The Long Arc of the Accommodation Debate

Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law, 66 Stanford L. Rev. 1205 (2014).

Two frequent questions arise about the Jotwell project. Should we focus more on deserving articles that haven’t received much attention? And does liking an article “lots” preclude selecting articles one disagrees with? Today’s contribution does not do much to address the first concern. The article discussed here is by a well-known author, was well-published, and has already garnered attention—although less than it deserves, in my opinion. But this Jot does more or less meet the second criterion.

Samuel Bagenstos’s excellent article, The Unrelenting Libertarian Challenge to Public Accommodations Law, has troubled me for a year now. Anyone seeking to elaborate, and in some cases defend and expand, the developments it describes and, I think, implicitly criticizes, must reckon with it. As this Jot argues, however, so must supporters of Title II, who may find that their arguments defending it, and their reassurances about its scope and limits, are equally subject to the undermining logic of Bagenstos’s own critical—or Critical, if you like—argument. As he concludes, the conflict over just “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres” is a real one, and unlikely to go away, for reasons that apply to both sides in the debate.

Bagenstos’s article is one of the first, and still possibly the best, of what has become a cottage industry of articles, first anticipating and then following in the wake of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. Call it the “neo-Lochnerism” line of scholarship, in keeping with alarums about neo-liberalism, neo-conservatism, and other “neos.”

This scholarship warns of a looming, or perhaps burgeoning, revivalism of libertarian arguments, echoing the libertarianism conventionally associated with Lochner v. New York and its sequelae. Various examples are offered, with Hobby Lobby and other challenges to the Affordable Care Act figuring prominently and sometimes linked to cases like Citizens United. The authors of the movements are also variously identified: is it a case of the “theorists lead[ing]” and “opinion leaders” and judges “eventually follow[ing],” or one of close cooperation between a “vocal group of American legal scholars” and “well-funded conservative foundations?” But its threats to “liberal democratic constitutionalism,” as Jean Cohen puts it, are clear and it “should be resisted wherever it arises.”

Often enough, the project is mostly normative; indeed, in a constitutional culture in which history is much more influential than theory, the description is the resistance. Calling something the “new Lochner” is like naming your firstborn—or, better yet, someone else’s—“Loser”; it places a heavy thumb on the scales of affective, not intellectual, evaluation of the merits. The analogy may be sincerely offered, but the rhetorical strategy is baked in.

That said, Bagenstos states early on, “My main goal in this Essay is analytic and descriptive,” and I take him at his word. He helpfully narrows his focus to a particular area: the law regulating discrimination in public accommodations. He does not allow affective, and thus potentially judgment-distorting, analogies to usurp the place of reasoned argument. Although his article is, in my view, a progenitor of much of the neo-Lochnerism literature that has followed it, it references Lochner without using it as a cudgel. And Bagenstos’s broad theory is not, as some of the neo-Lochnerism literature sometimes is, redolent with implicit accusations of some vast right-wing or libertarian conspiracy, overt or covert.

Nevertheless, his central thesis is important: that there has been a notable continuity in the resistance to public accommodations laws. The language and concepts, and the legal framework to the challenges, have changed. But “the law of public accommodations discrimination remains preoccupied by the same sorts of questions that it once confronted. . . . Today’s controversy regarding public accommodations is a controversy about whether the civil rights category should cede back some of the territory it once conquered from the category of social rights.” (P. 1209.) At least at a certain level of abstraction, Bagenstos makes a strong case for that continuity.

The controversy starts with a tension, dating “from the moment the American civil rights project began,” over “how broadly and deeply equality principles should extend into civil, economic, and social relations.” (P. 1209.) At the outset, these debates conformed to a “tripartite theory” of civil, political, and social rights, with fierce disagreement over whether particular conduct and laws fit properly within a given category, and especially whether it fell under the more unregulable “private” or “social” sphere. The connection between the two terms is important: As Bagenstos notes, “For many during the Reconstruction era, the civil-rights/social-rights distinction served a function like the one that the structurally similar public-private distinction would later be understood to serve—to preserve a sphere of private, individual choice.” (P. 1212.) It is thus “hardly surprising,” as he observes, that the distinction, like the public-private distinction, “proved to be unstable and continually contested.” (P. 1212.)

By the time the civil rights era of the mid-twentieth century began, “people no longer spoke in terms of civil rights versus social rights.” (P. 1213.) The Supreme Court’s powerful statement in Brown v. Board of Education, whatever its actual underpinnings, “came to be understood as embracing a generic principle of equality.” (P. 1214.) Although the language of resistance changed, however, “the substantive concerns that underlay [the old] theory continued to play a major role in political and legal debates”—in particular, the debate over Title II of the Civil Rights Act and its strictures against discrimination in public accommodations. (P. 1214.) But the arguments were now framed primarily (although not exclusively; Bagenstos has an interesting excursus on the use of Thirteen Amendment arguments) “in the libertarian terms of freedom of association.” (P. 1215.) However framed, “these libertarian objections invoked the same notions of preserving private choice that underlay the civil-rights/social-rights distinction.” (P. 1217.)

Those arguments failed in the political and legal arenas. Bagenstos writes: “This history might lead us to conclude that the civil-rights/social-rights distinction no longer matters in the law.” (P. 1218.) Not so, in his view. Contests over these categories’ boundaries continue—indeed, are proliferating—today: “[W]e are edging closer to reengaging precisely the same fights that occurred in the years surrounding the passage of Title II of the Civil Rights Act.” (P. 1219.) And the libertarian arguments for a robustly private sphere, if “taken seriously, threaten the core of Title II.” (P. 1219.) (If Bagenstos is clear on the perceived danger, however, he is careful to note that the libertarian agenda he describes is not the same as “an agenda to promote private-sector discrimination.” (P. 1219.))

Bagenstos concedes that the threat is mitigated—or, perhaps, merely redirected—by the profound political strength of Title II, at least as it applies to race. When Rand Paul questioned Title II during his 2010 campaign for the Senate, the blowback was swift and the objectors included libertarians; but the libertarian objections, he suggests, were pragmatic and political, not philosophical. Meanwhile, other trends suggest renewed assaults on the Title II citadel. In particular, Bagenstos focuses on the freedom of association claim made in Boy Scouts of America v. Dale. Some defenders of that decision assert that “Dale poses no threat to the application of public accommodations laws to for-profit businesses.” (P. 1220.) But Bagenstos argues that such a distinction is unstable, and thus offers little reassurance that the challengers’ logic wouldn’t eventually lead to a civil-rights/social-rights divide “in almost exactly the same place Robert Bork would have drawn it in the 1960s.” (P. 1220.) That provides the foundation for his last example, one that continues today: the religious challenges to the contraception mandate and related requirements, which rely on “a theory that would collapse the expressive-commercial distinction” (P. 1220) and thus put “skeptics of public accommodations laws . . . in a position to potentially block further expansion of those laws—and even to threaten their core applications.” (P. 1240)

This is a strong argument, clearly made. It is, perhaps, a fair question how much this is indeed a purely “analytic and descriptive” project, and how much it constitutes the framing of a strategy for the defense of Title II against recent arguments for religious accommodation. One’s answer to that question may depend on what credit one gives to criticisms of Bagenstos’s argument, some of which may be found in Richard Epstein’s piece in the same symposium issue of the Stanford Law Review. But much of the reason for any skepticism on that score lies elsewhere than in Bagenstos’s article itself. Some of that skepticism is a product of the more visible partiality of some of the later pieces in the neo-Lochnerism genre. (On that, readers should consult a forthcoming article by Marc DeGirolami, which contends that this literature ends up summoning the specter of Lochnerism only to defend the primacy of unenumerated constitutional rights over enumerated ones. That’s an odd position, to say the least.) But much of it can be laid at the feet of the frequent normative and rhetorically loaded nature of legal scholarship itself. It has long since justifiably eroded suspicion about even those works, especially in public and constitutional law, that purport to be purely disinterested acts of scholarship.

It is clearly unfair to hang all that skepticism on Bagenstos, however. No matter their priors, people interested in public accommodations laws can profit a great deal from this article. Libertarians will find much valuable history and analysis, and perhaps an invitation to display greater candor or self-awareness about the nature of their project. Those who champion religious accommodation, even in the realm of public accommodations, for non-libertarian reasons will also find cause for concern here. For reasons both strategic and sincere, few supporters of religious accommodation want to attack entirely the underlying logic of laws forbidding discrimination in public accommodation, at least where race is concerned. Much of their own project consists of efforts to draw reasonable lines between for-profit and non-profit enterprises, or between the public and private or civil and social spheres. In doing so, they will have to reckon with Bagenstos’s article, which reveals the potential instability or incoherence of those efforts.

