suspect. It also undercuts the view that it is impossible for courts to engage in principled judicial review of “economic” legislation without enforcing total laissez faire.

Sawyer’s article will not be the last word on Hammer. But it goes a long way towards proving that a debate on this issue is actually necessary.  Thanks in part to Sawyer’s research, Hammer can no longer be dismissed as obviously indefensible.

Frederick Schauer

Good legal advocacy often involves characterizing hard cases as if they were easy, and describing indeterminate precedents or statutory provisions so as to imply that they clearly point in the direction of the advocate’s preferred outcome. And because the great majority of normative or prescriptive legal scholarship is committed by individuals trained and proficient as legal advocates, much of the scholarly output of the legal academy shares the same characteristic. Outcomes that are chosen are claimed to be compelled, and prescriptions that are desired are treated as inevitable. And because advocates whose favored outcomes rest on debated moral or political premises are reluctant to acknowledge the contested nature of the assumptions that drive their outcomes, it is common to see outcomes that are thought to be normatively desirable couched in the language of inevitability, and outcomes thought to be normatively undesirable described as impossible or simply logically flawed.

These pathologies are nowhere more apparent than in the domain of normative constitutional theory, where normative arguments and premises are frequently concealed in the language of linguistic, legal, or institutional necessity. A useful corrective has been provided by Andrew Coan, who attempts, with considerable success, to show that masking morally and politically normative theories of constitutional interpretation in the supposed nature of language itself, or in the inescapable implications of having a written constitution, is largely flawed.

Much, but not all, of Coan’s target is the recent spate of attempts to claim that interpreting the Constitution (or any constitution) according to some version of originalism is the logical entailment of the very commitment to a written constitution in the first place. Coan thus challenges a range of originalists spanning the political and ideological spectrum, questioning the views of Justice Scalia, Jack Balkin, Keith Whittington, and others, all of whom have argued that simply having a written constitution necessitates interpreting its language according to some version of original meaning.  But Coan, with an admirably careful and analytically precise argument, shows how  such arguments depend on normative assumptions that are not necessary parts of the nature of language or of the decision to write a constitution. Thus, using as an example an approach discussed briefly, but not featured by Coan, we can see that it would be far from impossible to understand and interpret a written constitution by reference to the current conventional meaning of its language. Such an approach may or may not be wise, and its problems might well outweigh its virtues. But as soon as we recognize that such an approach is at least possible, we are compelled to recognize as well that the argument for its alternatives—originalism, for example—involves a political, moral, and institutional choice. Originalism in one form or another might indeed be desirable, but because it is compelled neither by the nature of language or the very idea of a written constitution, it must be argued for on normative grounds. However, this is precisely what Coan argues many originalists seem loath to do.

Much of Coan’s attention is focused on originalism, perhaps because of its contemporary ubiquity and seeming political catholicism.  But the same problem of thinking that too much follows from the writtenness of a constitution, he argues, besets non-originalist perspectives as well. Just as originalism does not in any form inevitably arise out of the commitment to a written constitution, neither does common law constitutional interpretation, nor the idea of a living constitution, nor any other non-originalist approach to constitutional interpretation. Such approaches, no less than originalism, rest on normative values, values which Coan argues need to be justified explicitly and on their own terms rather than being treated as the inevitable implications of having a written constitution.

Coan is by no means the first to point out the normative moral and political groundings of various theories of interpretation. Mitchell Berman’s tendentiously titled “Originalism is Bunk,” 84 N.Y.U. L. Rev. 1 (2009), for example, castigates a gaggle of originalists for denying the political and moral underpinnings of their approach. But Coan goes further than many of his forebears, partly because his target is as much non-originalism as it is originalism, and partly because his focus is so much on the idea of a written constitution itself. Ever since John Marshall proclaimed in McCulloch v. Maryland that “we must never forget that it is a constitution we are expounding,” constitutional advocates have insisted that all sorts of interpretive and substantive approaches follow inexorably from the very fact of there being a written constitution. A careful reading of Coan’s article will show why Justice Marshall was mistaken in believing this to be so in 1819, and why a host of theorists of all stripes are mistaken in believing this to be so now.

