Constitutional Law

Frederick Schauer

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

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

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

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

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

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

Paul Horwitz

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

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

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

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

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

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

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

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

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

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

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

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

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

Mark Tushnet

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

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

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

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

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

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

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

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

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

Louis Michael Seidman

Presidents of the United States do not unilaterally extend their term of office, jail all their opponents, or rule by decree. The Supreme Court does not (or at least does not usually) declare its favored candidate to be President. Congress does not abolish the Supreme Court or create an official religion. Why not?

In an important new article, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657 (2011), Daryl Levinson reminds us that these familiar facts about our world are deeply perplexing and that the usual explanations for them are manifestly inadequate.

It is not as if the problem is new.  At the founding, many of the framers disparaged “parchment barriers,” which, they thought , would do little or nothing to constrain self-interested government officials. James Madison’s famous solution to the problem was to divide power so as to create conflict between various institutions of government.  This conflict, he thought, would provide built-in protection for minority rights.

As Levinson correctly points out, the Madisonian solution is woefully inadequate. First, there is no reason to suppose that individual actors will be loyal to the institution they find themselves in rather than to their political ends.  A Democratic member of Congress who favors President Obama’s policies might well also favor extensive delegation of congressional power to the President as the best means to put those policies in place.  Second, Madison’s solution works only if the institutional arrangements that produce conflict are themselves stable.  But what, other than parchment barriers, prevents powerful political actors from overturning these arrangements?

Levinson improves on Madison’s solution by bringing modern tools of game theory, political science, and political psychology to bear on the problem.  For example, in circumstances where everyone will benefit from coordinating their activities, it is possible for groups to develop strategies that, over time, prevent selfish defection.  Thus, Democratic presidents leave office when their term ends in part because they fear that if they don’t, Republican Presidents will extend their terms.

Even when these strategies fail, existing political arrangements may be reinforced by a feedback loop.  The arrangements serve to empower groups which, once empowered, use their power to protect those arrangements.  For example, the Constitution’s free speech guarantees led to the creation of vast media enterprises that, in turn, have a vested interest in protecting free speech guarantees.

People also become acculturated to particular political arrangements and make investments that are premised on the continuing existence of those arrangements.  As a constitution ages, these habits and commitments strengthen the bonds linking us to existing institutions and practices.

Levinson convincingly argues that unlovely, self-executing forces like these protect political stability in a way that neither parchment barriers nor mere moral obligation can.  His argument therefore marks an important advance in legal and political theory.  Indeed, for reasons that I describe below, the advance may be more important than Levinson himself realizes.

Where Levinson goes wrong, at least in my judgment, is in claiming that the forces he describes reinforce constitutional commitment. Instead of demonstrating why constitutions work, he has actually shown why they are unnecessary. Constitutionalists regularly claim that without constitutional obligation, our politics would quickly become tyrannical or chaotic or both.  But all the phenomena that Levinson writes about work against tyranny and chaos whether or not there is a constitution.  Indeed, Levinson’s central point is that moral obligation to obey constitutional commands is neither necessary nor sufficient to produce order and liberty.  It is somewhat mysterious, then, why he thinks that his argument explains constitutional commitment.

To be sure, as Levinson argues, written constitutions sometimes serve as useful focal points.  But, as he also points out, older constitutions inevitably become increasingly disconnected from social reality.  An old constitution like ours might actually prevent us from reaching sensible and efficient solutions to our problems. For just this reason, in many cases we have abandoned the Constitution itself as a focal point and substituted, in its stead, judicial decisions, often far removed from constitutional commands, as a basis for political settlement.  The Supreme Court’s decision in Bush v. Gore is only the most dramatic and notorious example of this pervasive phenomenon.

What Levinson has really accomplished, then, is quite revolutionary.  He has shown us why the myth of constitutional obligation should be dispelled.   There is simply no reason to believe that our social and political fabric would unravel if we gave up on the idea that we must obey commands written more than two centuries ago by people who knew nothing of our world.  The sooner we recognize that these people have no solution for our modern problems, the sooner we can get on with the kind of serious and unfettered debate that holds out some hope of solving them.

Adrian Vermeule

In the large and ever-growing category of articles I wish I’d written, the latest entry is Rick Pildes’s withering critique of a standard line about the Supreme Court.  The standard line holds – roughly speaking, and its imprecision is one of the article’s main points – that the Court “cannot and does not stray too far from ‘majoritarian views’ ….  If the Court does, larger political forces bring the Court back into line; the Justices, knowing this, do not wander far.” (p. 105).  In the context of the Court’s recent Citizens United decision, Pildes exposes the ambiguity and fragility of this view.

Pildes traces the thesis of a majoritarian Court back as far as a book by Dean Alfange in 1937, although the same claims were clearly articulated by James Bryce in his neglected classic The American Commonwealth, first published in 1889.  Whatever its origins, the thesis is usually associated with Robert Dahl’s classic 1957 article, which Pildes contrasts with the nearly contemporaneous identification of the “countermajoritarian difficulty” in Alexander Bickel’s 1962 book on the Court.  Pildes argues that later commentators have taken the Dahl article and run too far with it, overreacting against a romanticized image of the Court as heroic guarantor of minority and individual rights.  Thus Pildes offers a partial rehabilitation of Bickel as against, not Dahl himself, but rather Dahl’s successors.

The thesis of the majoritarian Court is really a complex of different theses, with different moving parts and different implications.   In Pildes’s words, “[t]oday’s majoritarians are able to cast the Court as so powerfully constrained by ‘majoritarian pressures’ because they rely on constantly varying and slippery conceptions of ‘the majority’ that purportedly constrains the Court” (p.116).  Among the possible “majoritarian” baselines are (1) current “mainstream public opinion,” as identified by aggregated national opinion polls; (2) a currently dominant political coalition in the nonjudicial branches; (3) a dominant political coalition at the time relevant Justices were appointed, which – because of the increasingly long average tenure of the Justices – will often differ from the coalition described by (2) above; (4) the presidential wing of the dominant party; (5) the “lawmaking elite”.  (I have omitted citations to the theorists who have propounded one or another of these baselines, but Pildes’s article names names).