And defenders of an expansive reading of public accommodations laws, in the face of religious or other challengers and seekers of exemptions? They, too, ought to have reason for concern after reading Bagenstos’s article. That is perhaps the best evidence of its success as legal scholarship, of its genuinely analytic and descriptive nature. This is not simply a liberal critique of the libertarian challenge, but a critical take, drawing on the literature of Critical Legal Studies. Like the public-private distinction, he argues, the distinction between civil and social rights turns out to be “unstable and continually”—we might even say essentially—“contested.” Here, he cites Duncan Kennedy. Similarly, efforts to draw a distinction between commercial and expressive associations are “unstable.” He acknowledges that multiple readings and legal options are available in response to what, quoting Jack Balkin, he calls a “pervasive welfare state.”

Little wonder, then, that “[w]e continue to struggle over the proper placement of the civil-rights/social-rights line, nearly fifty years after Congress and the Supreme Court supposedly laid that distinction to rest.”(P. 1220.) Little wonder, too, that more conventional liberal appeals to the distinction between commercial and expressive association or between for-profit and nonprofit businesses, offered to defend state power by demonstrating that there are discernible limits on the state’s broad reach, appeal more to authority than to persuasive argument. (Witness Justice Ginsburg’s dissent in Hobby Lobby itself.

If there is a surprise in the current neo-Lochnerism literature, it is that so much of it relies on Critical Legal Theory’s insights, yet virtually none of it cites the literature, or acknowledges the double-edged nature of those insights. A Westlaw search for articles containing the terms “Lochner” and “Hobby Lobby” since the beginning of 2012 yields 43 results; add “Duncan Kennedy” to the mix and the number plummets to two. One is mostly irrelevant, and the other is Bagenstos’s article. To reveal the instabilities in another’s argument is human; to fail to notice that you have also dug a hole under yourself is, well, all too human. It is telling, perhaps—whether of extreme certitude or great insecurity is not clear—that these efforts to entrench a new liberal settlement routinely deploy the Crits’ analytical moves, but otherwise consign the Crits’ names and works to the memory hole.

Therein lies the relative weakness of the new defenses of public accommodations laws against religious challengers, and the scholarly strength of Bagenstos’s piece. It does indeed suggest a more sweeping arc to the narrative of challenges to public accommodations laws, one connecting past, present, and perhaps future. It does so on a sound basis, mostly without appealing to essentially irrelevant arguments about the challengers’ motives or funding. (I think it would have been sounder still if, in describing shifts in arguments over the years, it had been clearer in noting that those changes are an inevitable consequence of changes in our legal surround, often internalized by those making the arguments, and not necessarily a set of intentional or covert tactical choices.)

Most important, it recognizes that the instabilities and uncertainties in this area are inevitable and universal. The question “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres”—whether its limits are substantial, whether the government may override associational choices altogether, or whether the balance rests at some unstable point in between—is and must be a subject of continuing contestation and re-evaluation. Every new era, with its fresh controversies, demands its own renegotiation—if not of the unstable line between “public” and “private,” then of the reasonable reach and limits of state power in practice. Hence the haunting nature of Bagenstos’s fine article. On these questions, legal scholars may have much to say about the particular workings of legal doctrine at any given time, and a little to say about legal theory. But on the core question itself, their contributions will be of little real or lasting value.

Cite as: Paul Horwitz, The Long Arc of the Accommodation Debate, JOTWELL (November 24, 2015) (reviewing Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law, 66 Stanford L. Rev. 1205 (2014)),

Can Abusive Constitutionalism Be Checked?

David Landau & Rosalind Dixon, Constraining Constitutional Change, 51 Wake Forest L. Rev. (forthcoming, 2015), available at SSRN.

Changes to constitutional law do not always further beneficial ends. Sometimes, in fact, they do the opposite, with political actors utilizing mechanisms of constitutional law-making to consolidate their powers, entrench themselves in office, marginalize opposition, and otherwise undermine basic democratic values. Under these circumstances, a constitution can find itself in the perverse position of enabling rather than constraining abusive governmental action—subverting the very principles that it was originally intended to promote.

Comparative constitutional scholars have puzzled over the question of how to prevent “abusive constitutionalism” of this sort. To date, they have focused largely on mechanisms of constitutional amendment, considering ways in which an existing constitutional regime might structure its internal rules of change so as to frustrate a would-be autocrat’s anti-democratic amendment efforts. For example, timing requirements and supermajority voting procedures might render undesirable amendments especially difficult to enact; “eternity clauses” might safeguard essential provisions of a constitutional text against the threat of repeal; and the doctrine of “unconstitutional constitutional amendments” might empower courts to invalidate some forms of anti-democratic action after the fact. In these and other ways, amendment-restricting devices might manage to prevent at least some abusive amendments from ever taking effect.

These are important tools, which have enjoyed some measure of success in the real-world. But, as Professors David Landau and Rosalind Dixon point out in their wonderfully thought-provoking article, Constraining Constitutional Change, even a fail-safe set of constraints on the amendment process cannot eliminate the specter of abusive constitutional change. Looming in the background is the alternative and more daunting possibility of wholesale constitutional replacement—the outright rejection of an old constitutional order (including its amendment rules) in favor of a brand-new constitutional regime. Where amendment rules threaten to foil a would-be autocrat’s abusive constitutional ambitions, that official might simply choose to take the replacement route instead.

All of which sets the stage for Landau and Dixon’s inquiry, namely the question whether “courts and constitutions might deploy doctrines constraining constitutional replacement.” (P. 2.) Put differently, Landau and Dixon explore the extent to which existing legal safeguards against the threat of abusive constitutional amendment might be adapted to confront the threat of abusive constitutional replacement. This possibility has received only limited attention in the existing scholarly literature. Landau and Dixon convincingly demonstrate that it deserves much more.

Landau and Dixon begin their analysis by successfully rebutting two threshold objections to their project, one theoretical and the other practical. Beginning with the theoretical objection, Landau and Dixon note that “constitutional replacement is usually seen as being an act by ‘the people’ outside of existing legal or constitutional rules,” in which case courts or other old-regime institutions might have no justifiable grounds for injecting themselves into the process. (P. 6.) That objection, Landau and Dixon suggest, may prevail as applied to a genuine exercise of the “constituent power.” But the real prospect of abusive constitutionalism suggests that not all replacement-related efforts will qualify as such. Replacement processes, just like amendment processes, “can be manipulated in order to serve the agendas of authoritarian actors and parties,” and when that is so it will at least be “open to dispute, or argument, as to whether a set of particular elected leaders, or popular political leaders, can legitimately claim to speak for a majority of citizens, or the people as a whole.” (P. 6.) Even accepting that courts and other institutional actors should defer to a genuine expression of the popular will, not all attempts at constitutional replacement will in fact reflect such an expression in the first place.

But even if we accept the legitimacy of legal constraints on the replacement process, we can still question their practical value. Replacement efforts, in contrast to their amendment-based counterparts, directly challenge the foundations of a prior constitutional regime. That being so, one might wonder why the proponents of these efforts would have any reason to care whether a court or some other institutional actor has declared them to be acting extra-legally. But Landau and Dixon have a persuasive response to this objection as well: abusive efforts at replacement, they point out, “tend[] to occur during periods of high political turmoil,” such that “restraints on constitutional change,” though by no means guaranteed to work, might valuably “act as a ‘speed bump’ in order to slow abusive processes.” Even just by slowing things down a little, legal intervention might prove “critical in allowing opposition actors to organize and prevent the anti-democratic change.” (P. 7.) Of course, the extent of a constraint’s influence will depend on a host of political factors, including the power and popularity of a replacement movement’s proponents, as well as the institutional standing of the actors attempting to enforce the constraints. But where the conditions are right, legal intervention, though by no means all-powerful, may nonetheless exert real influence on the ultimate outcome of the crisis.

As Landau and Dixon are quick to observe, it hardly follows from these points that replacement-oriented constraints will always succeed, much less that they should in fact be used. (Among other things, one might worry that replacement-related constraints would too often function to frustrate beneficial forms of constitutional change, in which case the game might not be worth the candle.) But the authors do at least claim to have demonstrated, rightly in my view, that replacement-related constraints should not be dismissed as either “per se normatively unjustifiable” or as bound “inevitably [to] fail.” (P. 7.) And that observation in turn prompts the remainder of their analytical inquiry, in which Landau and Dixon sort through the various mechanisms by which courts and other constitutional actors might attempt to constrain replacement-oriented constitutional change.

One mere jot cannot do justice to the depth and sophistication of Landau and Dixon’s work on this score, so I’ll just note that the analysis here struck me as nuanced, insightful, and richly informed by real-world case studies. The breadth of their case studies is particularly impressive: the authors draw insights from constitutional transitions in Bolivia, Colombia, Hungary, South Africa, Venezuela, and Zimbabwe, among others. What emerges from their efforts is a rich and detailed analytical framework that invites and facilitates future scholarly investigations of constraints on constitutional change. In developing this framework, moreover, Landau and Dixon offer a number of interesting thoughts along both practical and theoretical dimensions, weighing the respective “pros” and “cons” of the individual techniques they identify and speculating as to the conditions under which each of these techniques is most likely to succeed.

