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),

Future Present?

Mr. Young means to test empirically the existence of “constitutional moments,” changes occurring outside formal processes of amendment that Bruce Ackerman has posited are important elements in the American constitutional progress. To this end, Young focuses Measure on the so-called Reconstruction “moment,” from the period preceding the 1866 congressional elections through 1868, the time range within which Ackerman discerns a structured process of profound commitment to a new racially open political, legal, and institutional order. (See Bruce Ackerman, We The People: Transformations 99-252 (1998).) Measure studies the front pages of some 600 newspapers, viewing 2,000 articles published between June 1, 1866 and December 31, 1866; 2,612 articles published between June 1, 1868 and December 31, 1868; 5,000 newspaper pages on which the word “constitution” appeared between January 1, 1866 and December 31, 1868; and 15,322 newspaper front pages published between June 1 and December 31 in 1866, 1868, 1870, 1872, and 1884. All told, Young takes into account 32,544,870 words. (See Table I, P. 2021.)

In 1866 and 1868, “results indicate empirical support for the hypothesis that Americans were paying attention to constitutional-level issues during these periods.” The newspaper coverage surveyed between 1866 and 1872 and then 1884 shows “support for both the notion that constitutional issues were of high salience during this period and that sustained attention to those issues spiked during certain key moments in 1866 and 1868.” “[E]vidence of both constitutional discourse and a gradual decline in the prevalence of that discourse over time” is “consistent the with predictions of Ackerman’s theory that sustained popular attention to constitutional politics peaks during transformative constitutional moments and then declines as normal politics once again take center stage.” (P. 2053.) “Had my results indicated either no evidence of constitutional discourse, or a constant level of such discourse across time, it would have called into question the entire theoretical superstructure of Ackerman’s work.” (PP. 2053-54.)

“[F]or all the millions of words and thousands of newspaper articles this Note analyzes,” Mr. Young concedes, “this is a rather modest conclusion.” “[T]here is nothing surprising about the fact that the media was paying attention to the passage of major constitutional amendments in the aftermath of a devastating civil war.” (P. 2053.) It’s not Young’s bottom line, however, that marks his effort as important. “[M]illions of words and thousands of newspaper articles”—no law student reads this much! How did he do that?

“Algorithmic topic modeling,” his Note’s title tersely declares. Forty pages plus (out of 54 total) admirably explain what this involves. There is also an elegant technical appendix. Each newspaper front page from the period (all accessible on line) is treated as a separate document and run through optical character recognition software to identify words as words. The documents are computer-converted to brute lists stripped of all original interior organization, so-called common words deleted; the remaining identified words are counted in cases of repetition within each of the documents. The quantified word lists are statistically analyzed (more software) as word distributions, compared with each other, and the most common clusters of words across the full set of documents extracted. These clusters provide the ultimate working material for purposes of Young’s discussion. Texts become data.

Should we too want to do this work? At one point, Michael Taylor Young argues with provocative flair:

In the past, gaining a sense of the public zeitgeist around key political events required immersion in thousands of documents and was subject to the interpretive proclivities of whatever historian was up to the task. [Young footnotes: As a classic of the genre, see Bernard Bailyn, The Ideological Origins of the American Revolution (1967)….] While there is extraordinary value in this kind of synthesis, it also requires an extraordinary outlay of work and effort. … By contrast, algorithmic topic modeling allows us to glean some sense of public discourse in a much more rapid fashion. While we lose the texture of professional historical analysis, topic modeling can assist close readings of primary sources in an economical fashion. (PP. 2019-20 & n.119.)

Bernard Bailyn or MacBook Air? Welcome to the twenty-first century indeed!

Actually, it’s not clear I’ve picked the right computer. Mr. Young is reticent about the mechanics of his project—about what hardware and software he used, about how much space data storage took up, about how long the processes of calculation took, etc. Watson, maybe, or some unnamed beast of a machine?

Perhaps more to the point: This is the cluster (or topic) emerging from his 1866 runs that Young treats as most evocative—“states, government, union, constitution, congress, united, national, right, amendment, people, power, would, country, shall, rebellion.” (Table 2, P. 2025.) 8.37% of the “modeled text in the corpus” included this word list. The next most frequent is 8.25%: “nashville, street, tennessee, states, cotton, diseases, union, agent, united, college, court, stock, terms, company, commission.” (Table 2, cont’d, P. 2026.)

What do we learn when we look at these lists? Young is careful to frame his effort as a search for indicators of “the salience of constitutional issues” (P. 2023), and the first cluster does indeed suggest “some sense of public discourse.” We could probably figure out—if we did enough reading of the original newspaper pages—what the second cluster was showing as salient. Should it matter that it’s likely to be something very different than constitutional debate? Why should something—whatever was evidently going on in Nashville, Tennessee—preoccupy newspapers just about as much as the constitutional cluster? There is also, for example, this 1866 cluster, figuring in 4.03% (about half as many) of the word lists: “friends, great, church, before, himself, country, ladies, young, radical, present, though, mother, christian, story, nothing.” (Table 2, P. 2025.) What is this? The accumulated clusters certainly show that we are confronting the results of autonomous machine reading and not concerted human biasing. Are we supposed to draw any conclusions from the fact that the set of 20 topics Young’s computer identifies resembles something so much like Borges’s encyclopedia? (See “The Analytical Language of John Wilkins,” Other Inquisitions, 1937-1952, p. 103.)