Coan’s arguments are supported by analytic precision, careful argument, useful distinctions, and just the right amount of philosophy. He does not use the philosophy of language to display his erudition, and he recognizes that philosophy is useful in legal scholarship when it illuminates legal issues and legal problems. It may be useful for philosophy to use legal examples and legal problems to sharpen philosophical analysis, but legal scholarship that seeks simply to put legal issues into philosophical categories misses a valuable opportunity to use philosophy in the service of legal analysis. It is to Coan’s credit that he does this so well.

Paul Horwitz

Randy Bezanson’s recent short piece, Whither Freedom of the Press?, is an instructive example of how to get around an obstacle—two obstacles, really. The first is the Supreme Court’s opinion in Citizens United v. FEC, 130 S. Ct. 876 (2010). In the course of striking down a law prohibiting the direct use of corporate or union treasury funds for electioneering communications, the Court stated that “the institutional press has [no] constitutional privilege beyond that of other speakers.”

The second obstacle is actually more formidable. In a recent article in the University of Pennslyvania Law Review, Freedom of the Press as an Industry, or for the Press as a Technology?: From the Framing to Today, Eugene Volokh takes on the view of some writers, including Justice Stevens in his dissent in Citizens United, that the Press Clause of the First Amendment provides some form of protection to the press as an “industry” or institution. Volokh argues that the Press Clause protects the press only “as a technology”—that it secures only “the right of every person to use communications technology,” and grants no special privileges to the professional or institutional press as such. Skillfully marshaling extensive historical sources, Volokh concludes that the evidence “point[s] powerfully toward the press-as-technology reading” of the Press Clause, “under which all users of mass communications technologies have the same freedom of the press” and journalists qua journalists have no unique privileges.

Volokh closes in a quietly brutal fashion. He acknowledges that “the Supreme Court has never limited itself to analyzing constitutional provisions based solely on historical sources,” thus leaving open the possibility of an institutional reading of the Press Clause. His research “simply” shows, he adds, that “an argument for a press-as-industry interpretation of the Free Press Clause must rely on something other than original meaning, text, purpose, tradition, or precedent.” Which is to say, virtually every standard interpretive source.

What do you do if, like Bezanson, you favor a different reading of the Press Clause, but you think Volokh has done a fair job “when judged by the spare and spartan doctrine of textualism and originalism?” What do you do when the biggest tree in the forest stands directly in your way and you are armed only with a knife? There are two basic options: move around it, or dig deep enough underneath it to bring the whole thing down. Bezanson’s article is a nice illustration of both methods. Whether he succeeds wholly in getting around his obstacle or not, this short piece is a pleasure to read just for its forensics.

The first lesson Bezanson teaches us is to go after the weakest link. In this case, that is Citizens United itself. As he notes, Justice Kennedy’s treatment of the press in his opinion is characteristically “offhanded.” Kennedy cites many cases concluding that the First Amendment rejects distinctions based on a speaker’s identity, and a smaller number of cases suggesting that the press is entitled to no special constitutional privileges. But he ignores many decisions and statutes treating the press differently, such as “exemptions from taxation and regulation, . . . differential postal rates, sales and use tax exemptions, and media exemptions under the campaign laws themselves.” Either these laws are all unconstitutional, or “the press guarantee means something different from the speech guarantee, which the Court denies.” Bezanson concludes that Kennedy’s broad statements are poorly grounded and that Citizens United ultimately says “nothing at all significant or important or even controversial about freedom of the press.”

This leaves Bezanson in a better position to take on Volokh himself. And where better to begin with the Press Clause itself? He makes the obvious point that it is “textually awkward” to simply read the Press Clause “out of the First Amendment.” The reader is primed to believe that it must mean something, and something non-trivial at that. This shifts the burden on Volokh.