To give a flavor of their analysis, Landau and Dixon at one point compare the possibility of policing replacement ex ante, via the enactment of “replacement clauses” that define and regulate the “constituent power,” to that of policing replacement ex post, via the development of a judge-made “unconstitutional constitutional replacements” doctrine. The former, they suggest, is preferable to the latter in terms of clarity and popular legitimacy, but the latter is preferable to the former in terms of its flexibility and adaptability to changed circumstances. Landau and Dixon also imagine ways of distinguishing between valid and invalid attempts at constitutional replacement. This inquiry, they suggest, would benefit from increased “engagement with transnational norms,” whose independent status might help to “bolster[] the effectiveness of either textual or judge-made” constraints (P. 21.), and whose limited scope might help to limit the “overuse” of those constraints in particular cases. (P. 14.)

Their arguments on these and other points111 do not purport to be definitive. But they offer a fresh set of insights on the problem, while teeing up a variety of important questions for future investigation. The discussion thus hits the sweet-spot between being interesting and valuable in its own right and opening up useful new avenues for subsequent work.

Perhaps the most important takeaway of their project is this: any serious attempt to confront the dangers posed by abusive constitutionalism must attend to both amendment- and replacement-related processes, recognizing that the relationship between the two is anything but static. A system designed exclusively to withstand the threat of abusive constitutional amendments might not so much thwart anti-democratic constitutional efforts as it will simply channel those efforts in a replacement-focused direction. As Landau and Dixon put the point, “restrictions on amendment might . . . increase the incentives for political actors to rely on processes of replacement, where such processes are not similarly constrained.” (P. 2.) If that is true, then it further raises the stakes of the inquiry. The greater the prevalence of amendment-related constraints, the greater the likelihood of abusive constitutional replacements. This renders all the more pressing the questions that Landau and Dixon have raised.

Cite as: Michael B. Coenen, Can Abusive Constitutionalism Be Checked?, JOTWELL (October 26, 2015) (reviewing David Landau & Rosalind Dixon, Constraining Constitutional Change, 51 Wake Forest L. Rev. (forthcoming, 2015), available at SSRN),

Someone Who’ll Watch Over Me

Gillian E. Metzger, The Constitutional Duty to Supervise, 124 Yale L. J. 1836 (2015).

Gillian Metzger is convinced of “[t]he central importance of supervision.” “Supervision and other systemic features of governmental administration with which it overlaps … are fundamental in shaping how an agency operates and its success in meeting its … responsibilities.” (P. 1840.) Nonetheless “constitutional law stands largely aloft from the reality of administrative governance, with the Supreme Court refusing to subject systemic features of government operations to constitutional scrutiny.” (P. 1841.) This dissonance preoccupies Metzger’s article.

Available lines of thought, we know, lie right at hand. The Article II Take Care Clause jumps out as one beginning. Anti-delegation worries, originating in structural preoccupations, suggest another accessible constitutional skein. Metzger’s observations drawing out these threads make for easy reading. (Pp. 1874-1904.) The problem, she thinks, lies largely with courts and their adjudicative inhibitions. In both administrative and constitutional law, ideas of review, “cases” and “controversies,” parties to disputes, resolution and finality, and so on—all work against thinking through matters of system, supervision, “rightful hierarchy,” and so on. Judges are inclined to start with—are prone to hesitating absent—investigations of individual instances. Although she maps possible occasions for taking up questions of supervision directly, Professor Metzger acknowledges that there’s not much chance of provoking large-scale change in judicial orientations (and maybe shouldn’t be). Her several discussions, here too, are searching and extensive, thoughtful and clear. (P. 1859-70, 1904-09, 1914-18.)

The article is nonetheless not a ninety-page shrug. Law works itself out, of course, in processes other than adjudication. Metzger identifies good reasons for executive officials and legislators to take firmer hold of the duty to supervise. (P. 1927-32.) But it may also be enough constitutionally, her readers are led to understand, if judges working within administrative and constitutional law put to use the idea of the duty to supervise as something like an “aside” (not Metzger’s own word; see the new compilation edited by Jason Potts and Daniel Stout, Theory Aside). Professor Metzger writes with quiet, dry wit:

Administrative law … offers an important means by which courts could require agencies to pay greater attention to their supervisory obligations without assuming responsibility for enforcing those obligations in the first instance. The vehicle would be the standard APA challenge to agency action as arbitrary and capricious…. (P. 1919.)

Appearance and action, she thinks, do not always (and seemingly need not) proceed in parallel in administrative law:

…[A]n administrative law approach to the duty to supervise would require changes in current administrative law doctrines…. Notably, however, courts often appear to respond to presidential involvement in their application of administrative law scrutiny without being open about doing so or offering a justification for their approach. As a result, although acknowledging the duty to supervise might entail changes in stated doctrine with respect to presidential administration, it may not require much change in current administrative-law practice. (P. 1926.)

Even given all this indirection, even if little would change in administrative law in practice, Metzger stresses that “acknowledging” the duty to supervise would be a marked change. “[I]ncorporating a duty to supervise into administrative law could produce a fundamental reorientation of judicial review of agency action. … Rather than targeting specific decisions or actions, judicial review would scrutinize programmatic structures and broader aspects of agency policy and functioning.” (P. 1920.) But this change would be notable mostly from the constitutional perspective.

Failure to articulate administrative law’s constitutional underpinnings leads to a false perception of constitutional law as separate and distinct from other forms of law and of agencies having little role as independent constitutional enforcers. Failure to acknowledge the complicated interplay among courts and agencies with respect to constitutional enforcement also makes it difficult to develop an account of the proper bounds of this relationship. (1912)

It is not just that making explicit the constitutional law duty to supervise would alter the face of administrative law. Our sense of what constitutional law “is” reshapes itself too.

Constitutional law in the modern administrative state does not have hard edges allowing for a clear demarcation between that which is constitutional and that which is not. Rather, constitutional law today is a porous entity. Constitutional requirements mingle with numerous forms of subconstitutional law, often functioning more as background norms than as direct commands. This means that constitutional implementation will centrally involve other government institutions. It also means that courts will inevitably engage in law creation as they seek to enforce constitutional concerns indirectly. (P. 1933.)

Water music! What wonderfully baroque minimalism! But there is also substantial practical fall-out, Professor Metzger suggests, providing a notable headline example:

Precluding prospective and categorical articulation of immigration enforcement policy and priorities is tantamount to insisting that nonenforcement decisions be made by lower-level officials…. Acknowledging a constitutional duty to supervise thus indicates that presidential efforts to direct nonenforcement on a categorical, prospective, and transparent basis can have strong constitutional roots. …[E]xecutive-branch implementation of the duty to supervise seems likely to result in greater and more overt instances of presidential direction. (P. 1929.)

The President as “Great Helmsman” a la Mao? Bolingbroke’s “Patriot King”? Not quite, of course: “Given that a core part of the duty to supervise is insuring legal accountability, such presidential policies must accord with governing statutory requirements or have a basis in the President’s constitutional authority.” (P. 1929.) We glimpse here especially clearly the deep complexity resonating throughout Metzger’s discussion. There is not just administrative law and constitutional law; not just administrative legal form and practice; not just direct and indirect constitutional law; but also an always present duality within constitutional law in substance—the duty to supervise always coexists with, is always in interplay with, other constitutional texts and concerns.

“The Constitutional Duty to Supervise” is—notwithstanding its length and intricacy—a proof of concept exercise. There is much therefore that is left out. For example, administrative law figures only very generally: there is no close look at its own jurisprudential controversies, no sense of its reformations and counter-reformations, no attention to long-running doctrinal perplexities like Chevron. There is not much attention to how, within constitutional law itself, the Fourteenth Amendment—its “due process of law” and “equal protection of the law” formulas—might interact with the duty to supervise in state and local law settings (for example, not much attention to DeShaney or Castle Rock); not much sense of supervision as a key problem with respect to police, prisons, etc.; no sense of how deep history—race, gender, and other profound “asides”—might press hard on ideas of what “right supervision” should be. With respect to the federal scene, moreover, there is not much attention to competing models: OMB insistence on cost-benefit analysis as an ever-present rationality maybe reducing the need for presidential supervision as such (surprisingly little discussion also of Cass Sunstein’s remarkably ambitious, inter-related works and pomps); statutory administrative pluralism as introducing a medium for judicial review grounded in versions of subject-matter jurisdiction, pretty much independent of administrative law per se, permitting apt matching of problems and agencies, again inter alia.

Not criticism—not really. In the end, rather, this: Gillian Metzger has attempted and landed a long jump.

Cite as: Pat Gudridge, Someone Who’ll Watch Over Me, JOTWELL (September 23, 2015) (reviewing Gillian E. Metzger, The Constitutional Duty to Supervise, 124 Yale L. J. 1836 (2015)),

Spillover Federalism

Gerken and Holtzblatt, The Political Safeguards of Horizontal Federalism, 113 Mich. L. Rev. 57 (2014).