Mr. Young repeatedly depicts his data as word clouds. (See PP. 2024, 2029, 2030, 2033, 2034, 2047, 2048.) This is apt: imagine textual space as like a large room, filled with people, all talking, repeated words sometimes seeming to gather and emerge as somehow interconnected above the clamor. But clouds, we know, are just dust and water molecules, however much they invite interpretation. Are Young’s lists similarly gossamer?

In footnotes, he provides us with glimpses of an intellectual history. The point of departure, it appears, is the 2003 article “Latent Dirichlet Allocation,” written by David Blei, Andrew Ng, and Michael Jordan, published in volume 3 of the Journal of Machine Learning Research (993-1022).

The basic idea is that documents are represented as random mixtures over latent topics, where each topic is characterized by a distribution over words. … The Dirichlet is a convenient distribution… — it is in the exponential family, has finite dimensional sufficient statistics, and is conjugate to the multinomial distribution. … [T]hese properties will facilitate the development of inference and parameter estimation algorithms. (996)

The elaborating apparatus grows dauntingly formidable fast. (See Wikipedia’s account (permanent link).)

Professor Blei—at Princeton and now Columbia—has become a leading figure in this sort of work. He summarizes its present state in an article he published earlier this year: “Build, Compute, Critique, Repeat: Data Analysis with Latent Variable Models.” From a distance anyway, the formalisms look to be—are presented as though they are— rather ad hoc. But in the second of two strikingly engrossing lectures delivered at Cambridge in September 2009, Blei stopped and turned to his students, asking “Why does this work? Really?” He alluded to a working assumption asserted by biophysicist William Bialek: “[E]fficient representation of predictive information … values all (predictive) bits equally … in some instances … filtering and in others … learning. … [W]hat determines whether we should filter or learn is … the structure of the data stream to which we have access.” (See Bialek et al., “Efficient representation as a design principle for neural coding and computation.”) Blei also tentatively suggested that “underneath” the key idea was “co-occurrence.” Topic models (if they worked) picked out and grouped words somehow associated substantively or structurally with notions too rich or elaborate or complex to be captured in language by individual terms.

* * * * *

What follows?

First, it should be clear that Mr. Young’s Note is an inviting portal opening into a world of endeavor right now revealing notable breadth, ambition, and innovation. To be sure, humanities computing has been taking up and taking apart texts for some time now. The startling experiments of Franco Moretti, however unique, are one example. Topic modeling presents itself as a generally available way of adjusting the idea of reading to encompass huge numbers of documents and new surfaces to be approached—reading differently, but reading nonetheless. American law is a plausible, important recruit to the project, given its own profusion of documents, its claims to political and cultural prominence, and our own recurring, manifest, and precarious attempts to discern “the structure of the data stream.”

There are also, it is easy to see, many points of entry. State constitutional law, for example, accumulates a sequence of constitutional documents, one replacing the other, each subject to multiple amendments, also addressed by numbers of proposed but not ratified amendments. What topics recur across the whole set? What differences in topics appear if we confine analysis to particular periods in time? In U.S. constitutional law, we have not only the collection of Supreme Court opinions, but also many other document series—U.S. Courts of Appeals and District Court opinions, Attorney General opinions, state analogs, huge ranges of commentary. What would we learn if we could consider this mass whole or in large chunks?

Second, if we were to undertake well-framed versions of these and other explorations, we likely would need to work intensely and equally with statisticians and perhaps computer engineers. David Blei makes the point emphatically (from the other side, as it were): “The future of data analysis lies in close collaborations between domain experts and modelers.” (Blei, 2014: 205.) Notably, Daniel Taylor Young teamed with Brandon Stewart, an already statistical-virtuoso Harvard Government Department Ph.D candidate. (See PP. 1993-94 & n.9; P. 2018 n.114.) Such joint effort likely won’t be one-shot. The statistician will not, most of the time I’d guess, simply do some set up work akin to tech support and then leave legal academics to make sense of the results. First runs might prompt critique, suggest revisions in models, additional runs, repeated iterations. (In this respect, we may think, the paradigm is corpus linguistics.) Notably, Blei’s 2014 review is importantly concerned with working out methods facilitating such reflexive engagement. (Blei, 2014: 223-28.) This sort of collaboration—perhaps especially if it encompasses not only scholarly exploration but teaching—might therefore prompt new attention to cross-university overlaps and the difficult negotiations of multidisciplinary work.

Third, pauses for interpretive efforts ought to be understood as integral. So too should subsequent revisions of statistical models, following attempts to test interpretive implications. Mr. Young and Mr. Stewart work hard near the end of the Note to discern hierarchies implicit in their collection of topic terms. (PP. 2039-44.) Interpretation, of course, may bring to bear what’s known outside the statistical exercise as well. The terms spinning to the top in the Note’s report do not seem to evoke much if any sense of the sequence of stages—a political and institutional ballet of considerable intricacy—that Bruce Ackerman describes as the gist of his idea of the “constitutional moment.” (E.g., Transformations 123-24.) Shouldn’t this matter? Maybe the topic model points us toward something like the collection of popularly-accessible moral exhortations that William Nelson concluded was the likely primary substance of much of the Fourteenth Amendment, a conclusion suggested in part by his own Bailynesque reading of great numbers of newspaper editorials written during the ratification period. (See William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 61-63 (1988).)