Part of the problem with these competing baselines is their very multiplicity.  One or another of them is usually available to anyone who wishes to claim that the latest apparently countermajoritarian decision is really majoritarian, if only we understood the true state of politics.  The consequence is that while particular majoritarian theses may be falsifiable, a general commitment to a majoritarian view of the Court is not, because it can skip happily among various ways of specifying the argument.

Furthermore, Pildes identifies a fallacy of aggregation that sometimes underpins majoritarian arguments.  It may be true that any sufficiently large set of the Court’s decisions, taken as a whole, will be largely majoritarian, somehow defined.  But the property that characterizes the group need not characterize its parts or members, so it does not follow that each decision within the set will be majoritarian, taken one by one; the latter claim commits what logicians call a fallacy of division.  In economic terms, there is a difference between the short run elasticity and the long run elasticity of constitutional law.  In the long run, political institutions – including the Court – will supply the law that a critical mass of people want, so constitutional rules will be long-run elastic.  In the short run, however, constitutional law may be importantly countermajoritarian at any given time, because political adjustment of the law relies on mechanisms, like the appointments process, that take time to operate.

Indeed, as Pildes goes on to argue, it is plausible to think that the Court’s scope for countermajoritarian decisionmaking will increase in the future, given various background changes in American politics.  The polarization of legislative parties and the increasing volatility in partisan control of the nonjudicial branches both tend to increase the “gridlock interval,” or the range within which the Court can decide what it wants because one party or the other will block efforts to overturn its decision.  The same phenomena make it difficult for either party to muster a sustained strong of appointments that would reshape the Court’s behavior.  The increasing tenure of the Justices creates an ever-widening gap between the preferences of the appointing coalition and the preferences of current national majorities.  And there is a large gap between the Court’s diffuse or ambient support in public opinion and the public’s dim view of other institutions, especially Congress.

If the majoritarians have overreacted to Court romantics, Pildes offers balanced judgment and clearminded assessment of different majoritarian theses and mechanisms; he is careful to avoid overreacting in the other direction.  Viewed over decades or generations, the Court will not get too far out of line with what enough people want.  But that is a thin claim of dubious utility.  The long run may be getting longer, as structural trends in politics clog or slow the mechanisms of political correction and thus give the Court increasing autonomy.  In any event political life is a succession of short runs lived here and now; Keynes’s dictum about the 100 per cent rate of long-run mortality holds for constitutional law as well as for economics.  The eventual elasticity of constitutional law offers cold comfort to anyone concerned with countermajoritarian judging.

Paul Horwitz

Imagine two speech scenarios.  In the first, a noted scientist publishes a paper offering specific, detailed, and accurate empirical evidence concerning the genetic structure of a rare and fatal disease.  Few people suffer from the disease, and even fewer will understand the paper, but it represents a great leap forward in understanding the underlying nature of the disease.  The paper does, however, include patient information that is supposed to be confidential under federal privacy laws.  In the second, a newspaper published a letter to the editor by a local crank charging that the climate change movement is a worldwide conspiracy in which scientists are deliberately lying to the public.  The letter is a poorly supported rant.  Which speech deserves greater protection under the First Amendment?

Although he would offer some protection to both, Ashutosh Bhagwat argues, in a new working paper, Details: Specific Facts and the First Amendment, that the second speech—the false, unhelpful work of what Holmes would have called a “poor and puny anonymity”—deserves more protection than the paper that may revolutionize understanding and treatment of a variety of genetically based disorders, a Nobel Prize in waiting.  His answer is not outrageous, and some may find it unsurprising.  But even recognizing that the question exists is important.

Bhagwat is riding at the crest of a wave.  The status of facts under free speech law is of increasing interst to various leading First Amendment scholars.  They include Frederick Schauer, whose paper Facts and the First Amendment I reviewed here some time ago; Eugene Volokh, who has written on similar issues in his article Crime-Facilitating Speech, 57 Stan. L. Rev. 1095 (2005); Robert Post, who in a forthcoming book discusses the place of knowledge-generation within First Amendment law; and Mark Tushnet, whose recent paper on the Stolen Valor Act discusses “the constitutionality of regulating false statements of fact.”   Bhagwat’s paper, with its focus on true rather than false statements, makes a valuable contribution to this emerging literature.  But its value lies in its very existence as well as its substance.  When this many leading scholars zero in on an issue, that is good evidence of a problem of some kind.

Part of the problem in this area lies with the kinds of sweeping generalities that often festoon First Amendment opinions.  A classic example is Justice Holmes’s statement that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”  Another is the Court’s statement, in Gertz v. Welch, that “under the First Amendment, there is no such thing as a false idea.”  Still other generalities are not mere rhetoric, but powerful doctrinal rules.  Thus, the central rule of modern First Amendment doctrine is that government may not regulate speech on the basis of its content; and an increasingly important area of First Amendment law is government speech doctrine, whose exclusion of government speech from the strictures of the First Amendment has taken on a vast scope in recent years.  These tropes and rules are grounded in sound intuitions.  But in leveling so much speech, they leave profound complications concerning the value and nature of factually detailed speech unaddressed.  Bhagwat’s paper represents an effort to bring First Amendment law back to reality.

Bhagwat helpfully lays out several areas in which factually detailed speech may raise First Amendment concerns: 1) the public disclosure of personal details, such as newspapers’ publication of the identity of sexual assault victims; 2) the publication of “detailed instructions for criminal or dangerous behavior,” such as a manual on committing and concealing murders that is later used as a how-to guide by a killer; 3) the publication of scientific and technical details, such as a computer code that enables one to circumvent the encryption of DVDs and make them available for unlicensed copying; and 4) the publication of military and diplomatic secrets, as in the Pentagon Papers or Wikileaks cases.  In all these cases, Bhagwat writes, “the fundamental problem posed is whether factual speech, containing very specific details . . . , is fundamentally different for First Amendment purposes from more abstract literary, artistic, or political/ideological speech.”