An essay by Heather Gerken and James Dawson entitled Living Under Someone Else’s Law, 36 Democracy Journal 42 (2015) caught my attention several months ago. The topic was horizontal federalism, and the context was “spillovers,” extraterritorial effects that regulations of one state have on other states. Spillovers do not intentionally discriminate against a state’s neighbors or their citizens, do not favor insiders (citizens or businesses), and do not erect protectionist barriers at state lines. But spillovers have consequences, sometimes annoying, sometimes costly, for neighboring states.

Spillover examples include California emissions controls, Colorado marijuana legalization, and red state permissive gun-control regulations. Tighter emissions controls by California raised car prices to buyers in all states as national companies produced cars to comply with California rules. This adversely affected auto buyers elsewhere as surely as industrial pollution affected states downwind of the pollution. Likewise, recreational marijuana legalization increased drug trafficking across state lines, upsetting Colorado’s neighbors. Permissive gun sale laws in red states permit citizens in blue states to cross state lines, buy guns, and tote them home. Same-sex marriage bans in red states led, before the Supreme Court’s Obergefell decision, to concern in blue states: would their same-sex marriages be recognized (given ‘full faith and credit’) in neighboring states? The authors cleverly call this situation a “spillunder,” where under-recognition of one state’s law poses potential problems for its citizens when they are in other states.

In a longer article, The Political Safeguards of Horizontal Federalism, Gerken and co-author Ari Holtzblatt examine the underdeveloped legal literature and doctrinal signposts concerning spillovers and compare this virtual vacuum with the extensive literature concerning vertical federalism. They then suggest an approach to horizontal federalism premised on insights from vertical federalism scholarship.

As the authors put it, “lawyers hate spillovers.” When a state’s regulations affect its neighbors, the lawyerly instinct is to file suit, demand judicial intervention to halt the intrusion, citing the economic and political friction caused by the state whose legal regime affects its neighbors. Resisting this knee-jerk reaction, Gerken and Holtzblatt trumpet spillover benefits: they force productive conversations among political actors who otherwise would only listen to one side of arguments in accord with local constituency wishes. If the “Big Sort” isolates conservatives into red states and liberals into blue states, spillovers of red policies into blue states and the converse force politicians and their constituents to deal with a broader and less homogeneous regional and national political reality. There are benefits in harnessing this friction: efforts to formulate broader workable policies and greater democratic inclusion.

Perhaps, the authors say, political processes rather than lawyers and courts should sort out spillovers, just as politics generally resolves vertical federalism issues. There are also legal limits to federal power to override state law, but they are minor in the broad scheme of American governance. First, the Commerce Clause can’t be used to regulate “noneconomic” matters (Lopez, Morrison and NFIB). But it still affords broad regulatory powers to Congress, especially when coupled with the Necessary and Proper clause. (Wickard, Heart of Atlanta, and Raich). Second, Congress can’t “commandeer” state legislatures or other officials (New York and Printz), but it has plenty of other tools, such as conditional spending, to push states to comply with its policy preferences (Dole) up to the point of coercion (NFIB). Third, suits by private attorneys general have hit some sovereign immunity shoals (Seminole Tribe, Alden, and FMC). But a determined Congress can generally use broad governmental enforcement tools to bend the state to its will. And where federal legislation is valid, it preempts conflicting state regulation, thanks to the Supremacy Clause (Geier and Garamendi).

Contrast horizontal federalism. Does Congress step in whenever one state affects its neighbors? Generally no. If a state discriminates to favor (or disfavor) its own citizens and businesses, the judiciary might step in to manage horizontal conflict using the “dormant commerce clause” doctrine. Explanations range from theoretical (Congress is too busy, states could block remediation in Congress) to practical (enforceable legal rules generally deter most self-serving by states). But dormant commerce doctrine is much less robust for dealing with spillovers: one state’s regulations may impose externalities on neighbors so long as local benefits exceed those costs (Pike) and rarely does the Court’s calculus find a “burden” excessive.

Likewise, there is a bit of due process doctrine regulating spillovers. Where local juries go “whole hog” in imposing punitive damages on companies for conduct outside the state, the Court has found that would prevent other states from deciding “what conduct is permitted or prescribed” in the second state (BMW v. Gore and State Farm v. Campbell).

The problem Gerken and Holtzblatt systematically confront, to my knowledge for the first time, is whether political or legal models will best handle spillovers not systematically governed by federal law. They take on the problem first by showing that almost any state regulation will cause some level of spillovers onto neighbors. These spillovers are all over the board in how much costs they impose—from the trivial to highly significant. Then they argue that spillovers have beneficial effects politically; for example, state pushback operates as a check on the federal government. Likewise, state spillovers force neighboring states to confront each other concerning matters on which their preferred policies are antagonistic. This provides room for dissension and democratic discussion that might not occur if citizens with polarized policy preferences sorted perfectly into red states and blue states. There are some costs from the friction of spillovers, but no such issues today are even remotely close to splitting the country, as slavery did in the 19th century. Rather, they argue, “when citizens of one state must accommodate the preferences of another’s, they are enlisted in the practice of pluralism … A vibrant democracy depends not just on choice but on accommodation, compromise, and engagement … Spillovers force engagement and thereby spur the processes on which our democracy depends.” (Pp. 88-89.) Spillovers help break up enclaves and overcome political inertia. They sometimes lead to a national policy; other times they lead to pluralism and tolerance.

Gerken and Holtzblatt consider arguments opponents might have to their view that spillovers, despite costs, are often best left to political processes. First, they consider sovereignty arguments—that no state should be able to regulate in ways that spill outside its borders. But “silos” of sovereignty bear little relationship to how states interact in the real world. Second, can the courts even deal with spillovers? Courts can end disputes and declare winners, but rarely does victory foster compromise and democratic engagement. Further, Gerken and Holtzblatt argue that both horizontal and vertical conflict push the nation toward compromise: it hoists the “most honorable and least fun [aspect]” of democracy upon the elected, not the appointed.

Finally, the authors look at the institutional methods for safeguarding horizontal federalism. First, Congress can “referee interstate relations” if it will—and it should be encouraged to do so. Second, NGOs, interest groups, and institutions like the ALI have roles to play in mediating such conflict. Third, courts should play a “limited role” in horizontal federalism disputes “when the political process is unlikely to generate a solution.” They suggest that the courts look to Full Faith and Credit doctrine, which requires submission to “hostile policies” of other states “because the practical operation of the federal system … demand[s] it.” (P. 118.)

Democracy, the authors concede, is about self-rule. Yet, as they (rightly) point out, democracy also requires “interaction, accommodation, and compromise” – the salutary values a functioning account of horizontal federalism requires. To properly balance the countervailing principles of self-rule and compromise, the author’s finally ask states to “work it out.”

What I find appealing about this article is that it takes a concept—spillovers—and it work[s] out potential legal and nonlegal approaches to dealing with the concept. It cites the fragmentary scholarship touching on the topic and integrates it into a broader pattern. Then, sensibly, while working through a number of core issues connecting the bits of scholarship, it forges a framework even while calling for more specific scholarly attention to its component parts. As they note: “We are plainly at the beginning of the conversation … [but surely it’s a conversation] worth having.” (P. 120.) Indeed.

Cite as: Charles Shanor, Spillover Federalism, JOTWELL (August 7, 2015) (reviewing Gerken and Holtzblatt, The Political Safeguards of Horizontal Federalism, 113 Mich. L. Rev. 57 (2014)),

The Power of Promises

Richard M. Re, Promising the Constitution, 110 Nw. U. L. Rev. (forthcoming, 2016), available at SSRN.

Many questions about the meaning of the Constitution are disputed. But however we answer those questions, at some point most of us come to a different question: so what? Why do those words on a page have any moral grip on the three-dimensional world of human beings? In one of my favorite new articles of the summer, Promising the Constitution, Professor Richard Re takes on this question and its implications. The answer, he says, is the constitutional oath, which simultaneously commands much less and much more than many have assumed. (Full disclosure: Re is a friend and former classmate.)

Re’s article makes three major contributions. The first is to argue that the oath is what gives the Constitution normative force in our world. We should see the oath not as an empty political ritual, but as a solemn assertion of a promise, with all the moral force that a promise carries. Of course, many philosophers are skeptical about the moral force of promises; but Re surmounts their objections by turning to the democratic context of the oath. While immoral promises and coerced promises might lack moral weight, the constitutional oath today should be seen as neither.

Second, Re argues that the oath’s content has been misunderstood and overextended. Champions of interpretive pluralism sometimes argue that the oath empowers each branch, each officer, or each state to interpret the Constitution for themselves. Champions of judicial supremacy argue instead that the oath binds each office-holder to the Supreme Court’s interpretations. Re argues that the oath simply does not resolve such questions of separation of powers or federalism.