We might also wonder about competing constitutional moments. It ought to have been possible within the framework of the study to assess topic models revealed in Southern newspapers considered separately. Ackerman’s book briefly acknowledges the strategy of “masterly inactivity,” the preferred passive-aggressive approach of “moderate” Southern elites opposed to the proposed Fourteenth Amendment that Michael Perman studied at length forty years ago. (Reunion Without Compromise 229-65 (1973).) Did Southern newspaper front pages make use of constitutional terms markedly less often? Or collect different terms? Maybe more significantly, we might ask whether the Note’s modeling, if adjusted, could search out in both North and South topics evidencing the sorts of insurgent, horrific white violence against blacks and associated white popular support, ultimately serving successfully across decades as a terrorist undergirding and at times immediate enforcement of the counter-constitutional racial order largely displacing the Fourteenth Amendment. It is entirely possible, if appallingly ironic, that an infernal constitutional moment emerged with real help from the Fourteenth Amendment ratification politics—that the stalemated interplay of Southern moderates and their congressional counterparts that Perman depicts, set against the backdrop of only intermittently yielding white terrorist insurgency, contributed substantially to the shaping of popular and judicial acknowledgement of the “New South” regime. Bruce Ackerman writes at one point: “To put it mildly, it is easy to tell a story that ends unhappily for the Fourteenth Amendment.” (Transformations, p. 250.)

Fourth, if topic modeling should be of interest to us, it should be so because of its exploratory value. Straightforwardly fact-finding experiments like Young and Stewart’s may not—as theirs may not—show us especially much. Attempts to understand the expectations or presuppositions of the statistical frameworks, however—the implicit jurisprudence, as it were, of Dirichlet distributions and associated devices—may from time to time position us to notice otherwise obscure attributes of even familiar legal materials, and therefore maybe to change in interesting ways what we write and teach. It is this possibility that Daniel Taylor Young (and Brandon Stewart) have shown us. It is why we should appreciate very much what they have done.

Cite as: Pat Gudridge, Future Present?, JOTWELL (November 5, 2014) (reviewing Daniel Taylor Young, Note, How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling To Evaluate Bruce Ackerman’s Theory of Constitutional Change, 122 Yale L. J. 1990 (2013)),

Dispersing Judicial Power

Why does our republic accept judgments invalidating decisions of presidents, congresses, and federal agencies? Why do state authorities elected by local constituents accept decisional overrides by federal judges? These questions, often called “the counter-majoritarian difficulty,” have drawn the attention of scholars for decades.

Professor Ronald Krotoszynski’s “The Unitary Executive and the Plural Judiciary: On the Potential Virtues of Decentralized Judicial Power,” casts new light, albeit indirectly, on this paradox. Descriptively, the article usefully examines the design parameters (constitutional, statutory, and procedural) of the federal judicial power. Normatively, it suggests hidden strengths to these parameters, which improve the quality and acceptance of judicial decisions that are often overlooked by analysts and reformers.

The Constitution specifies the powers of Congress, from the famously flexible “regulate interstate commerce” to the “necessary and proper” implementation of these powers. It expansively vests all federal executive power in one person, the President, who is Commander-in-Chief, maker of treaties, and vetoer of legislation. Conversely, the Chief Justice is mentioned only once in the Constitution, to preside over presidential impeachment trials in the Senate.

The Constitution also says little about the judicial power wielded by “one Supreme Court” and such lower courts as Congress may ‘”from time to time ordain and establish.” Huge gaps in the document exist as to where lower courts should sit, how they should be structured, how many Justices there should be on the Supreme Court, and so on. The Chief Justice could have been accorded power to make such decisions, to assign cases, appoint law clerks, and so forth. Instead, the Chief has only one vote of nine in deciding cases, no power to organize the lower courts, and no discretion to discipline judges whose views differ from his.

A less sophisticated analyst than Krotoszynski might say the Chief is weak and the judicial power dispersed precisely because Congress desired to keep the judiciary weak. But if such was Congress’s intent, Congress fell woefully short of its goal. Ironically, a dispersed and decentralized (“plural”) judiciary has strengthened core federal judicial powers more than an efficient, centralized and unitary judicial design might have done.

Professor Krotoszynski richly elaborates how decentralizing the federal judiciary has enabled the growth and acceptance in America of judicial review. Judges with roots in local communities dispersed throughout the nation are more likely to have their decisions accepted than judges selected from a national pool and concentrated in the District of Columbia. Likewise, limiting the binding force of federal decisions to the deciding court or those immediately subordinate to it has allowed dialogue between different courts having varied perspectives. Decentralization has slowed the rush to judgment nationally on serious constitutional issues, allowing social consensus to develop and passions to cool before the Supreme Court makes a rule binding nationwide. Moreover, dissents and concurrences suggest decisional limits, and rule formulation ambiguities provide “wiggle room” for controversial rules to be expanded or trimmed over time.