Volokh has an answer, of course: the Press Clause simply means that all speakers, whether they belong to the institutional press or not, are entitled to use technologies of mass communication. In Bezanson’s view, Volokh presents a false dichotomy, under which the “press” either refers to something “institutional” or something “technological.” But “no legal scholar who has examined the ‘press’ question has seriously entertained the sparse and barren meanings” Volokh presents as the only alternatives. Rather, “the meaning and role and rights of the press under the First Amendment are complex, culturally and technologically situational, functional, and broadly historical questions.” Volokh’s rejection of this admittedly vague description is thus implicitly treated as a failure to think deeply and maturely about the issue: “As an originalist Professor Volokh will have none of that.”  What scholar wants to deny the capacity to think in “complex” ways about a deep social and historical question?

Having hinted at the insufficiency of Volokh’s views and the incompleteness of Kennedy’s broad and unhelpful dicta about the Press Clause, Bezanson is in a better position to present his alternative vision. For Bezanson, a raft of excellent historical scholarship demonstrates that the Press Clause involved more than technology. Historically, it is closely linked to “our constitutional conceptions of freedom and democratic self-government.” The Framers believed, in the words of Press Clause scholar David Anderson, that “freedom of the press was inextricably related to the new republican form of government and would have to be protected if their vision of government by the people was to succeed.” Bezanson adds that his point “is not to establish that the Court or Professor Volokh is wrong,” but “to emphasize that there is a rich scholarship on the questions of the press’s meaning and rights that deserves attention and that a common thread in the scholarship is attention to purpose and function in defining and protecting the press.” In effect, he is saying to Volokh, you can have your historical evidence, but you’ve missed something deeper here. Of course, whether this scholarship is successful as a historical matter is precisely the point of Volokh’s article. But Bezanson treats the very existence of competing scholarship as evidence that something is missing from Volokh’s argument.

Having argued that there is some basis for differential treatment of the press, Bezanson then turns from history to policy, asking whether there are good justifications for a “constitutionally distinct press freedom.” This allows him to spend the rest of the piece side-stepping Volokh’s historical evidence and presenting a vision of the Press Clause itself, until we almost forget that Volokh’s alternative reading exists. Bezanson does a fine job presenting that vision, which distills years of his own work and that of other scholars.

For Bezanson, the press’s relationship to self-government poses “distinct dangers of compromising the press’ independence.” That independence turns on “the nature of the expressive and communicative decisions the press makes”—on the professionalized “journalistic editorial processes and judgments” that are consistent with “the assumptions of truth-seeking and public information and opinion upon which our democracy functions.” Those specialized functions, and their contribution to democracy, present “distinct freedom of the press questions, not just freedom of speech questions.” Finally, he argues that a distinct element of the press’s importance to public discourse is its independence from government. But government speech doctrine suggests that the government can speak as it wishes, including speaking as “the press.” Since Bezanson has already posited the importance of press independence, this allows him to argue that whatever government may do by way of aping the press, there must be some different institution called “the press” that remains constitutionally distinct from the government. That is true even in a world of shifting technology, in which millions have access to the technology of mass communication. Amidst this “cacophony” of voices, Bezanson argues, we need something more. We need a press that serves as “an essential voice with a purpose and function borne of independence and the needs of democratic self-government,” one characterized by press values of “disinterestedness and devotion to the unreachable, yet noble, ideal of truth.” Nothing less will do for a functioning democracy.

This is all skillfully accomplished. By linking Volokh to Citizens United, Bezanson can attack Volokh indirectly by criticizing Justice Kennedy’s typically broad statements. Rather than go after Volokh’s history directly, his summary of the competing scholarship allows defenders of an institutional version of the Press Clause to avoid feeling fatally undercut by Volokh’s evidence. By shifting his ground from history to policy reasons for a functionally oriented version of press freedom, he moves the discussion to safer ground. And he deploys one last technique: the sacrifice play. Many scholars of press freedom have argued that it includes some positive rights, especially a right to engage in newsgathering. Bezanson writes that he has “long been skeptical about many of these press claims,” but that they “do not lie at the center of things.” By throwing overboard claims for newsgathering protection or the protection of confidential sources, he leaves us with a diminished “functional” press, but avoids the difficulty of swimming against a stream of constitutional doctrine that generally disfavors positive privileges, let alone institutional privileges.