Third, Re argues that the oath binds each office-holder to the public understanding of “this Constitution” at the time of the oath. That formulation, in turn, has important implications. It means that the moral content of the constitutional promise is a positive question. To figure out what officers are obligated to do tomorrow, we must look to how our Constitution is understood today.

That formulation also tells us how officeholders should react to different kinds of constitutional change. The oath to the current Constitution obviously means that one takes for granted any changes that have happened before the taking of the oath. The current Constitution includes various amendments. Oath-takers today necessarily accept those amendments—even if they were once controversial.

But if the duty is focused on the time of the oath, what about subsequent changes? Re argues that the oath to the current Constitution includes the currently lawful rules of constitutional change, such as Article V. (Law professors debate whether there are others.) So a new amendment, or a new Supreme Court judgment, is generally part of the old oath. But there’s a catch: if a change is legally revolutionary, then it’s not part of one’s previous oath. The oath’s relationship to revolution may provide the hidden logic of Reconstruction jurists who narrowly read the Fourteenth Amendment, and of modern Justices who perpetually dissent from certain decisions that were issued over their initial outcry.

This is a lot of important ground to cover. But my enthusiasm for the piece is heightened because of the interpretive question it doesn’t cover: what is the current public understanding of “this Constitution?” Re observes a few elements of consensus, but is largely agnostic on this question. It’s a question that I have attempted to answer elsewhere, albeit briefly, in this essay on the “positive turn,” and more extensively in a forthcoming essay, Is Originalism Our Law? I argue that as a positive matter, our constitutional law today is an inclusive form of originalism. (Steve Sachs makes related arguments, to which I am also indebted, here and here.)

Re’s article demonstrates the stakes of that positive inquiry. If he is right that the oath commits officeholders to today’s Constitution, then we must discern whether today’s Constitution is one that continues to have its original meaning. And if, as I believe, a form of originalism is indeed our law today, then Re shows how originalism can continue to have normative force: not because of the deeds that were done by the dead, but because of the promises that are made by the living.

Cite as: William Baude, The Power of Promises, JOTWELL (July 10, 2015) (reviewing Richard M. Re, Promising the Constitution, 110 Nw. U. L. Rev. (forthcoming, 2016), available at SSRN),

A Revival of Lochner?

Thomas Colby and Peter J. Smith, The Return of Lochner, 100 Cornell L. Rev. 527 (2015).

Lochner v. New York (1905) has long been one of the most widely reviled decisions in Supreme Court history. The Court’s 1905 ruling striking down a New York maximum hours law for bakers under the Due Process Clause of the Fourteenth Amendment has been routinely denounced as callous, unjust, and based on blatantly fallacious legal reasoning. It is one of the leading members of the “anti-canon” of important Supreme Court decisions that almost all right-thinking people believe to be wrong. Thomas Colby and Peter Smith’s important new article argues that the longstanding dominance of this view of Lochner has begun to erode, at least among conservatives.

Colby and Smith provide an excellent account of why this trend began, and how it compares with previous developments in conservative and liberal legal thought. As they emphasize, even when the anti-Lochner consensus was at its height, liberals and conservatives opposed the decision for different reasons. For liberals, it became the leading symbol of an era in which the Supreme Court improperly intervened to shield “laissez-faire” economic policy against government interventions intended to protect workers and the poor. Especially after the New Deal revolution in constitutional law, they drew the lesson that Lochner was wrong because courts should generally stay out of “economic” issues, especially in cases where judicial intervention is sought for the benefit of the wealthy and business interests.

By contrast, most conservatives never objected to judicial protection of economic rights, as such, and many had always thought that labor legislation like that struck down in Lochner does more harm than good. For them, the error of Lochner lay in the fact that it protected an unenumerated right. Worse, it was a “substantive due process” right, which conservatives considered oxymoronic. They also associated substantive due process with the hated socially liberal decisions of the Warren and Burger courts, especially Roe v. Wade. Finally—and, to Colby and Smith, most important—conservative constitutional theorists believed that Lochner was wrong because it could not be squared with originalism, the dominant approach to constitutional interpretation on the right over the last several decades.

Over the last two decades, Colby and Smith explain, several factors have moved right of center constitutional thought away from the anti-Lochner consensus. One, of course, is that conservative and libertarian free market advocates generally disapprove of labor regulations like the ones upheld in Lochner. Free market economists and legal scholars have long argued that maximum hours laws actually harm workers by reducing their income and, in some cases, increasing unemployment. The law at issue in Lochner itself may well have been enacted at the behest of large bakeries and powerful labor unions dominated by native-born workers, for the purpose of stifling competition by smaller bakeries that employed mostly recent immigrants.

But this cannot, by itself, account for the evolution in conservative attitudes towards Lochner. After all, as the authors note, conservatives held similar views on labor regulation thirty years ago, when very few questioned the orthodox view of Lochner.

Colby and Smith instead emphasize changes in originalist constitutional thought over the last two decades. One is the shift from “original intent” originalism to “original meaning.” The former emphasizes the specific intentions of the framers of constitutional provisions, while the latter focuses on the public understanding of the provision in question at the time of enactment—either that of the general public, that of legal experts, or of hypothetical “reasonable” readers. From the standpoint of original meaning more so than original intent, there is extensive evidence that the Fourteenth Amendment was understood at the time as protecting a variety of property rights and economic liberties. Legal historians such as Ryan Williams and David Bernstein have shown that “substantive due process” protections for economic rights were not invented by the Lochner Court, but rather had a long history in American legal thought, including in the period around the time of the enactment of the Fourteenth Amendment. Whether or not “substantive due process” is a sound doctrine, it is not an ahistorical oxymoron, as previous generations of conservative originalists believed.

A second development stressed by Colby and Smith is the renewed interest in the Privileges or Immunities Clause of the Fourteenth Amendment among originalist legal scholars of a variety of ideological persuasions. There is a great deal of historical evidence indicating that the Clause was intended, at least in part, to protect economic liberties and property rights, and that its near-evisceration in the 1873 Slaughterhouse Cases was a serious mistake.

The notion that this Clause protects economic freedoms was not invented by modern conservatives and libertarians. It was forcefully defended in Justice Stephen Field’s famous dissent in Slaughterhouse, which attracted four votes, including that of Chief Justice Salmon P. Chase, one of the architects of the Republican Party “free labor” school of legal thought that heavily influenced the Fourteenth Amendment. But only in recent decades have modern constitutional law scholars begun to focus on this aspect of the Amendment. For conservative originalists who continue to oppose “substantive due process,” the Privileges or Immunities Clause offers a pathway for strengthening protection for economic liberties without relying on the Due Process Clause, and indeed without reconsidering Lochner directly.

Many left of center scholars also hope for a revival of the Privileges or Immunities Clause, though most of them do not want that revival to include substantial protection for economic liberties. The fact that there is such widespread criticism of the Slaughterhouse Cases strengthens the potential attractiveness of the Privileges or Immunities Clause as a vehicle for reviving judicial protection for economic liberties. While left of center jurists might oppose using the Clause for that purpose, on a variety of grounds, they cannot easily dismiss it out of hand, as would likely be the case with attempts at a direct revival of Lochner.

As Colby and Smith recognize, conservatives who wish to restore constitutional protection for economic liberties may well be influenced by their political and ideological support for this cause. In that respect, they are similar to liberals and others for whom ideological and legal commitments are not completely separate. But the authors also emphasize that they do not wish to “denigrate conservatives as unprincipled opportunists who consciously seek to subjugate the law to their political whims. To the contrary, we give credit to conservatives for abstaining from action in the absence of a strong theoretical foundation. . . . When conservative legal theory did not support their politically favored outcomes, conservatives laudably chose mostly to respect their jurisprudential commitments, at least in the case of unenumerated economic rights.” They interestingly contrast this tendency in conservative legal thought with the development of liberal constitutional thought from the 1930s to the 1960s, when liberal judges began to use judicial review to aggressively enforce a variety of “noneconomic” rights, before liberal constitutional theorists had articulated a strong and coherent rationale for breaking with early twentieth-century Progressives’ emphasis on across-the-board judicial deference.

Overall, Colby and Smith’s article is the most complete, thorough, and fair-minded analysis of the recent revival of support for judicial protection of economic liberties. Their careful, balanced approach is particularly commendable in light of he fact that they are not themselves advocates of either originalism or political conservatism.

I do, however, have a few reservations about their analysis. In some places, they posit too great a break between today’s conservative originalism and that of thirty to forty years ago. Colby and Smith suggest that earlier conservative judges and legal theorists were “concerned primarily with limiting judicial power,” while those of today have to a large extent broken with that commitment.