In short, the President can decide and command. Congress can discuss, logroll, and vote, enacting laws containing compromise-based inconsistencies. The courts have only the ability to explain their decisions collectively. Do those decisions have any special characteristics to make them acceptable, even against the tide of public opinion and in the face of political forces? Judges, after all, command no police, no armies, and no popular mass movements.

Traditional proponents of “one true solution” to every legal question might find it odd to question judicial objectivity while realists might surmise that biases govern divergent judicial answers to a question. Krotoszynski has a more nuanced perspective than either camp. Using social science terms, he examines impediments to good decision-making processes carried out in collegial contexts. For example, “groupthink” is a malady that makes a group likely to “fail to obtain its collective objectives as a result of concurrence-seeking.” Krotoszynski points out social science research showing that independence (lifetime tenure with judges), dispersion (geographic with judges), and opportunities for reconsideration (lack of inter-circuit precedent) tend to reduce groupthink. He examines other social psychology pathologies of group decision making (choice-shifting pressures, group confirmation bias, social loafing, and herding), then examines how dispersion of judges, random assignment of judges to panels hearing cases, and diverse procedures for circulating and critiquing opinions, minimize these pathologies. As the author notes, “decentralized juridical bodies, working independently of each other, should in theory be better able to reason their way to sensible conclusions.”

The article provides a fertile set of ideas for those who seek to advance the rule of law and should counterbalance reformers who suggest centralization of judicial power such as advocates of a national court of appeals to harmonize circuit court decisions. As Krotoszynski elegantly argues, such reforms might undermine virtues of the present “inefficient” system. Likewise, the article counsels against procedures that short-circuit rational explanations for decisions or undermine random assignments of judges to panels so only judges with particular expertise hear cases in that field. Information, nuance, ramifications, and new perspectives: altogether a successful article by my reckoning.

Cite as: Charles Shanor, Dispersing Judicial Power, JOTWELL (September 26, 2014) (reviewing Ronald J. Krotoszynski, Jr., The Unitary Executive and the Plural Judiciary: On the Potential Virtues of Decentralized Judicial Power, 89 Notre Dame L. Rev. 1021 (2014)),

Originalism and Interracial Marriage

David R. Upham, Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause (2013), available at SSRN.

Legislation banning interracial marriage has long played an important role in debates over originalism and constitutional interpretation. When such laws came under legal attack in the 1950s and 1960s, their seeming compatibility with originalism was emphasized by conservatives and segregationists as a justification for courts to uphold them.Since the Supreme Court invalidated laws banning interracial marriage in Loving v. Virginia (1967), their apparent acceptability under the original meaning has been deployed by a very different set of commentators: opponents of originalism, most of them associated with the political left. For these critics, the compatibility of laws banning interracial marriage with originalism is not a reason to uphold them, but rather a reason to reject originalism itself. If originalist constitutional interpretation requires such an abhorrent result as upholding blatantly racist laws restricting marriage rights, then perhaps originalism itself is morally bankrupt.

Regardless of the purpose for which it is used, the originalist case for the constitutionality of laws banning interracial marriage seems initially strong. Public opposition to interracial marriage was widespread when the Fourteenth Amendment was ratified and for decades thereafter. Numerous states, northern and southern, banned interracial marriage at the time the amendment was adopted, and the Supreme Court unanimously endorsed the constitutionality of anti-miscegenation laws in Pace v. Alabama in 1883. As late as 1968, a year after Loving, a Gallup poll showed that only 20% of Americans approved of interracial marriage between blacks and whites. This and other similar evidence helps explain the longstanding conventional wisdom that the result in Loving cannot be justified on originalist grounds.

In his recent unpublished paper, “Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause,” Professor David Upham has produced the most far-reaching challenge to that conventional wisdom so far. The few previous originalist defenses of Loving, such as an important 2012 article by Steven Calabresi and Andrea Matthews, do not consider as wide a range of evidence. Moreover, Calabresi and Matthews concede that the “original intent” of the amendment and the expectations of the public were consistent with the constitutionality of laws banning interracial marriage, arguing only that the Amendment’s “original public meaning” cuts against those laws.

Upham’s extensive historical research shows that there was much greater support for striking down antimiscegenation laws among the Republican political elites who framed and ratified the Fourteenth Amendment than was previously thought. This understanding was also reflected in early judicial decisions interpreting the Amendment, especially those by Republican judges.

Upham shows that the right to marry other citizens was widely considered a standard common law privilege of citizenship in antebellum America. In the absence of constitutional barriers preventing it, most legislators and jurists believed that this privilege could be abridged by state legislation banning interracial marriage, as it indeed was in many states. The Privileges and Immunities Clause of Article IV, Section 2 only barred states from denying privileges and immunities of citizenship to out-of-staters on a discriminatory basis. It did not bar restricting interracial marriage (or any kind of marriage) by residents of all states alike.

This state of affairs changed, Upham argues, when the Privileges or Immunities Clause of the Fourteenth Amendment forbade state denial of the privileges or immunities of citizenship across the board, regardless of whether there was discrimination against out-of-staters or not. During the drafting and ratification of the Fourteenth Amendment, many Democratic opponents charged that it would have exactly this effect. Significantly, most Republican supporters either accepted the point, or chose not to deny it. In 1862, the Republican-dominated wartime Congress had repealed the District of Columbia’s law banning interracial marriage. Several Reconstruction-era Republican controlled constitutional conventions in former Confederate states voted against adopting such laws. Among the prominent Republicans who emphasized that black citizenship was incompatible with laws banning interracial marriage were Indiana Governor Oliver Morton and Massachusetts Senator Henry Wilson.