Bhagwat argues that to answer this, we need to know what key First Amendment value we are seeking to advance.  His answer, like that of Robert Post, James Weinstein, and others, is that “the primary . . . function of the Free Speech Clause of the First Amendment is to facilitate political dialogue, and more generally, to enable the process of democratic self-governance in the United States.”  The value of factually detailed speech must be determined in light of how, and how much, it contributes to public discourse.

That value will vary depending on the information involved.  For example, “speech concerning scientific and technical details will often play a central role in democratic discourse.”  So may some military or diplomatic secrets.  On the other hand, “personal details and instructions for criminal or dangerous behavior . . . seem to have far less to do with the political sphere.”  They may matter in particular contexts, but on the whole, the relationship of such specific details “to any form of self-governance is tangential at best, and even where the relationship exists, it is often less direct than with respect to pure ideas”—no matter how idiotic the idea.

The need to consider the context of specific speech involving factual details is ultimately unavoidable, Bhagwat argues.  But it can proceed on a sounder footing than we have today.  Under current law, “the same doctrinal rules that apply to regulations of ideas apply to the regulation of details.”  That makes for an awkward fit, because “laws seeking to directly suppress details will almost always be content-based,” given that they will single out precisely the details that need to be suppressed, and will thus face a heavy burden.  But, as is often the case in First Amendment law, “when faced with such regulations, courts have tended to twist or even ignore that doctrine” in order to respond to the particular exigencies of a case.

Bhagwat argues that reform must start by recognizing that “not all details are created equal.  Some factual speech is central to the process of self-government, and so deserving of the highest constitutional solicitude, while other such speech is far more peripheral.”  In each case, the court must begin by considering a mix of factors, such as “whether the speech was a part of public discourse, and the extent of the public interest in that speech.”  Factual details that lie within the core of public discourse should be vigorously protected.  “Factual details outside that core,” on the other hand, should undergo intermediate scrutiny.  That test, which is designed to “analyze regulations of speech which has some substantial value, but which clearly falls outside the core of the First Amendment’s protections,” will allow courts to weigh the value particular factual details for public discourse against their potential harms.  And it will be more forgiving than the test used for some forms of opinion or advocacy, such as speech urging the violent unlawful overthrow of the government, because it will not insist that the speech be highly likely to cause imminent harm.

As with most First Amendment reform pieces, the value of Bhagwat’s piece lies less in the outcomes it recommends—judges do a reasonably sensible job already, and the changes he would like to see aren’t that dramatic—than in its capacity to better explain our intuitions, enhance judicial transparency, and offer guidance in future cases.  Even so, I have some bones to pick with it.  Bhagwat’s focus on particular kinds of restrictions on factually detailed speech gives us something more than the trees but something less than the whole forest.  In particular, he neglects three questions that may yield less of an immediate doctrinal payoff, but have a greater relationship to the doctrinal and epistemological difficulties that seem to plague the courts in this realm.  First is the question of institutional allocation: the key issue with respect to factually detailed speech may not be how much of it should be regulated, but who regulates it.  Second, Bhagwat’s suggestion that much factually detailed speech is less valuable to public discourse and self-governance than pure opinion speech is questionable.  Opinions may constitute the surface of public discourse, but they rest on a foundation of facts.  Opinions are plentiful and cheap; good facts are hard to come by.  As important as the question of how much we should protect factually detailed speech, then, may be the question of how we protect the generation of factually detailed speech.  Finally, and on a related point, it is worth asking how we can encourage the production of facts, and how Bhagwat’s approach contributes to the maintenance of sound incentives to produce facts.

What these questions have in common is that they suggest the need to make room in the First Amendment for certain kinds of institutions and institutional practices, despite First Amendment law’s apparent hostility toward ontent discrimination.  The courts may like to say that there is no such thing as a false idea, but universities—including public universities—could not survive without the ability to conclude that some thinkers are shoddy and their ideas lousy.  In the long run, the facts generated by this disciplinary process can be far more important to public discourse than any single letter to the editor written by a local crank; if we don’t tend to their development and protection, democracy will become idiocracy.  The best way to do so may be to recognize the role played in public discourse and the First Amendment by specialized institutions.  Although First Amendment law does a good deal along these lines in practice, it has little to say about it in theory.  Given his focus on the government as censor, neither does Bhagwat.  Over the long haul, however, these questions may be both more important than the question what to do with a hit man’s manual, and more deeply connected to the problems that confront current First Amendment theory and doctrine.

That said, simply by putting the spotlight on the issue of factually detailed speech, Bhagwat has rendered a great service.  Although his focus on the government’s censorial role may leave a good deal of terrain to be explored, he deals clearly and well with the issues within the scope of his paper.  This is a leading contribution to the emerging literature dealing with the epistemological crisis of the First Amendment.

Vicki Jackson

David Strauss has written an elegant and compelling book, the distillation of his work on constitutional interpretation over the last decade or more.   His argument is at once positive and normative. Strauss argues that most U.S. constitutional interpretation – and some of the most important and foundational of the Supreme Court’s constitutional decisions – can only be understood as a form of common law adjudication, developed over time based on practice and precedent far more than on constitutional text.  As a normative matter, Strauss argues that living constitutionalism, developed and constrained through the methods of common law adjudication, is a superior approach to interpreting the Constitution than is originalism.   Those not familiar with Strauss’ work should read the book; those who are will still enjoy the concision and insight with which his prior articles have been distilled.

The first two chapters include his attack on originalism and his defense of the virtues of common law constitutional adjudication.  The attack on originalism synthesizes critiques of the impossibility, and undesirability, of the kind of “constraint” imposed by originalism’s commitment to interpreting in light of specific original understandings, including the difficulty of reconstruction, the challenges of “translation” and the democratic challenge of giving controlling force to the original understandings of an instrument intended for present governance. Moderate originalism, he argues, in its appeal to general principles diminishes the key feature of constraint that originalism’s proponents emphasize.

For Strauss, “common law” approaches to constitutional interpretation is the best alternative to originalism—it represents the dominant mode of interpretation and has several virtues as an interpretive approach. On the positive claim, Strauss is clearly correct in drawing attention to the importance of common law analysis of judicial precedents in resolving U.S. constitutional cases; a comparative lens further supports this conclusion. (See my piece with Jamal Greene in the Ginsburg-Dixon collection.)