It is unquestionably true that, in the 1980s, conservatives such as Robert Bork, Antonin Scalia, and Attorney General Edwin Meese emphasized the need for “judicial restraint” and deference to the democratic process. But they also simultaneously advocated strong judicial enforcement of the original meaning of the Constitution, including in many cases where doing so required increased judicial intervention, rather than less. As far back as the 1970s, conservative Supreme Court Justice William Rehnquist wrote a series of opinions advocating stronger judicial enforcement of property rights and federalism-based limits on congressional power. Indeed, conservative Supreme Court justices’ partial revival of judicial enforcement of the Takings Clause of the Fifth Amendment since the 1980s in many ways prefigures more recent arguments for a reconsideration of economic liberties.

During the 1970s and 1980s, conservative originalists did not focus much on the tension between their advocacy of judicial deference to the democratic process and their advocacy of enforcement of the original meaning. More recently, originalists have had to confront that potential contradiction. While a few have chosen to subordinate originalism to judicial deference or to argue (increasingly implausibly) that there is no tension between the two, more have chosen originalism over deference when the two seem to conflict.

Another relative omission in Colby and Smith’s account is their downplaying of the fact that many of the leading originalist thinkers of the last twenty years, most notably Georgetown law professor Randy Barnett, have been libertarians rather than conservatives. Many younger right-of-center lawyers and legal scholars have also been influenced by the Institute for Justice’s effective advocacy of judicial protection for economic liberties and property rights. The libertarian public interest firm has litigated many high-profile test cases on these issues, many of them pitting poor and politically weak clients against powerful interest groups, thereby undercutting the traditional perception of judicial review of economic liberties as merely a tool for the rich. These developments have coincided with a general libertarian trend in right of center American thought over the last decade or so.

Relative to most conservatives, libertarians are less wary of the use of judicial review to constrain the legislative and executive branches, including for purposes of protecting a wide range of non-economic freedoms, some of which are anathema to social conservatives. Libertarians are also less likely than conservatives to be haunted by the specter of Roe v. Wade. While many libertarian legal scholars disagree with that decision, few see it as an evil of the same magnitude as it is in the minds of many conservatives. Many libertarians are pro-choice in their political views, and even most of those who are pro-life tend not to assign as much weight to the abortion issues as conservatives often do.

As Colby and Smith recognize, we are still far away from a broad consensus in favor of more than the most minimal judicial protection for economic liberties under the Fourteenth Amendment, even on the political right. When and if such a consensus does emerge among libertarians and conservatives, that may still not be sufficient to ensure robust protection for the rights in question.. History suggests that strong judicial protection for constitutional rights can only be firmly established if it achieves a measure of support in both major parties and on both sides of the political spectrum.

Thus, we are still a long way away from a true Lochner revival. Even if such a revival does happen, it would be far from the end of extensive government regulation of economic transactions. As Colby and Smith note, the Lochner-era Supreme Court upheld far more economic regulations than it struck down, usually upholding laws where the government presented substantial evidence that it was combating a genuine threat to public health and safety.

Colby and Smith’s article is not intended to address the normative debate over judicial protection for economic freedoms. Both sides in that debate have a variety of strong arguments, and we are unlikely to get a definitive resolution anytime soon. But they do provide a valuable account of why a serious debate over this issue has reemerged in the first place.

Cite as: Ilya Somin, A Revival of Lochner?, JOTWELL (June 15, 2015) (reviewing Thomas Colby and Peter J. Smith, The Return of Lochner, 100 Cornell L. Rev. 527 (2015)),

How Do We Know When Speech is of Low Value?

Genevieve Lakier, The Invention of Low-Value Speech, Harv. L. Rev. (forthcoming), available at SSRN.

Bedrock First Amendment law calls for the Supreme Court to apply strict scrutiny to the government’s content-based regulation of speech. Except when it doesn’t. Over time, the Court has identified several categories of expression as sufficiently “low value” to trigger a First Amendment analysis less suspicious than strict scrutiny, thus enabling greater government regulation of that speech. These categories have included commercial speech, true threats, incitement to imminent illegal action, “fighting words,” obscenity, defamation, fraud, child pornography, and speech that is integral to criminal conduct. This subject, and what we think we know about it, is the focus of Genevieve Lakier’s valuable new article, The Invention of Low-Value Speech. Especially useful and novel for its strong historical look at the long first era of First Amendment law prior to the twentieth century, it is also important as a refutation of the Court’s current approach that purports to rely entirely on historical analysis to identify categories of low-value speech.

Taking a categorical approach to First Amendment protection, of course, requires a methodology for determining which speech belongs in which categories. In its decision in United States v. Stevens, 559 U.S. 460 (2010), the Supreme Court surprised many observers with its insistence that historical tradition alone has driven its determination that a category of expression is of only low First Amendment value. The Stevens Court struck down a federal statute that prohibited the commercial creation, sale, or possession of depictions of animal cruelty. In so doing, the Court rejected as “startling and dangerous” what it characterized as the government’s proposed “free-floating test for First Amendment coverage . . . [based on] an ad hoc balancing of relative social costs and benefits.” To be sure, the Court started by acknowledging that, “[a]s the Government correctly notes, this Court has often described historically unprotected categories of speech as being ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’” The Court went on to assert, however:

But such descriptions are just that – descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor. When we have identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis. . . . [but we have instead] grounded [our] analysis in a previously recognized, long-established category of unprotected speech, and our subsequent decisions have shared this understanding.

Stevens thus made the descriptive clam that the Court has relied only on historical analysis to identify categories of low-value speech (i.e., that it has focused on whether courts have historically treated the contested expression as low-value), rather than on balancing analyses that identify contested expression as “low-value” when its threatened harms outweigh its capacity to further key free speech values.

The Court’s claim has attracted considerable criticism, and Professor Lakier’s is among the most powerful of these critiques. Lakier refutes the Court’s claim as a descriptive matter, engaging in extensive historical research to find that the list of “low-value” speech categories generated by the Court in the twentieth century has no basis in courts’ 18th and 19th-century understandings. She finds that for close to 150 years, courts did not divide speech into high- and low-value categories subject to differing levels of government regulation. Courts from the founding until the early 20th century instead consistently forbade prior restraints of all sorts of speech (including those today characterized by the Court as low-value), while remaining quite tolerant of government’s after-the-fact efforts to punish all sorts of speech—including those today considered by the Court to be of high value—to address the harms inflicted by such speech or to further the government’s asserted interests in morality and order. Lakier’s careful historical analysis by itself is an important contribution to the field, as it examines thoughtfully and in detail the largely unexplored terrain of courts’ actual approach to speech problems in the 18th and 19th centuries.

In addition to her descriptive claim that historical tradition does not actually explain the categories of speech currently identified by the Court as low-value, Lakier makes the normative claim that history should not drive that analysis. She argues that historical analysis not only would both under-protect and over-protect certain categories of speech, but that it also fails to deliver on its purported benefits. More specifically, she offers a thoughtful critique of historical analysis as a poor test of original meaning as well as a poor constraint on judicial discretion.

The Court’s splintered decision in United States v. Alvarez, 132 S. Ct. 2537 (2012), offers a recent example. There, the plurality and the dissent both purported to use historical analysis to reach very different conclusions about whether and when false statements of fact comprise a category of low-value speech. Each of the three opinions in Alvarez suggested that some category of lies is of sufficiently low value such that government should be permitted to prohibit it without satisfying the demands of strict scrutiny. Although both the plurality and dissent undertook to engage in historical inquiry in defining the contours of that category, each defined the relevant historical tradition quite differently. (Justice Breyer’s concurring opinion, in contrast, relied on purpose-based and pragmatic arguments rather than historical analysis to identify another category of regulable lies altogether.) Justice Kennedy’s plurality opinion concluded that only certain harm-causing lies have historically been treated as unprotected by the First Amendment, while Justice Alito’s dissent concluded much more broadly that lies have been historically unprotected apart from any harm they cause. In short, the historical approach to identifying categories of low-value speech is not without its own considerable subjectivity, and thus does not consistently deliver on its promise to limit judicial discretion.

Lakier’s nuanced prescriptions include a welcome refusal to pretend to make hard First Amendment questions easy. She recommends instead that courts more transparently engage in the challenging but important—and likely unavoidable—endeavor of examining whether and when contested speech furthers key First Amendment values in democratic self-governance, enlightenment, and autonomy.

As Lakier observes, “value-judgments in fact pervade First Amendment law. Attempting to hide these judgments under the cloak of history does not make them go away; it merely makes them harder to understand.” Lakier’s valuable work strips away this illusion and offers a much-needed return to reality.

Cite as: Helen Norton, How Do We Know When Speech is of Low Value?, JOTWELL (May 8, 2015) (reviewing Genevieve Lakier, The Invention of Low-Value Speech, Harv. L. Rev. (forthcoming), available at SSRN),

Secession, Then and Now

Alison L. LaCroix, Continuity in Secession: The Case of the Confederate Constitution (forthcoming), available at SSRN.

Secession has been back in the news of late. Hundreds of thousands of individuals across the country signed petitions seeking permission for their states to leave the United States after President Obama’s reelection; Governor Perry riffed on Texas’s departure from the Union “if Washington continues to thumb their nose at the American people”; and members of the Second Vermont Republic insist the Green Mountain State would be better off alone. Overseas, a bid for Scottish independence from the United Kingdom nearly prevailed last fall.