Perhaps even more persuasively, Upham shows that Republican judges and political elites interpreted the Amendment this way in the immediate aftermath of its enactment. By 1873, bans on interracial marriage had either been repealed or went unenforced in “both a clear majority of states and a super-majority of the states that had ratified the Amendment.” This was true in nearly all the Republican-controlled states in the North, and in those reconstructed southern states where Republicans held sway thanks to an alliance between white unionists and newly enfranchised African-Americans. Upham demonstrates that this combination of repeal in some states and nonenforcement in others was in large part due to the conviction of most Republicans that antimiscegenation laws were now unconstitutional.

In addition, numerous Republican-appointed judges reached the same conclusion when antimiscegenation laws were challenged in southern states that continued to try to enforce them in the early 1870s, including decisions in Alabama, Indiana, Louisiana, Mississippi, North Carolina, and Texas. In Alabama and Texas, the relevant decisions were made by the state supreme court.

This tide of support for the right to marry across racial lines was eventually undermined by two forces: the Supreme Court’s closely divided 5-4 decision in the Slaughterhouse Cases (1873), which adopted an extremely narrow interpretation of the Privileges or Immunities Clause, and the rise of racist “Redeemer” state governments in the Southern states, which reinstituted enforcement of laws banning interracial marriage and appointed judges who upheld them.

Still, the most relevant period for originalist purposes was that immediately around the time of drafting and ratification. The Republicans who drafted, ratified, and interpreted the Amendment in those years largely agreed that it banned laws forbidding interracial marriage.

Upham’s article is the most extensive originalist rationale for Loving v. Virginia to date. It represents major progress in the literature on the subject. But it does not completely resolve the debate over originalism and interracial marriage. The evidence it presents is stronger with respect to some versions of originalism than others.

When originalism first reemerged as a major school of thought in modern academic debates over constitutional interpretation, most originalists advocated “original intent”—the theory that provisions of the Constitution should be interpreted as intended by the political elites who drafted and ratified them. Upham’s evidence goes a long way to showing that the relevant elites mostly believed that the Fourteenth Amendment bans antimiscegenation laws.

Since the late 1980s, however, most originalists have shifted to the “original public meaning” camp, which argues that the Constitution should be interpreted as it would be understood by readers of the text at the time it was ratified. Original meaning originalists disagree about exactly whose understanding of the text is relevant. Some emphasize the understanding held by legally sophisticated readers, such as judges, lawyers, and legal scholars. Others focus on the understanding of a hypothetical “reasonable” reader of English at the time, who may or may not be legally sophisticated, depending on the views of the theorist in question.

Upham’s evidence is very powerful from the standpoint of theories of original meaning that emphasize the understanding of actual or hypothetical readers expert in law. Most of his evidence consists of the views of just such experts, particularly those associated with the political movement that supported the Amendment. But many original meaning theorists emphasize not the understanding of experts, but that of the general public—either the actual public or a hypothetical non-expert “reasonable” reader at the time. After all, ratification is ultimately supposed to be a democratic process that expresses the will of the people, not just a small elite.

It is far from clear that ordinary citizens shared the understanding advocated by Republican elites in the 1860s and 1870s. The text of the Amendment does not unequivocally state that laws banning interracial marriage are now unconstitutional. The average reader of English would not readily understand that a provision barring states from “abridge[ing] the privileges or immunities of citizens of the United States” would necessarily require them to permit interracial marriage. And there is little doubt that most whites, in both the North and the South, strongly disapproved of interracial marriage, as they continued to do until late in the twentieth century. Had a majority of the general public believed that the Fourteenth Amendment would require state recognition of interracial marriages between blacks and whites, opposition to the Amendment would likely have been much stronger, and it might not have been ratified. Upham does cite a few newspaper articles suggesting that popular support for interracial marriage was rising in the 1860s and early 1870s. But more evidence would be needed to show that such support had advanced to the point where anything like a majority of voters believed that the Fourteenth Amendment had banned antimiscegenation laws.

Upham has provided an impressive and important new defense of the view that Loving v. Virginia is consistent with originalism. His article does not definitively resolve the debate over the issue. But it is an important step forward.

Cite as: Ilya Somin, Originalism and Interracial Marriage, JOTWELL (August 13, 2014) (reviewing David R. Upham, Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause (2013), available at SSRN),

Understanding Prophylactic Supreme Court Decisions

John F. Stinneford, The Illusory Eighth Amendment, 63 Am. U.L. Rev. 437 (2013).

It is a rare achievement to write about a case in the constitutional law canon and tell us something we did not know. This is the achievement of John Stinneford’s recent article, The Illusory Eighth Amendment. Despite its title, the most interesting part of Stinneford’s article is actually an analysis and critique of the Supreme Court’s famous decision in Miranda v. Arizona.

For those who neither study criminal procedure nor watch police procedurals, Miranda held that in the absence of a provable superior alternative:

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.