Strauss’ normative arguments begin from a jurisprudential view of law’s authority deriving, not from a positive command, but from its “evolutionary origin and its general acceptability to successive generations.” (37-38).  Its benefits include an epistemological humility, drawing from the wisdom of the past while permitting change, and a pragmatic concern with workability, an ability to adjust as experience warrants.  These benefits of the evolutionary common law approach bear a certain relationship to a conception of “law as enquiry,” see  H. Patrick Glenn, Persuasive Authority, 32 McGill L J  261, 288 (1987), an approach that is arguably more candid (44-45) and thus more accountable within both juridical and lay communities.

Strauss’ conception of the common law is one that places at least as much weight on its dynamic capacity for change as on its stability over time; it is no answer to an objection to a rule of law that it has always been done thus; some more encrusted versions of the common law might disagree.  Contrary to its critics, Strauss argues, common law constitutional adjudication is not unconstrained. A core analogy he draws is to the early 20^th century development of tort claims against manufacturers of mass products. Commenting on a case involving a claim for injuries caused by a defective car, Strauss shows how the privity requirement was subjected to very narrow exceptions, which then grew, and ultimately came to be abandoned, and how the courts then had to decide on the standard for manufacturer liability. (39-40).  Instead of seeing this as an unconstrained choice, Strauss argues that the precedents in fact foreclosed a wide range of options. (39).

Strauss illustrate the pervasiveness, and benefits, of common law approaches to constitutional decision making in two major areas, First Amendment and equality law.  His account shows the marked changes, for example, from Schenk v. United States (1919) to Brandenberg v. Ohio (1969).  Strauss reminds readers that original understandings, or strong strands among them, would have permitted laws prohibiting blasphemy, or civil actions for defamation without special defenses for comments on public officials, and might even have permitted prosecutions (but not injunctions) for speech critical of the government. Modern First Amendment law, which rejects all of these possibilities, arose in the 20^th century, spurred by arguments made by Holmes and Brandeis about the purpose of free speech in democracy, and reinforced by abatement of the period of panic and fear about dissident speech characteristic of the World War I period. (62-73).

In his chapter on equality law, Strauss argues that, just as the common law eventually rejected the distinction between inherently dangerous items and items in ordinary use (which had been important to defining exceptions to the privity requirement) as no longer workable, as changing society created a situation in which goods were often both dangerous and common,  prior to Brown the workability of the “separate but equal” idea had been systematically placed in doubt by prior decisions finding fault with various separate but equal approaches. The course of decisions, nominally operating under the Plessy regime, had revealed flaws in its premises, or its unworkability.  So that the ground had been prepared by the common law method for the decision in Brown.

The final element in Strauss’ analysis is the diminished role of constitutional text. Amendments, Strauss argues, are seldom of the same importance as interpretation in our constitutional evolution; indeed, amendments often simply ratify changes that have already occurred or, if not sustained by popular support, are largely evaded.  Yet the text does play a role, as “common ground,” defining with specificity some rules where clarity is important (such as when elections occur) and even, with respect to larger issues, by providing a framework for debate (e.g., what does “equal protection” mean).

The book implicitly raises a number of questions; I note only a few here. First, how to determine what, if anything, is settled. Strauss claims that affirmative action has shown over time its workability, and implies that it has become generally accepted.  (41-42).  Yet the Court upheld an individually tailored affirmative action scheme by only a narrow (and highly contested) 5-4 vote in Grutter v. Bollinger (2003); is it really so well accepted? More generally, determining degrees of settlement under Strauss’ account is difficult: he suggests that Roe v. Wade is a less settled point than is Brown (96-97), but it is unclear whether he sees Roe as more or less settled than the constitutionality of affirmative action. On his account, it would seem, a case that may seem foundational at any given time may become less so as society evolves.

Second, although in the context of U.S. debates over originalism it makes sense to look at the “living constitution” as “one that evolves, changes over time, and adapts to new circumstances, without being formally amended”  (p. 1), from a broader perspective, one might think of a “living constitution” as one that evolves and changes over time, both through changed interpretations and practices, and through formal amendments.  That is, one may establish the legitimacy of other sources of change without insisting on the unimportance of constitutional amendment. Strauss uses the failed history of the ERA to illustrate his claim that amendments are not important for constitutional development.  After all, even though the ERA was not ratified, the Court extended fairly rigorous review of gender based classification.  True, it has, but in the last ten years explicit gender classifications in citizenship laws have been upheld by the Court’s actions, based on a more relaxed form of intermediate scrutiny.  See Nguyen v. INS (2001); Flores-Villar v. INS (2011) (affirming, by an equally divided court, a lower court judgment upholding a gender discrimination in citizenship laws, relying on Nguyen).  The Court was closely divided on the application of intermediate scrutiny; had the ERA been passed it might well have been taken to crystallize a firmer dedication to the abolition of gender as a legitimate legal classification.

The very process of adopting an amendment may help create the kind of overwhelming national consensus on which judicial enforcement over the long run may rest.  Thus, as Strauss explains, by the time amendments are ratified they are confirmatory of change that has already occurred.  (116).  All this seems true; but is it possible that the very process of seeking amendment may help galvanize national, as opposed to state by state, efforts at change?  Even if so, this would not show that it was the amendment itself that caused the change; but how civil society organizes to promote change, in light of the procedures of Article V and any channeling effects on political organization they have, may be an important factor.

Third, are amendments really different from “precedents” in their constraining force? That amendments without lasting social support are undermined or evaded may not distinguish them from other sources of legal change, including judicial decisions and statutes.  The Court’s school prayer decisions have reportedly been subject to repeated resistance; Brown plainly was for a period; and the Court’s criminal procedure rules on searches and interrogations have been widely evaded as well.  (On structural issues, consider the evasion of the ruling in INS v. Chadha (1983); see Louis Fisher, The Legislative Veto: Invalidated, it Survives, 56 Law & Contemp. Probs. 273 (1993)).  True, to the extent an amendment is recognized as having a core content, stare decisis is not available to allow judicial overruling;  this may or may not be an advantage of amendments—for Strauss, it is a disadvantage, but for proponents of whatever change is represented by  a new amendment it would be an advantage.