A curious feature of many contemporary secessionist movements is their claim to represent the real nation-state from which they seek to depart. The paradigmatic secession case involves a self-consciously distinct national group trying to throw off the yoke of the state encompassing it. But many of today’s movements instead embrace the nation-state they would leave behind, insisting they are truer to its founding principles than the current regime. Alison LaCroix’s provocative and illuminating essay, Continuity in Secession: The Case of the Confederate Constitution, not only sheds light on the most important secessionist movement in American history, but also offers new purchase on this feature of contemporary law and politics.

LaCroix’s account of Confederate constitutionalism is valuable in its own right. In a challenge to the prevailing understanding of the Confederacy as a bastion of states’ rights, she first builds on recent scholarship exploring the substantial similarity of the United States Constitution and the Confederate Constitution, including with respect to centralization. The Confederate Constitution envisioned a strong Confederate Congress empowered by a Commerce Clause, Necessary and Proper Clause, and Supremacy Clause. There were, to be sure, state-sovereignty-enhancing changes in the document, including the preamble’s nod to compact theory, limits on the central government’s taxing power, and a restriction on appropriations for internal improvements (perhaps a strange emphasis for twenty-first century readers, but one of the critical questions of nineteenth-century federalism). Overall, however, it is difficult to place the U.S. Constitution of 1861 alongside the Confederate Constitution of 1861 and not wonder, as David Currie once did, whether “Southern statesmen had no objection to a strong central government after all [but] only wanted to run it themselves.” Indeed, in making theirs an expressly pro-slavery constitution, Confederate drafters centralized authority over slavery to a much greater degree than the U.S. Constitution had.

Still more interesting than LaCroix’s discussion of the Confederate and U.S. Constitutions is her account of Confederate constitutional interpretation. Confederate leaders not only copied provisions from the founding document of the country they sought to leave, but also interpreted their Constitution as a seamless continuation of the U.S. Constitution. They understood themselves to have inherited modes of interpretation, and particular constitutional interpretations, from the United States and cast their project as constitutionally preservative and—insofar as it differed from the extant text—redemptive of the founders’ Constitution. “The Confederate mode of constitutionalism,” LaCroix writes, was “consciously intertemporal and inter-regime.”

An especially intriguing example of such inter-regime constitutionalism concerns the interpretation of the Confederacy’s Recess Appointments Clause. Did the “vacancies” it referred to have to come into existence during a recess (a question the Supreme Court answered in the negative just last Term with respect to the U.S. Constitution)? Reasoning that the text of the Clause, a near replica of the U.S. Constitution’s Recess Appointments Clause, was best read to apply only to those vacancies that occurred during a recess, Confederate Attorney General Watts nonetheless adopted the contrary interpretation because of U.S. government practice. The construction of the text by U.S. Attorneys General as extending to vacancies that arose before as well as during a recess had, Watts insisted, become “a part of our Constitution” as well.

LaCroix explores the Confederacy as a case study of constitutionalism in what she has called the “long founding moment.” Her essay also might help constitutional lawyers think more richly about the secession talk that surrounds us today and the ways in which federalism both elicits and tames secessionist impulses. Just as Southern leaders argued that the Confederacy represented the original U.S. Constitution and the true principles of the American Revolution, contemporary secession movements frequently frame their claims in terms of vindication: instead of emphasizing their inherent difference from the nation-state they seek to leave, they argue that they are truer to its foundational principles than the current regime. This, too, is a form of continuity in secession.

Cite as: Jessica Bulman-Pozen, Secession, Then and Now, JOTWELL (April 10, 2015) (reviewing Alison L. LaCroix, Continuity in Secession: The Case of the Confederate Constitution (forthcoming), available at SSRN),

Privacy and the New Press

In The First Amendment Bubble, Professor Amy Gajda comprehensively examines privacy threats posed by digital media and “quasi-journalists” and demonstrates how their intrusive practices threaten existing press freedoms. The law Gajda addresses is mainly tort law and First Amendment law. Through a wide-ranging survey of reported cases, she documents trial court judges’ growing reluctance to interpret First Amendment precedent to protect journalists who are sued for invasions of privacy, intentional infliction of emotional distress, or other torts. She attributes this judicial reluctance to perceived and real changes within the media itself, including the rise of “quasi-journalists” unmoored by journalistic ethics or a sense of social responsibility, the growing use of invasive newsgathering technology, a tell-all culture enabled by social media, and competitive pressures to both sensationalize the news and present it to the public without benefit of editorial judgment.

Gajda warns that journalists have “pushed the envelope” of First Amendment freedoms so far that the First Amendment bubble may be about to burst. She documents the judicial backlash against journalists’ broad claims of constitutional protection by presenting hundreds of examples gleaned (mostly) from trial courts around the country. She argues convincingly that a legal strategy of pushing every First Amendment argument to its outer limits may backfire on journalists and news organizations, since courts increasingly lump legacy media with internet scandal mongers such as, and become skeptical of media claims that they provide the public with newsworthy information.

What is especially valuable—and disturbing—about Gajda’s book is that she shows a widening gap between the First Amendment “law in books” and the “law in action.” Supreme Court precedent has tilted the balance between privacy and press freedom strongly in favor of the latter, but Gajda shows that lower courts are beginning to tilt the balance back toward privacy by distinguishing, and sometimes seemingly ignoring, precedent in the face of perceived press abuses. As she notes, “courts are signaling a new sensitivity to threats to privacy posed by evolving social and cultural conditions.” Meanwhile, her analysis of recent cases reveals an even more troubling trend. She closely examines judicial rhetoric describing the press. The picture judges paint of reckless and irresponsible journalists certainly is not a pretty one. This portrait explains why judges are no longer giving the media the benefit of the doubt in close cases, and sometimes not at all.

Gajda’s thesis resembles, in some respects, that of Jonathan Ladd in his 2012 book, Why Americans Hate the Media and How it Matters. Whereas Ladd’s book focuses on how the media have lost the public’s trust, Gajda focuses on how the media have lost judges’ trust, and what it means for the future of First Amendment law and for the future of journalism. Read together, the two books are a scathing indictment of the current state of the Fourth Estate and a call to reform.

Fortunately, Gajda provides guidance for those who wish to revive the Fourth Estate and preserve its legal and constitutional protections. Many of her calls for reform are aimed at journalistic practices. Professional journalists (and their lawyers) should distance themselves from quasi-journalists (such as Gawker), should define and adhere to ethical standards protecting privacy, and should be careful not to define newsworthiness to include any topic in which some member of the public might be interested. Ultimately, Gajda begs journalists to clean their own house before judges clean it for them.

She also argues, more concretely, that Section 230 of the Communications Decency Act (CDA) must be repealed. This statute grants immunity to online publishers when they “republish” content generated by others. The statute protects online publishers from libel and other torts arising from user-generated comments left on their websites. However, the CDA’s statutory immunity has inspired the development of sites hosting revenge porn and other privacy-invading, defamatory, and abusive forms of speech. The most egregiously abusive speech could be stopped, Gajda argues, simply by amending the CDA to provide for liability only after publishers receive notice but fails to take down privacy-invading or defamatory speech. Although this concrete recommendation about the CDA initially seems out of place, the recommendation actually fits with Gajda’s broader reform objectives. If the CDA is amended to curb the worst abuses of quasi-journalists, real journalists will benefit in the long run.

Ultimately, Gajda contends that the journalism profession should return to more active self-policing. Education, of course, is a central component, and her proposals for educating journalists about the link between ethics, self-interest, and society’s interests are sound. So, too, are her calls for judges to curb the anti-press rhetoric, distinguish between quasi-journalists and real journalists, and recall the function the latter play in democracy.

Although she never makes the point explicitly, Gajda’s book is fundamentally an exercise in legal realism. Even though the scope of constitutional rights is not supposed to vary with the winds of public opinion, The First Amendment Bubble documents that the scope of press rights has changed as judges have perceived changes in the press. As she amply and comprehensively demonstrates, trial court judges seem more hostile to the media and more favorable to privacy claimants than their appellate brethren. This hostility may reflect the fact that trial judges, especially state judges, are more likely to have been elected to their positions than their appellate brethren and are thus more likely to be alert to shifts in public opinion. Perhaps the starting point, then, for changing judicial opinions is changing public opinion. To do this, journalists must change their slipshod and sensationalist practices. Let’s hope they can.

Cite as: Lyrissa B. Lidsky, Privacy and the New Press, JOTWELL (March 16, 2015) (reviewing Amy Gajda, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press (2015)),

Getting Theoretical About Judge Posner’s Legal Pragmatism (Thanks to John Dewey) and the Implications for Constitutional Interpretation

Michael Sullivan & Daniel J. Solove, Radical Pragmatism, in The Cambridge Companion to Pragmatism 324 (Alan Malachowski ed., 2013), available at SSRN.