Standard accounts treat Miranda as a “prophylactic” decision. According to this view, the Constitution directly prohibits the use of compelled confessions. But the Supreme Court concluded that the direct prohibition was too narrow, either because it was too difficult to enforce or because the error costs were asymmetric. The Court responded to the problem by intentionally creating a “prophylactic” rule that swept broader than the Constitution itself. This ensured that the underlying right was adequately protected.

Stinneford argues that Miranda did not actually create a prophylactic rule. If Miranda were a prophylactic rule, the Court would have (1) described what the regular rule is, and then (2) created an additional rule to provide the prophylactic protection. But on Stinneford’s reading, the Miranda Court actually flirted with at least three different theories of what constituted impermissible compulsion, and its rule underprotected two of them. In other words, Miranda may not have been intended prophylactically at all.

As Stinneford puts it, “The truth of the matter is that the Supreme Court in Miranda did not particularly care what the term ‘compelled’ means.” (“Compelled” is the word used by the Fifth Amendment.) Here is his key point:

In Miranda, the Court flirted with the idea that certain kinds of pressure tactics and trickery might constitute compulsion, but never quite reached this conclusion. The Court also flirted with the idea that custodial interrogation itself might constitute compulsion because of the pressures associated with custodial interrogation, but never quite reached this conclusion. Because the Court never held that these practices constituted compulsion (and indeed, never determined what “compelled” means), many of the practices disliked by the Miranda Court are still used today. As long as the police give the requisite warnings and obtain the requisite waiver, they can still keep the defendant alone in a room and question him for hours, using psychological pressure and trickery to induce a confession.

Since Miranda, the Supreme Court has decided many cases that seem to narrow its scope, as discussed in Barry Friedman’s The Wages of Stealth Overruling. Stinneford’s analysis affects how we assess these more recent cases. On the standard account of Miranda as purely prophylactic, the erosion of Miranda may not be a big constitutional problem. If the core constitutional right remains protected, the newer cases just reduce Miranda from a big prophylactic rule to a slightly smaller prophylactic rule. But if Stinneford’s account is right, eroding Miranda may actually underprotect the core right even more. For example, in the recent decision of Berghuis v. Thompkins, the Court concluded that Miranda permitted the use of a defendant’s confession made after he sat in custody through hours of unsuccessful questioning. If pressure tactics and custodial interrogation are compulsion, this is erosion of the core right, not just erosion of prophylaxis.

The Supreme Court’s later decision in Dickerson v. United States also suggests that Miranda is ultimately not a prophylactic rule in this sense. There the Court held that Congress lacked the power to overrule Miranda, because of that case’s constitutional status. Notably, the decision used the word “prophylactic” only once, quoting a prior case (which it distinguished).

The analysis also has broader implications for Supreme Court doctrine and prophylactic rules more generally. Stinneford’s article generalizes to the Eighth Amendment context. We might generalize further. Stinneford argues that the Court ought to first be clear about the scope of the core requirement before it creates a doctrinal rule designed to protect the core. Other scholars have suggested that when relying on precedent, the Court ought to first figure out what the Constitution actually requires, and then analyze whether precedent requires something different. In each case, the two-step process helps us figure out what work the Court’s doctrine is actually doing, which also affects how to think about future cases narrowing or broadening the doctrine.

On the other hand, the Court’s lack of clarity may be strategic. If courts clearly stated that the Constitution requires X, but they were going above and beyond to require Y, would its decisions have the same legitimacy? How much of the Court’s constitutional authority stems from the fact that it purports to be interpreting the Constitution, rather than erecting an explicitly separate legal rule on top of the Constitutional meaning? I’m sure many law professors have no problem with layered doctrine or prophylactic rules, but how would other political actors and common citizens react if the Court’s lawmaking role were exposed?

I suspect that it turns out to be important to distinguish extra-constitutional prophylaxis of this sort from constitutional decision rules. When constitutional violations are genuine but hard to spot, or the relevant standard is difficult to articulate or apply, courts might devise an implementing rule that is clearer than the underlying standard. This kind of doctrine is tethered to direct constitutional meaning and relatively uncontroversial. On the other hand, if the Court admits that it is going above and beyond the constitutional requirements, it is acting at the outer reaches of its authority.

The lesson of Miranda and Dickerson may be that the authority of judicial doctrine depends on which kind of rule it is: constitutional doctrine has much greater authority than extra-constitutional prophylaxis.

Cite as: William Baude, Understanding Prophylactic Supreme Court Decisions, JOTWELL (July 14, 2014) (reviewing John F. Stinneford, The Illusory Eighth Amendment, 63 Am. U.L. Rev. 437 (2013)),

The Battle Between Law and War

Deborah N. Pearlstein, Law at the End of War, 99 Minn. L. Rev. -- (forthcoming 2014), available at SSRN.

The United States has formally fought a “war on terror” since 9/11, but a key question is whether it will ever end. In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), for example, the U.S. Supreme Court essentially pronounced that enemy combatants in Guantanamo could be held for the “duration of hostilities.” It is not clear, however, when that will occur, especially since the war is principally against a non-state group, Al Qaeda, bent on terrorizing the U.S. for as long as the group survives. As Professor Deborah Pearlstein shows in her important new article, Law at the End of War, U.S. Supreme Court decisions contain language that has been interpreted to mean that when a war ends is a political question. Marshaling U.S. Supreme Court precedents, international law, the related law of armed conflict, and public policy interests, Pearlstein argues persuasively to the contrary.