If this all sounds like damning with faint praise, it’s not. Bezanson’s article scores some nice points. History is painting a picture, not doing a sum, and even a sound use of originalism that neglects serious historical work in this area leaves something to be desired. It’s discomfiting, at least, to read an 80-page treatment of the historical meaning of the Press Clause that doesn’t mention the work of Paul Starr, William Siebert, Robert Martin, Anuj Desai, and Leonard Levy (cited once but peripherally in Volokh’s paper), among others, that doesn’t mention early postal subsidies for newspapers, that doesn’t fully grapple with the early development of competing themes of “free press” and “open press,” and so on. Volokh’s article is good as originalism but incomplete as history. There is much more room for Bezanson’s argument for a functional or institutional component of the Press Clause than Volokh’s dismissive conclusion implies. Although I am more sympathetic than Bezanson to the possibility of press rights relating to newsgathering, he does a fine job in a short space of presenting compelling arguments for his vision of the Press Clause.

But it is his forensics I find especially fascinating. Volokh’s superb article and Citizens United both pose serious challenges to defenders of institutional press freedom. By ridiculing the opinion and mostly leaving  Volokh’s article untouched while working around it, Bezanson gives us an artful example of lawyerly argument as jiu-jitsu.

Mark Tushnet

The Texas Law Review recently published an important symposium on Latin American constitutionalism. Many of the articles make important contributions to the field of comparative constitutional law, not least because the English-language literature in the field has been dominated by discussions of constitutional doctrine in Europe and North America. (Not surprisingly, the part of the literature on creating constitutions has had a wider geographical range.)

The two articles I have singled out deal with a phenomenon of growing importance outside the United States, the judicial enforcement of social and economic – so-called “second generation” – rights. Interpreting constitutions adopted or amended substantially much more recently than the U.S. Constitution has been, constitutional courts around the world have moved past the question on which U.S. scholars typically focus – whether courts should enforce second-generation rights – to consider how to do so. Or, perhaps more precisely, many courts have embarked on projects of enforcing second-generation rights, and their performance allows scholarly evaluation, informed by actual experience in additional to theoretical speculation, of judicial enforcement of second-generation rights.

These articles examine judicial performance in Brazil and Colombia, and offer rather different evaluations. Octavio Luiz Motta Ferraz examines litigation in Brazil over the right to medicine, and as his subtitle indicates he is not impressed. Right-to-medicine cases arise when an ailing person believes that he or she would benefit medically from a prescription drug not available through the nation’s health care system, and seeks a judicial order directing that the system make the medication available to the claimant. These right-to-medicine cases have been strikingly “successful” in Brazil, in the sense that large numbers of patients win their cases and get access to the medication – but at great cost to the nation’s health-care system. Motta Ferraz reports estimates that more than 40,000 lawsuits a year are filed, and that almost all are successful. He gives the example of one case that has, he says, become “paradigmatic.” The case involved a patient with Duchenne’s muscular dystrophy, a “genetic degenerative disease that affects muscle cells and progressively leads to the death of the patient.” A private clinic in the United States offered the only treatment with any promise, at a cost of more than $63,000, which Motta Ferraz observes is “about twenty times Brazil’s nominal GDP per capita.” Rejecting the government’s objection that ordering it to provide the treatment would stress its resources (and thereby undermine its ability to provide health care to large numbers of Brazilians less well-to-do than the claimant), the Supreme Federal Court held that the “inviolable rights to life and health” required that the treatment be provided.