Constitutional interpretation debates generally do not focus on legal pragmatism. They often match originalism against living constitutionalism. Several U.S. Supreme Court justices, such as Justice Scalia and Justice Thomas, have openly embraced originalism. Others, such as Justice Sonia Sotomayor, see the Constitution as an evolving document, sharing views similar to former Justice William Brennan (and perhaps to Ronald Dworkin’s moralism). Alternatively, several scholars, such as Thayer and Vermeule, argue that only “clearly” unconstitutional laws should be invalidated. In addition, “popular constitutionalists” such as Larry Kramer urge the Supreme Court to be restrained and allow constitutional interpretation and change, if any, to arise from the grass roots. But pragmatism is another important method of constitutional interpretation. Justice Stephen Breyer is the Court’s most prominent pragmatist. Pragmatism, however, is often criticized as an empty anti-theory.

Yet, Professors Michael Sullivan and Daniel Solove have provided a great service by authoring an essay which shows that judicial pragmatism is not theoretically rudderless—it has normative components. Sullivan also authored a valuable book about legal pragmatism. Though their essay addresses questions of legal philosophy, it has enormous significance for constitutional law as will be shown. Indeed, pragmatism may better describe the reality of the U.S. Supreme Court’s constitutional interpretive approach than the sophisticated theories mentioned above, as the Court’s hardest cases are often decided by policy and practical considerations. These considerations trump because the tough cases usually involve an ambiguous text and history, as well as conflicting judicial precedents. Sullivan and Solove accomplish their task by relying on the philosophical pragmatism of John Dewey, and other arguments, to question various components of prominent Judge Richard Posner’s legal pragmatism. They critique Judge Posner’s supposed value neutral consequentialism, his view of the democratic process, his conception of philosophizing, and what they see as Posner’s status quo conservatism on many issues. Sullivan and Solove advocate a more critical approach towards the status quo’s views of constitutional principles such as equality, liberty, justice, and the democracy that results. In short, Sullivan and Solove embrace a thicker notion of the good and of democracy than Judge Posner.

Now Judge Posner and John Dewey both distrust the kinds of abstract theories emanating from academic philosophy departments. But, Sullivan and Solove argue that one characteristic of Posner’s pragmatism, among many, is a skepticism about legal precedent. Instead, Posner argues that judges should make the best possible decision, taking into account “the consequences of doing so for now and the future.” (P. 3, citing Richard A. Posner, Law, Pragmatism, and Democracy 6 (2003).)

Sullivan and Solove then write that:

Posner’s insistence that the past has no claim on us is especially problematic, especially in our constitutional democracy. It conjures up images of the judge arriving on a scene armed with a storehouse of “facts” from the past, and then rendering her choice in light of whatever ends she has in mind. The origins of these ends, apparently doesn’t need to be accounted for. (P. 3.)

Sullivan and Solove elaborate that:

Because it rejects any way to discuss the selection of ends, Posnerian pragmatism has little choice but to accept uncritically the dominant ends of society. This result is rather ironic considering Posner’s claim that pragmatism has no political valence. Since Posner’s pragmatism lacks the tools to engage in more radical social reform, it becomes a rather conservative philosophy in the Burkean sense. It ends up inhibiting the kind of philosophical inquiries necessary to question the status quo. Therefore the effects of Posnerian pragmatism are anything but neutral. (P. 7.)

By contrast, Sullivan and Solove argue that Dewey sees pragmatists as free to engage in philosophizing outside the academic realm, especially of a more experiential critique oriented type. Sullivan and Solove write that:

In contrast to Posner’s account, Deweyan pragmatism provides for a more fruitful inquiry into our selection of ends. Under this account of pragmatism, philosophy plays an essential role.Dewey sees philosophy as critical inquiry, which aims to unsettle status quo assumptions and thus provide guidance for projects of social reconstruction. (P. 7.)

Dewey says that this critical and experiential approach allows us to avoid acting merely out of habit or by default. Dewey also advocates a deliberative model of democracy in which dialogue is prevalent between citizens. It can also be present between institutions (such as the U.S. Supreme Court and the U.S. Congress—dialogical theories of constitutional interpretation have recently become popular). Dewey argues that pragmatism should lead us to question existing notions of justice, fairness, and freedom. Sullivan and Solove assert that these questions and responses form a community of “who we are as a People.” (P. 9.) By contrast, Judge Posner’s value neutrality insulates “dominant social structures from criticism.” (P. 10.) Moreover, Sullivan and Solove question whether Posner’s notion of politics (which doubts the presence or value of deliberation and sees dominance by elites) is actually pragmatic for a democracy.

The significance of these different views on pragmatism for constitutional law and politics is great. Though both Dewey and Posner disdain “politics informed by supernatural or transcendental ideals”, (P. 13), as previously suggested, “Posner’s pragmatism does have a particular political valence, one that favors the dominant ends of the status quo.” (P. 14.) To give one example with constitutional implications, Dewey sees political participation as “a highly valued end” itself (part of Dewey’s thicker notion of the good) whereas Posner only sees it as worthy if it has positive consequences. (P. 14.)

Here are some other examples of how these different views of pragmatism play out in constitutional interpretation. Judge Posner has authored several works suggesting that civil liberties will usually be restricted during wartime, and that this is not troublesome or surprising, even if torture sometimes occurs. See e.g., Richard A. Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency 81-84 (2006). This is just reality. Yet he would be wrong to not be troubled by recent revelations in the U.S. Senate Intelligence Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program (the “torture report”) during the “war on terror.” It’s hard to imagine Dewey would not be troubled by learning about dehumanizing acts of rectal rehydration or mock executions. Moreover, the report suggests the torture was not effective.

Judge Posner has also recently expressed skepticism about the value of privacy in our more technological society since privacy will inevitably be tough to protect, and because those who have nothing to hide should have little to fear from intrusions. Ronald K. Collins, On Privacy, Free Speech & Related Matters, Concurring Opinions (Dec. 15, 2014) (part of a series of interviews with Judge Posner and other references to Posner’s work). But this is the kind of faith in the status quo that Sullivan and Solove are concerned about, that Posner’s approach tolerates unlike Dewey’s.

My one major caveat is that Sullivan and Solove underestimate how Posner’s pragmatism might open him to change views over time as society changes and as he learns more about an issue. This is an admirable and rare quality among jurists and scholars. Judge Posner confided at the 2015 AALS Annual Meeting, in a debate with Professor Stanley Fish, that Posner had altered his views on certain issues. His reign as the king of law and economics is well known, but those are not the robes that he wears now. For example, he recently authored a powerful judicial opinion ruling that states cannot ban same sex marriage—a view he did not hold years ago. Jonathan Friedman, A Conservative Judge Did a Stunning About Face on Gay Marriage, Business Insider (Sep. 8, 2014).

Indeed, one could go further and assert that Judge Posner’s opinion in Baskin, et. al. v. Bogan, 766 F.3d 648 (7th Cir. 2014), resembles Sullivan and Solove’s critical pragmatism. Judge Posner dismantles Wisconsin’s argument in favor of maintaining the marriage status quo by citing Loving v. Virginia, 388 U.S. 1 (1967). Posner also notes that there are “good traditions” and “bad traditions pilloried in stories such as Franz Kafka’s ‘In the Penal Colony’ and Shirley Jackson’s ‘The Lottery.’” This part of his opinion attacks lazy status quo arguments.

Moreover, as the good pragmatist, he relies on the latest social science and scientific data related to the origins of being gay, the impact on children, and other relevant matters. Further, he undermines traditional equal protection doctrine in favor of a more pragmatic “cost/benefits” analysis. In addition, he rejects the state arguments by offering insightful counter analogies and by pointing out oversights (e.g., Indiana “ignored adoption” by gay people which it already permitted, while trying to argue that gay parents were harmful). Most interestingly, one could argue that Judge Posner’s reasoning has a moral component when he discusses the “pain” felt by gay parents who cannot marry, and the insecure situation in which that places their children. William James would agree that pragmatism is not amoral. Above all, Judge Posner’s opinion reveals the power of modern empirical and practical reasoning to critique feeble excuses for keeping same sex couples as second class citizens.

Now one can respond that Judge Posner is just mirroring the changing views of society on the same sex marriage issue and therefore reflecting the status quo. But Judge Posner’s critique seems stronger than that. Regardless, the Sullivan and Solove essay sheds light on the meaning of legal pragmatism in important ways for constitutional law.

Cite as: Mark Kende, Getting Theoretical About Judge Posner’s Legal Pragmatism (Thanks to John Dewey) and the Implications for Constitutional Interpretation, JOTWELL (February 24, 2015) (reviewing Michael Sullivan & Daniel J. Solove, Radical Pragmatism, in The Cambridge Companion to Pragmatism 324 (Alan Malachowski ed., 2013), available at SSRN),