Relatedly, to the extent that precedents are experienced as constraining one might ask further whether it is the precedents that are doing the constraining or rather the sense, by lawyers and judges operating in the U.S. legal community—of the reasonable, the possible?  Of course, if this sense of what is reasonable, or plausible, is itself constructed by existing legal materials  as well as by events—in politics, in society—external to the law, it becomes quite complex to differentiate the constraints of legal precedent, as experienced internally, from other influences.  Yet the same could be said, as well, of the amendments.

A more difficult question is whether there is any normative basis for deciding when, if ever, constitutional change must be sought by way of amendment and when the broader array of tools is available.  The answer lies, I think, somewhere in considerations of the rule of law and democracy, in ways that relate as well to the concern for specificity that Strauss identifies as bearing on interpretive latitude. (112-13).   When a specific command of the Constitution—for example, that each state must have two senators—is at issue, overturning this by construction poses real threats to the rule of law.  Is it impossible? No.  By the same reasoning that the holding in Brown was applied, in Bollinger, to the federal government, it would be possible to reason that as, over time the Constitution has come to rest more fully on the principle of popular democracy (as evidenced by the various franchise-expanding amendments), the Fourteenth Amendment itself should now be understood to require apportionment of the Senate by population.  What makes this argument implausible (or, in Strauss’ words, “unthinkable” (103-04)), and inconsistent with both the “rule of law” and with his  conception of the Constitution as “common ground,” is the clarity of the text, not only as to the two senators rule but as to the super-entrenchment of that rule in the Constitution.

So, one can agree that the constitution is “living” and can be interpreted in light of changed understandings without necessarily agreeing that all forms of constitutional change can legitimately be made by amendment.  And one can believe in the legitimacy of interpretive change by the court without necessarily agreeing that litigation, or legislation, are the preferred alternative to constitutional amendment.  Amendments remain a legitimate method of constitutional change; they are of less importance than precedent because they are harder to deploy, not because they are more likely to be ignored; and they offer a uniquely democratic and iterative process for deliberative decision making.

Finally, a question about metaphors.  Although “living constitution” has some provenance in the United States, see Howard McBain, The Living Constitution (1927), I want to suggest that a better metaphor would characterize the type of “organism” to which Justice Holmes referred in his opinion for the Court in Missouri v. Holland (1920), as a rooted rather than a free-floating form of life. In Canada, the term for what was created by Canada’s constituent act is the “living tree,” derived from an opinion by Lord Sankey, written in 1929, interpreting the 1867 constitutional act to include “women” in its textual word “person” so as to permit a woman to serve as a Canadian Senator (even though in 1867 the constitutional act would not have been so understood due to common law limitations on women’s capacities). As I have argued elsewhere, the “living tree” metaphor recognizes both the growth and uncertainty, and the rootedness, of a national constitution in its particular text and context. A “living constitution” conjures an organism, living like humans, and able to move around the entire world should it so desire.  A “living tree,” by contrast, captures the rooted nature of this kind of living law; it is difficult, indeed, completely to escape the past, to uproot the constitution and its text from the soil in which it was first planted.

Those familiar with the Canadian “living tree” doctrine will be struck by the cover art of Strauss’ book, which evokes a tree, though whether living or dead is something of a question.  A brown trunk emerges from the lower part of the book, seemingly growing out of the words in the text of the Constitution. The main part of the trunk then bends sharply to the right, at close to a 90 degree angle; its branches spring out in all directions — left, right, downward and upward.  None of the branches has any color but brown; no leaves are shown.  But at the outer end of some of the branch limbs appear red, or blue, stars.  What is this image supposed to suggest?  Is it a picture of a dead tree, suggesting what can happen to a deeply entrenched constitutional text if it is interpreted in an originalist manner? Or is it a picture of a living tree, reaching for the stars of the nation’s commitments?   Perhaps the ambiguity of the cover art could be seen as reinforcing one of Strauss’ arguments, about the necessity—and importance—of interpretation over time, in understanding, and in maintaining, the organic quality of our Constitution.  This review cannot do full justice to the arguments in this wonderful and accessible book—I hope you will read it.

Charles Shanor

Can a constitution “live”? Is the alternative to a “living” constitution reinterpreted and modernized by judges a “dead” constitution hopelessly out of touch with modern realities? William Van Alstyne, in Clashing Visions of a “Living” Constitution critiques (nay, mocks) several schools of living constitutionalism and sets out what he believes is the one true path to a living constitution. This essay is lively, insightful, irreverent and makes an important, if not wholly novel, set of points. It reminds me anew why I have recommended Van Alstyne’s “critical guides” to Marbury and McCardle to Constitutional Law students for years.

The essay (originally a lecture) opens with musings on confirmation hearings for Supreme Court justices and the proper scope of judicial constitutional review. Acknowledging that there are many schools of constitutional interpretation, Van Alstyne looks at various schools associated with the notion that the United States Constitution is a “living” constitution. He examines non-interpretivists’ (non-original interpretivists’s? ) efforts to “free us from the despair of textual uncertainty” and “the tyranny of-and-the-futility-of endlessly-contestable history.”

Van Alstyne focuses particular scorn on one non-interpretivist, Bruce Ackerman, who famously elucidated a de facto constitutional amendment outside the process provided in Article V. Noting that various amendments to the U.S. Constitution as originally understood could not support the interpretations given them by the Supreme Court, Ackerman (in Van Alstyne’s prose):

at once went on, forcefully, to declare that the Court’s decisions could nonetheless be rightly seen as actually resting on solid and secure foundations, namely, foundations of “nontextual amendments” or, to give credit (where such credit is surely due!), to what one may—in my own view—call “Ackerman” amendments, and, accordingly, all those who enlist in this school of constitutional jurisprudence are perhaps best described either as “Ackerlytes” or even, perhaps, as “Ackolytes” (but surely not so churlishly, perhaps, as mere “Ackermaniacs”)…. [Changes brought about through the appointment process by a President who was thereafter reelected] serve as “real amendments.”  And so, accordingly, it would be inappropriate for any later Supreme Court to go back [on such amendments] … [T]his is the way—or at least one equally valid way—in which you keep the Constitution “alive.”