Motta Ferraz finds this and similar results troubling – as he should. The Brazilian experience shows that enforcing second-generation rights through ordinary, case-by-case litigation is unsatisfactory, for several reasons. Motta Ferraz notes that this enforcement mechanism disproportionately favors relatively well-off litigants (well-off in terms of wealth, of course, not health) over poor litigants, because the former group are likely to be more knowledgeable about their rights and, perhaps more important, better able to get access to legal representation and so better able to get into court in the first place. In addition, the government’s invocation of what in other contexts would be described as a risk-risk tradeoff (the risk to the litigant’s health traded off against the risks to the health of a much larger number of people not before the court) shows how case-by-case litigation can interfere with the kind of planning that a sensible system of health care provision requires.

Notably, though, the difficulties Motta Ferraz describes arise from the form of the litigation (as well as from what Motta Ferraz describes as the “absolutist” characterization of the right to health by the Brazilian courts, an approach that in the end I think is not separate from the case-by-case litigation form). Courts in other constitutional systems have taken a different approach, most notably in developing litigation forms that induce consultation between the government and affected constituencies and also induce rational government planning to ensure that second-generation rights are respected.

César Rodriguez-Garavito describes one of these alternative litigation forms, drawing on Colombia court orders dealing with efforts to provide housing and social integration for “internally displaced persons,” most of whom were the victims of Colombia’s widespread political violence over the past generation. Opening his article with a dramatic depiction of a “hearing” in the Colombian Constitutional Court, which to all appearances could have been a hearing before a committee of the Colombian parliament, Rodriguez-Garavito analyzes the Court decision that led to the hearing. In 2004, the Court “mandated that the government formulate a coherent plan of action to tackle the IDPs’ humanitarian emergency and to overcome the unconstitutional state of affairs, …, ordered the administration to calculate the budget that was needed to implement such a plan of action and … instructed the government to guarantee the protection of at least the survival-level content … of the most basic rights – food, education, health care, land, and housing.”

Rodriguez-Gavarito then evaluates developments since 2004, listing several “major effects.” First, the decision changed the agenda for state bureaucracies. No longer could they ignore, or give a low priority to, the rights of IDPs. Rodriguez-Gavarito properly describes this effect as resulting from the exercise of a “destabilization right” of the sort identified by Charles Sabel and Roberto Unger. Second, it induced the agencies to coordinate their efforts, a particularly important effect given the cross-cutting nature of the needs of IDPs. Third, the decision induced participation by IDPs and supportive non-governmental organizations in the development of the relevant policies. Fourth, the decision had the effect of “reframing” the claims of IDPs. Rather than being seen by the public as persons in need of social assistance, they became seen as holders of constitutional rights.

Yet, Rodriguez-Garavito acknowledges, “the situation has changed little: although access to education and health care has dramatically improved, benefitting nearly 80% of IDPs, conditions with regards to all other [social and economic rights] continue to be unsatisfactory. To illustrate, 98% of IDPs live in poverty, only 5.5% have adequate housing, and only 0.2% of displaced families received the legally mandated emergency humanitarian assistance in the months immediately following their forced displacement.” One might wonder about the claim that little has changed if “access to education and health care has dramatically improved.” But, suppose we accept Rodriguez-Gavarito’s overall evaluation. Does this mean that the Court’s efforts failed – or “only” that achieving real change under the conditions in Colombia is quite difficult? The evaluation must in the end be comparative: Were the IDPs better off after the Court’s intervention than they would have been had the Court done nothing? The other effects Rodriguez-Gavarito identifies suggests that the answer is, “Yes.”

As I indicated at the outset, recent studies of judicial performance in enforcing social and economic rights suggests that the debate over second-generation rights should be reframed, so to speak. Instead of debating whether courts should enforce such rights, scholars might profitably turn their attention to other questions: When courts enforce such rights, how should they do so? Which litigation forms are appropriate and which inappropriate for these projects? What implications, if any, are there for the enforcement of first-generation rights if we conclude that traditional forms of litigation are unsuitable for enforcing second-generation rights? And, of course, is it possible to identify conditions under which the enforcement of second-generation rights is likely to be relatively more or relatively less successful?