One of Pearlstein’s central arguments is that the judiciary has long been willing to decide when a war has ceased. These determinations have major legal consequences, since war triggers the applicability of important statutes and conventions. For example, she counters conventional views regarding The Prize Cases, 67 U.S. 635 (1863), where the question was whether President Lincoln had the “right” to impose a naval blockade on southern ports after the Confederacy attacked Fort Sumter in 1861. While the Court said it “must be governed by the decisions and acts of the political department of the Government” on the question of “what degree of force the crisis demands,” she convincingly asserts that this simply means Lincoln had the power to decide to shoot back. The Court did not exclude itself from deciding whether war existed in light of the President’s actions. Indeed, the Court rejected executive branch arguments that it must abstain from such assessments, as a matter of international law, unless Congress formally declared war.

The Court was even bolder in Ex Parte Milligan, 71 U.S. 2 (1866),when it rejected the legality of the military’s 1864 military commission trial of U.S. citizen Landon Milligan because the trial site, Indiana, was outside the war zone. Thus, the military court lacked jurisdiction. This judicial determination occurred despite the fact that, as the dissent correctly explained, there was evidence of hostile groups in Indiana taking actions supporting the Confederacy. Pearlstein then references several other civil war related cases where the Court interpreted statutes that were connected to whether war was ongoing.

Pearlstein next argues that World War I and II cases support her argument. For example, the Court’s decision in Ludecke v. Watkins, 335 U.S. 160 (1948), has been viewed as placing sharp limits on its adjudicatory role. But the Ludecke Court actually analyzed “in detail the factual and political state of affairs surrounding Ludecke’s final order of removal in 1948…[s]uch a fact-intensive analysis is not what one expects of a case concluding the matter of war was non-justiciable.”

Pearlstein moves forward in time to examine one of the Court’s seminal political question cases, Baker v. Carr, 369 U.S. 182 (1962).Though Baker concerned reapportionment, the Court discussed its inability to review a President’s decision to grant diplomatic recognition to a foreign government. But the Court in Baker fundamentally limited the political question to instances where, among other considerations, no legal criteria exist or finality is needed. These limits allow Pearlstein to argue that the question of whether hostilities concluded can be based on objective criteria in many contexts, unlike the inherently political decision to recognize another government.

Moreover, her position is supported by the Supreme Court’s recent refusal to find a political question in a sensitive foreign relations case involving Israel and the status of Jerusalem, Zivotofsky v. Clinton, 566 U.S. ___ (2012). The Court there overturned lower courts on the political question issue. And of course, the Supreme Court’s famous “war on terror” decisions in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), Hamdan v. Rumsfeld, 548 U.S. 557 (2006), and Boumediene v. Bush, 553 U.S. 723 (2008),rejected government arguments that the Court should essentially abstain. Instead, the Court imposed due process-type requirements derived from the U.S. Constitution and international law.

The next section of the article contains a complex, yet convincing, discussion of international law, and the law of armed conflict, as they relate to the duration of hostilities. Pearlstein advocates that courts determine whether war is ongoing, especially with non-state combatants, by use of a multi-factor test that she derives from varying legal sources. Thus, the International Criminal Tribunal for the Former Yugoslavia examined two factors in making similar determinations: the intensity of violence (e.g., the number and duration of confrontations, intensity, number of weapons used, numbers of forces, etc.), and whether a non-state party had “organized” armed forces (e.g., an identifiable command structure, the capacity to sustain military operations, etc.). She argues that American courts can employ this test in evaluating whether war is ongoing, especially since the test involves the sort of empirically based balancing frequently employed by the judiciary. She acknowledges that courts must be more deferential in some cases depending on these and other factors (for instance, whether secrecy is needed), and she does a good job of admitting where her arguments are weakest while still supporting them.

Pearlstein’s last section, “Beyond the Doctrine,” is especially powerful given the foundation laid in the other sections. Here, she presses the structural and policy arguments for her position. Her separation of powers analysis shows how the arguments for use of the political question doctrine (e.g., courts are undemocratic) are especially weak when an individual rights issue is involved compared to a more structural question. For example, the court is reinforcing democratic accountability, and protecting civil liberties, when it stops a President from exceeding his constitutional mandate.

She also shows that Congress and Presidents, including George Washington, have a history of seeking cover behind judicial rulings in the war-related area. Summing up, she writes, “As with the MCA [Military Commission Act], the existence of hostilities in the AUMF [Authorization of the Use of Military Force, post 9/11] context is largely a question about actual events in the world, and in this sense a discoverable set of facts” that courts can evaluate.

For all of these reasons, Pearlstein’s article is must reading for those who seek a greater understanding of the role that courts can play during wartime.

Cite as: Mark Kende, The Battle Between Law and War, JOTWELL (June 18, 2014) (reviewing Deborah N. Pearlstein, Law at the End of War, 99 Minn. L. Rev. -- (forthcoming 2014), available at SSRN),

Looking for Mr. (or Ms.) Rights

Emily J. Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (Princeton University Press, 2013).