What rapier-like prose! Could Pope have done better? But, lest I digress, we should return to the basic argument.

Constitutionalists, says Van Alstyne, fall into two basic camps: “obligationists” and “opportunists.” Discussing the lively but well-worn example of Hugo Black, Van Alstyne says the former read (and re-read!) the Constitution’s text.  Obligationist judges take seriously the Article VI oath to “support and defend this Constitution, not some other.” Though they may differ on interpretations of a constitutional phrase, they are committed to a non-living interpretive task, the living constitution left by them with the people through the Article V amendment process. Opportunists, conversely, whether from the right or the left, interpret “suitably adaptable clauses” expansively, ignoring clauses not aligned to their desires.

Using the metaphor of visible cambian rings that record a tree’s growth, Van Alstyne says amendments to the US Constitution register changes in society. A healthy society should display these changes in formal amendments, not through sleight-of-hand and scarcely visible reinterpretations by unelected judges (whether or not their appointing presidents are reelected). Is our society healthy? Not by this measure, for an absence of cambian rings signals petrification. Today, he hypothesizes, there is a “negative synergy” for new textual amendments because the public is unwilling to entrust new constitutional texts to opportunist judges who might expand upon the meaning of any such public commitment.

The failed Equal Rights Amendment, which provided an opportunity for one such authentic constitutional cambian ring, is illustrative. Opponents, with some justification, argued that this amendment, expansively interpreted in ways wholly unintended, might remake cultural norms (including dress differences), weaken military muscle, and undermine institutions like the family, motherhood, and marriage. By contrast, argues Van Alstyne, the 19^th Amendment, which “gave” women the right to vote, was a reflection that women had already been voting in a majority of the states at the time of the amendment. The “stealth” 27^th Amendment, ratified from 1789 to 1992 by far more dead than living Americans, is hardly a ring, but at least it is “of no particular harm.”

Providing “an illustration central to the theme of this lecture in a contemporary setting,” Van Alstyne hypothesizes a federal statute that reduces jury size for federal court criminal cases to seven persons (from the current twelve). Functionalist supporters might say this reform would save costs or reduce the number of hung juries, perhaps helping to take criminals off the street. Functionalist opponents might say that the problem of costs to the criminal justice system comes from the proliferation of crimes, not the number of criminals, and that reduction of jury size violates the “personhood” of the defendant.

Were one to peruse the text of the 6^th Amendment, one would find a “right to trial by jury” but no jury size specification. Does failure to specify mean any size goes? Would a speech by James Madison introducing the Bill of Rights in the first Congress that said “any size is fine” close the case (even though notes of the speech may not be accurate and others may have disagreed with Madison, either in Congress or in state ratification discussions)? Since there was no such speech, might one look to the Article III provision–“the trial of all crimes except in impeachment shall be by jury,” to the debates at the Constitutional Convention, and to the ratification debates to see if anything was said about jury size. In the Virginia ratification convention, it turns out, there was discussion of the point, and Madison (reportedly) said that “jury” meant “12” as a technical term going back to Blackstone. This interpretation, apparently, was acceptable to skeptics.

How does this relate to confirmation of judges, the point of departure for Van Alstyne’s essay? The point, he says (as forcefully as Ackerman pushes nontextual amendments), is that the people will be loathe to turn any new amendment over to judges for interpretation unless those judges are obligationists. If judges (and constitutional law scholars) take as their mission to fashion the world into their constitutions rather than this constitution, new cambian rings will not be forthcoming. Confirmation processes will remain political cat fights between opportunistic senators of the left and right, and Congress itself will continue to be lazy concerning its own constitutional constraints.

Having for several years taught a seminar on constitutional amendment, I second these observations, as well as this parting concern: “That during the decades of my own (misbegotten?) most active academic years, we may have so far gotten accustomed to the ‘exogenous’ Constitution that the amendment process has itself begun to recede down a rabbit hole … and the country may frankly be not really better—but significantly less—well off on that account.”

Interestingly, the Supreme Court, on the one occasion when it considered what it means to be “attached to the principles of the Constitution of the United States,” concluded (albeit with some dissent), that this did not mean attached to rights of contract, compensation for property taken, free speech, freedom of religion, bearing arms, (unlimited) other rights, states having all powers not (narrowly) delegated, equal protection, or due process. Rather, said the Justices in Schneiderman v. United States, it means attachment to the Article V process of authentic, difficult, super-majoritarian, and peaceful change.  Now that’s a living constitution!

Ilya Somin

Robert Cooter and Neil Siegel’s Collective Action Federalism is probably the most important academic article on constitutional federalism in several years. Cooter is one of the world’s leading law and economics scholars. Unfortunately, his work has not gotten the attention it deserves from constitutional theorists. Siegel is a leading constitutional law scholar in his own right.

In Collective Action Federalism, Cooter and Siegel argue that the congressional powers  enumerated in Article I, Section 8 of the Constitution should be interpreted in light of the goal of giving Congress the authority it needs to address collective action problems among the states. A collective action problem arises when members of a group want  a good, but have little or no incentive to contribute to its production, because they can instead try to free ride on  the efforts of others. This is likely to occur in cases where the good in question is a  “public good” for the group in question, one for which there is no way to prevent group members from consuming it even if they have not contributed to its provision.

Cooter and Siegel point out that the framers of the Constitution justified many of the powers enumerated in Article I as solutions to collective action problems among the states (though of course they did not use that terminology). For example, the power to raise and support armies was intended to provide the public good of national defense, which states often failed to contribute to under the Articles of Confederation. Similarly, the power to regulate interstate commerce was intended to be used to prevent states from adopting protectionist trade barriers against each other or impeding the movement of goods across their borders. Interstate free trade is a public good.

The authors argue that Article I, Section 8 should be treated as a “unified whole” rather than as a discrete set of unconnected individual powers. And they propose collective action theory as a unifying framework for interpreting that whole. Where there is an interstate collective action problem, they would give Congress the power to address it. Where no such problem exists, state power should be allowed to prevail.

Cooter and Siegel’s approach would lead to broad interpretations of congressional power in some areas, and relatively narrow ones in others. Currently, the Supreme Court interprets the power to regulate interstate Commerce in a way that gives Congress nearly unlimited power to regulate “economic activity,” while restricting its authority over “noneconomic” matters. Cooter and Siegel correctly point out that some forms of economic activity do not raise any interstate collective action problems, while some types of noneconomic activity do. With respect to the General Welfare Clause, their theory would uphold taxes and regulations that address collective action problems, while rejecting those that do not. In effect, they interpret the phrase “general welfare” as a synonym for “solving interstate collective action problems.”

The greatest strength of Cooter and Siegel’s analysis is that it accounts for the interconnections between the various congressional powers and expresses their underlying unity. As they point out, this has advantages under both originalist and nonoriginalist theories of interpretation. From an originalist standpoint, collective action federalism  dovetails with statements by the many Founders who argued that powers granted in Article I were intended to curb free-riding by state governments of the sort that had become a serious problem under the Articles of Confederation. For nonoriginalists, the theory has the virtue of taking account of modern economic analyses of federalism, most of which stress the key role of collective action problems.

Despite its impressive strengths, Cooter and Siegel’s analysis also has a few problems. It is far from clear that Article I really gives Congress unfettered authority to solve any and all collective action problems among the states. If that were the case, why would the Founders have bothered to carefully enumerate seventeen separate powers plus the Necessary and Proper Clause, instead of a single catch-all “Collective Action Clause?” To their credit, Cooter and Siegel foresaw this issue and tried to address it by arguing that the enumerated powers are not meant to be an exhaustive list, but an illustrative one. Yet it seems unlikely that a merely illustrative list would be so long and precisely detailed. Moreover, treating the list as illustrative renders the Necessary and Proper Clause superfluous. Under that approach, Congress would already have had the power to enact any measures “necessary” to solve any collective action problem, even if they were not specifically listed.

Second, Cooter and Siegel’s framework might actually negate certain specifically enumerated powers if it turns out that they are not needed to solve any collective action problems. Consider Congress’ power to  “establish post offices.” It is now clear that private firms such as Federal Express can deliver the mail just as effectively as the federal government, if not more so. And they can easily exclude would-be free riders who try to get away with not paying for postage. Does that render the US Postal Service unconstitutional?

Most importantly, Cooter and Siegel do not consider the possibility that the Constitution should be interpreted to curtail federal government policies that create “public bads,” as well as facilitate those that provide public goods. Just as Congress can solve collective action problems, it can also create them. To take one common case, it can enact special interest legislation that benefits small, well-organized groups at the expense of the general public. The repeal of such laws then becomes a nationwide collective action problem, one that the public often fails to solve because individual citizens and states have strong incentives to free ride on such matters. Curtailing such interest group legislation is one possible rationale for interpreting Congress’ enumerated powers relatively narrowly. Obviously, state governments often enact harmful special interest legislation of their own. But only Congress can impose such  a law on the entire nation at one fell swoop.

The famous 1942 case of Wickard v. Filburn illustrates this dilemma well. Wickard ruled that the interstate Commerce Clause authorized Congressional legislation that restricted wheat production even in cases where the wheat in question had never crossed state lines or been sold in any market. Cooter and Siegel endorse Wickard because the law in question solved a collective action problem among the states. Many state governments wanted to raise the price of wheat in order to assist farm interests. But none could do so individually, because of the risk that their efforts would be undercut by competition from other states.

At the same time, however, the law upheld in Wickard also created a severe collective action problem. By artificially raising the price of food in the midst of the Great Depression, it increased the suffering of consumers, particularly the poor – many of whom already found it difficult to purchase adequate amounts of food. Because consumers faced severe collective action costs and in many cases did not even realize that the new law had harmed them (voter knowledge of the effects of federal policy is itself a nationwide public good), they were not able to mobilize against it effectively. Wheat production restrictions that were a public good for farm states turned out to be a public bad for consumers and also for nonagricultural states whose economies were damaged by the price increases.

Cooter and Siegel rightly argue that  “[a] federal constitution ideally gives the central and state governments the power to do what each does best.” But a federal constitution must also protect against the dangers posed by both state and federal power. A powerful central government is often “best” at solving national collective action problems. But it is also often the “best” at creating them. State governments acting on their own could never have established a nationwide wheat cartel that victimized poor consumers for the benefit of politically powerful farm interests. A more comprehensive collective action approach to constitutional federalism must consider both sides of this dilemma.

Despite these reservations, Cooter and Siegel’s work is a major contribution to the debate over federalism, and helps set the agenda for future scholarship. It is hardly fair to ask any one article to do more. Future writers will need to more fully consider the extent to which collective action theory sheds light on the appropriate scope of specific federal powers. They should also take due account of the danger posed by federally mandated “public bads.”

Paul Horwitz

At the AALS conference this year, I was stung by a criticism a friend launched at Jotwell.  Our mission, of course, is to bring the attention of busy readers to articles that the editors think are well worth the time.  Well and good—but, this critic observed, most Jotwell reviewers pick articles they not only like, but agree with.  They amount to statements that an article is good because it agrees with the reviewer’s own priors.

This is a natural human tendency, of course, but it’s still an apt criticism.  A journal devoted to “Things We Like (Lots)” will be more interesting if the “Thing We Like” turns out to be something other than “Myself.”  Suitably chastened, I have found my work for Jotwell significantly hampered.  I would hate to be accused of writing these reviews as a form of amour propre.  Vast numbers of articles that I have enjoyed in recent weeks have been rejected as review subjects because they have the unfortunate tendency to conform to my own (utterly sound) views on constitutional law.  I have been searching for just the right piece: one that is enjoyable, interesting, and wrong.  Thankfully, Michael Stokes Paulsen has come to my rescue.