I am on the prowl. It’s 1 a.m. and I’ve been looking for Mr. (or Ms.) Rights all night. I’ve been hanging out in every Article of the Constitution of the United States and I have been deep into the pages of the United States Reports and the Federal Reporter. Oh, I have found plenty of negative rights, like the right to be free from cruel and unusual punishment and the right not to be twice placed in jeopardy for the same criminal act. But I need something more positive in my life. I want those things that make a person happy, like medical care, clean air and water, good working conditions, and a good education for my kids. I want positive rights.

Even though I turn on my hundred-watt charm, the federal courts keep turning me down. Then the person next to me slaps a book on the bar and says, “Take a look at this. I think it’ll get you what you want—or at least what you need.”

The book is Emily Zackin’s excellent volume Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights, published last year by Princeton University Press. The book is based on Zackin’s doctoral dissertation; she is currently on the political science faculty at Johns Hopkins University. The book’s thesis is that state constitutions are the place to look for positive rights, and after reading this wonderfully written and carefully researched volume, I realize she’s right. I’ve been looking in all the wrong places. No more DeShaney and San Antonio Independent School District v. Rodriguez in my future. I am going to look closer to home, at the provisions of state constitutions and the cases decided under them, rather than at the musings of that distant, unresponsive government in Washington, D.C.

Zackin begins by exploring what she calls American Constitutional Exceptionalism, the idea that, in contrast to most other developed democracies, the United States does not recognize positive rights. By focusing on state constitutions, Zackin explodes this myth. For example, the Missouri Constitution of 1865 contained an education clause (“The general assembly shall establish and maintain free schools for the gratuitous instruction of all persons . . . between the ages of five and twenty-one years”) similar to Belgium’s; the Wyoming Constitution of 1889 contained an article protecting labor (“the rights of labor shall have just protection through laws calculated to secure to the laborer proper rewards for his service”) similar to Peru’s.

The centerpiece of Zackin’s book comprises the chapters on particular positive rights commonly found in state constitutions, in the areas of education, workers’ rights and environmental protection. Of the three, positive education rights are the most familiar. Many states have constitutional provisions requiring the state to provide free primary and secondary education. Across the country, inequality and low-quality, underfunded schools (due to local financing) have provoked litigation over school funding, with state supreme courts wrangling with state legislatures, governors, and local school boards over reforms; Kansas is in the middle of such a controversy today. Less familiar are positive rights in state constitutions protecting labor (including compensation and working conditions) and rights involving environmental protection.

Zackin also does an admirable job defining positive rights and distinguishing them from negative rights. She confronts head on the claim that there is no such distinction because, paraphrasing one proponent of that view, “all rights require both restraint and active intervention if they are to be fully realized.” She also has to deal with the view, associated most recently with the Critical Legal Studies Movement, that the distinction is meaningless because government action is always lurking in the background. Unemployment, for example, is the product of government fiscal and monetary policy. Her answer is short and sweet: “the activists who shaped state constitutions perceived an important difference between governmental action and restraint. They also distinguished between threats posed directly by government itself and dangers that stemmed from other sources.” This is an effective practical response to a theoretical challenge.

Zackin’s reply to the “no such distinction” critique is related to one of the great joys I experienced reading this book. As a political scientist, Zackin is not myopically focused on decisions by the Supreme Court of the United States or even state supreme courts. Rather, her field of vision includes the social and political movements that led to the positive rights-bearing clauses contained in many state constitutions. We lawyers need more help bringing the insights of political science into the core of our work of interpreting the law. Zackin has done us a great service in this regard.

Finally, I want to draw attention to Zackin’s wonderful analysis of the nature of state constitutions and the political processes underlying them. Many state constitutions are quite different from the federal Constitution. They contain provisions that may seem at first glance unworthy of inclusion in a constitution, such as New York’s provision on the width of ski trails. Zackin’s rich discussion of how such clauses come to be included in state constitutions and what we can learn about the politics underlying them is invaluable to the constitutional law enterprise. Even when the politics are not pretty, such as the racist motives behind some labor and education clauses, Zackin puts it all on the table in a way that enriches our understanding of state constitutions and state constitutional politics. Zackin’s book convinced me that we lawyers are seriously mistaken when we equate “constitutional law” with “federal constitutional law.”

So I have found Mr. and Ms. Rights, and now my problem is that there are too many choices. Which of the 50 available choices is best for me, or can I develop a long-term relationship with multiple state constitutions? Only time will tell, but Emily Zackin’s excellent book has sent me well on my way.

Cite as: Jack Beermann, Looking for Mr. (or Ms.) Rights, JOTWELL (May 19, 2014) (reviewing Emily J. Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (Princeton University Press, 2013)),

Denigration as Forbidden Conduct and Required Judicial Rhetoric

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cite as: Paul Horwitz, Denigration as Forbidden Conduct and Required Judicial Rhetoric, JOTWELL (April 18, 2014) (reviewing Steven D. Smith, The Jurisprudence of Denigration, U.C. Davis L. Rev (forthcoming, 2014), available at SSRN),

Constructive Criticism

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

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

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

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

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

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

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

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

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

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

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

* * * * *

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

Cite as: Pat Gudridge, Constructive Criticism, JOTWELL (March 21, 2014) (reviewing Curtis A. Bradley & Neil S. Siegel, Constructed Constraint and the Constitutional Text, Duke Working Paper (2014)),