Paulsen’s short and biting piece, Our Perfect, Perfect Constitution, is a model of its genre: constitutional scholarship as satire.  (It is quite possible that most constitutional scholarship falls into this genre, although usually unwittingly.)  Paulsen writes that he, like most constitutional scholars, has fallen into “a peculiar and aggressive strain of Stockholm Syndrome.”  (P. 1.)  After decades of criticizing the work of the courts, he writes, “I have, finally, succumbed.  I now believe that everything in the U.S. Constitution is perfect.  More than that, I have come around to the understanding that every Supreme Court interpretation of the Constitution is perfect as well.”  (P. 1.)  His job, then, is not to rewrite the Constitution as such, but to “update” it “to reflect, perfectly, the Supreme Court’s perfect interpretations of it.”  (P. 1.)  And so he does, in what he labels a “pocket part” that includes “not only what the Constitution says but also what it really means” according to the Supreme Court. (P. 1.)

Paulsen’s conforming amendments are generally well-chosen and amusing, if a little sour.  Here are some examples.  He writes: “Article I, Section 1, Clause 1 is amended to delete the words ‘herein granted.’  It shall hereafter read: “All legislative powers shall be vested in a Congress of the United States.”  (P. 2.)  He adds: “The Tenth Article of Amendment to this Constitution is repealed.”  (P. 2.)  And: “The doctrine of stare decisis being fundamental to the rule of law, to public perceptions of the integrity of the Supreme Court, and to stability, predictability and reliability, [the] Supreme Court shall always adhere to its prior constitutional decisions, except when it decides not to do so.”  (P. 5.)  He clarifies the Free Exercise Clause: “Government may destroy Native American traditional religious holy sites in America, without thereby burdening the free exercise of site-specific Native American religious observance, because we stole their land fair and square.”  (P. 7.)  And the Establishment Clause: “This Constitution shall be construed to forbid the display on government property of Christmas nativity scene displays depicting the birth of Jesus, unless the display includes elves and a talking wishing well.”  (P. 8.)

Constitutional scholars and law students alike will recognize these and other examples, which of course are not so much a list of amendments as a bill of particulars.  Like many constitutional law teachers, I devote at least one class early in the semester to a detailed examination of the text of the Constitution; and like most of my colleagues, I tell my students that this will be virtually the last time we devote much attention to the text, as opposed to the centuries of glosses the Supreme Court has put on the text.  Paulsen’s short article is a lovely illustration of this phenomenon.  It would be excellent assigned reading at the end of the semester, to remind students (and professors) of just how much of their time has been devoted to the Supreme Court Reports, and how little to the constitutional text itself.  The pungency with which Paulsen’s satire offers this reminder is ample reason to recommend it.

That’s not to say I agree with it.  In demonstrating how little the Constitution, as we understand it today, has to do with what he apparently sees as its barer and simpler meaning, Paulsen evidently means to suggest to readers that the only question left is whether to laugh or cry.  I don’t see why either is required.  One hardly need believe that either the Constitution or the Supreme Court’s glosses on it are perfect to think it unexceptional, even banal, that the document must be interpreted, and that those interpretations will involve a mix of history, tradition, policy, and politics.  Only a naïf would be shocked—shocked!—to learn that constitutional law, like war, is politics by other means.  The voice of the naïf—Paulsen’s voice, in this piece—is, of course, the voice of satire.  But satire is the beginning of wisdom, not its end.

And at times it is difficult to discern what lies beneath the satire.  If ours is neither a “perfect” nor a “perfect, perfect Constitution,” what does Paulsen think the proper interpretation of the text demands?  It is, as far as I can tell, sometimes textualist, sometimes originalist, sometimes policy-driven, and sometimes none of the above. Paulsen mocks the Supreme Court’s decision in Employment Division v. Smith for permitting laws penalizing the exercise of religion provided that “they are cast in facially neutral terms”—a criticism I share—but without demonstrating that the Free Exercise Clause means, or is meant to mean, something else.  He derides free speech jurisprudence for protecting flag burning while permitting the enjoining of protests outside abortion clinics, but doesn’t say which understanding is better as a matter of text or history.  He criticizes the Supreme Court’s Equal Protection Clause jurisprudence for not categorically banning race-based distinctions, but without any acknowledgment of the historical pedigree supporting ameliorative race-based distinctions.  He thinks the Court is wrong not to enforce broad semi-textual postulates like those of limited and enumerated congressional power and reserved state power, but equally wrong to enforce broad semi-textual postulates like “liberty.”  And he is selective in his examples.  A satire on constitutional interpretation that devotes hundreds of words to abortion and not one to the Eleventh Amendment is an oddly unbalanced one.

I am struck by one last irony.  The view implied in this satirical piece seems to be that the Supreme Court, with our complicity, has rendered our Constitution ridiculous by offering endless glosses intended to make it “perfect,” when we could have either remained loyal to the text or amended it by duly authorized means.  But Paulsen has written elsewhere that the Constitution ought to be interpreted according to a “meta-rule of construction,” vested in the Executive Branch with some judicial oversight, that is intended to preserve “the nation whose Constitution it is, for the sake of preserving constitutional government over the long haul, even at the expense of specific constitutional provisions.”  Michael Stokes Paulson, The Constitution of Necessity, 79 Notre Dame L. Rev. 1257, 1257-58 (2004). There “simply must,” he has written, “be power in the national government to preserve the constitutional order; it is inconceivable that the Framers would have neglected such considerations.”  Id. (Fans of The Princess Bride will doubtless remember what was said there about the word “inconceivable.”)  So it is apparently ridiculous to think our Constitution is perfect, except when it isn’t; ridiculous to think we couldn’t use Article V to improve the Constitution, except when we needn’t bother; and ridiculous to give one constitutional actor primary responsibility for seeing to the Constitution’s perfectability, unless that actor is the President.  Like most of us, Paulsen hates “perfect” constitutions—sometimes.

Don’t get me wrong: I do like this article.  I’m grateful to Paulsen for a witty, if bitter, reminder of just how much of a potential gulf there is between our Constitution and our constitutional law, and for the reminder that whatever else we might call this process, “perfect” is the wrong word.  I’m doubly grateful to him for helping Jotwell to stymie its critics.  It is possible to like an article while thinking it is wrong—lots.