David Landau, Legal Pragmatism and Comparative Constitutional Law
, in Elgar Handbook on Comparative Constitutional Theory
(forthcoming 2018), available at SSRN
Law is a practical field. It resolves concrete disputes. Constitutional law, however, is often thought of as more theoretical than practical. For example, a common current debate in constitutional interpretation is between originalism and living constitutionalism. Both have been advocated and criticized to death. Thus, Thomas Colby and Peter Smith have argued that originalism does not consist of one overarching theory, and that it leaves many questions unanswered. Self-proclaimed originalists disagree on some major issues and acknowledge that courts must often “construct” the right answers. But William van Alstyne has emphasized that living constitutionalists also have “clashing visions.”
It is therefore a breath of fresh air to read David Landau’s forthcoming book chapter, “Legal Pragmatism and Comparative Constitutional Law.” Eschewing these sorts of rehearsed debates between theories that each contain their own brand of formalism, Landau argues that legal pragmatism is an especially useful approach to interpreting the United States Constitution. It requires judges to acknowledge the indeterminacy of constitutional interpretation, to appreciate the importance of focusing on the detailed factual, empirical, and other contextual elements of the constitutional issues presented, and to achieve the best result possible using the toolkit provided by the law, and other “eclectic” criteria. Landau also shows that pragmatism is useful in comparative constitutional law, rather than seeing it as a uniquely American approach.
Landau takes on the unenviable task of defining legal pragmatism. He acknowledges that no formalistic legal theories can provide a single right answer to constitutional questions. Originalism simply leaves open too many questions. It is also arguably wrong in many cases. For example, and despite arguments to the contrary, backwards-looking originalism cannot really support the result in Brown v. Board of Legal Education, 347 U.S. 483 (1954), or the idea that the Equal Protection Clause provides special legal protection to women. But Landau also says that the liberal legal philosopher Ronald Dworkin’s judge, Hercules, has an impossible task. He could have added that Dworkin’s solution is inevitably and conveniently politically liberal. And with entrants to the field like Jack Balkin and his living originalism, we now have even more varied results to contend with under the general umbrella of “originalism.”
Landau asserts that both originalists and Dworkinian believers in liberal reasoning to “right answers” pretend to be value-neutral when they are not. Moreover, a Justice’s perspective inevitably influences his or her rulings. Instead of abstract neutrality, Landau contends that constitutional interpretation is about the narrower task of “problem solving,” which is why the specific facts and context of cases, including empirical data and “other forms of knowledge,” are so important.
Landau admits that “formalist consistency” is useful but argues that the law has other ends. Legal pragmatism employs a “more inductive” analysis than the deductive syllogisms of formalism. Thus, pragmatism often involves “balancing” the competing interests at stake, such as liberty and security, which also means fully acknowledging and weighing their relative importance. Relying on the pragmatic analysis of Daniel Farber and Suzanna Sherry, Landau shows how they praise Justice O’Connor’s opinion in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), as drawing this balance by noting the individual’s rights as well as competing national security interests. This pragmatic approach, Landau contends, helps us see the instrumental value of law to the present, rather than honoring “the dead hand” of the past as a goal in itself.
Perhaps the most impressive part of Landau’s short chapter is its brief yet sophisticated response to likely criticisms. Critics of Judge Richard Posner’s pragmatism, with its emphasis on “common sense,” compare it to a Rorschach test. Landau retorts that judicial subjectivity is present in any application of an overarching theory as well, given the inevitable biases of those applying such a theory. At least pragmatism addresses all of the possible facts and arguments from both sides, and pragmatist judges explain why they have chosen one side over the other. It’s a choice, not a foregone conclusion. Similarly, he addresses the concern that judges are not trained to use empirical data or other non-formalist legal criteria, and so are ill-suited to be skillful pragmatists. Landau admits that judges are imperfect, but contends that they must consider all of the factors relevant to the best result. And perhaps judges—and the lawyers who argue their cases before the courts—can be trained in the supposedly eclectic fields of knowledge and analysis that are most common and relevant in resolving legal disputes.
It has been argued that pragmatism is inevitably conservative, since it would balance individual rights against state interests rather than enshrine them or treat them as trumps. Landau responds that this is not at all inevitable, as shown by liberal pragmatists like Farber and Sherry (or, for that matter, the later decisions of Judge Posner himself). Nor is it sufficient to contend that pragmatism is an “unmoored” approach that fails to provide certainty; as Landau argues, that hardly distinguishes it from formalistic approaches, with their false certainty in the abstract and messy results in reality. Law, he writes, “can be highly open-textured and eclectic without abandoning constitutional principle, even in paradigm shifting cases.”
Finally and intriguingly, Landau argues that pragmatism should be—and is—used abroad, not just in the United States. He questions Judge Posner’s suggestion that there is a uniquely American essence to pragmatism. The old and vague language of the United States Constitution, after all, may make it more reasonable to turn to formalism to bring some greater degree of certainty to its meaning and application. By contrast, many nations, including a number in the global South, have “transformative” constitutions that with thicker and more detailed content than that of the United States Constitution. This thick, transformative quality makes a flexible and pragmatic approach to interpreting such constitutions even more necessary, given both the numerous competing values found in such documents and the political vulnerabilities of the judicial branch in those countries.
A common method of constitutional analysis in many countries other than the United States is that of “proportionality,” a specific form of constitutional balancing. Landau argues that the proportionality approach has a pragmatic quality that is not radically different from the balancing tests that the United States Supreme Court used to apply quite frequently and still employs from time to time. Proportionality requires that judges be transparent in identifying and weighing the legal and factual issues at the heart of their decisions. The tradeoffs at stake in such cases must be confronted. He discusses several different theories of proportionality that courts abroad have advocated, especially those of Robert Alexy. He suggests out that even Alexy could benefit from looking at more data in his analysis of certain problems.
From Landau’s useful perspective, proportionality has a pragmatic core that “forces judges to think through the systematic consequences of judicial decision making” and thus avoid “blind spots.” A court, for instance, that is tasked by its country’s constitution with the implementation of socio-economic rights must necessarily acknowledge and address the tradeoffs that are inevitably involved in doing so. In the end, he correctly points out that “pragmatic arguments have tended to become significant in different constitutional cultures.” Far from being an example of American exceptionalism, constitutional pragmatism is not only suitable for foreign export, but may be a constitutional method that has achieved greater success beyond our shores.
Professor Whitman – without doubt a leader in the field of comparative law – manifestly wishes he hadn’t learned what he’s learned:
Awful as it may be to contemplate, but the reality is that the Nazis took a sustained, significant, and sometimes even eager interest in the American example in race law. … In fact, … it was the most radical Nazis who pushed most energetically for the exploitation of American models. Nazi references to American law were neither few nor fleeting…. Nor, importantly, was it only, or even primarily, the Jim Crow South that attracted Nazi lawyers. … Their America was not just the South, it was a racist America writ much larger. (Pp. 4-5.)
American immigration and naturalization laws, … culminating in the Immigration Act of 1924, conditioned entry into the United States on race-based tables of “national origins.” It was America’s race-based immigration law that Hitler praised in Mein Kampf … and leading Nazi legal thinkers did the same after him, repeatedly and volubly. The United States also stood at the forefront in the creation of forms of de jour and de facto second-class citizenships for blacks, Filipinos, Chinese, and others; this too was was of great interest to the Nazis, engaged as they were in creating their own forms of second-class citizenship for Germany’s Jews. … America was a beacon of anti-miscegenation law, with thirty different state regimes – many of them outside the South, and all of them … carefully studied, catalogued, and debated by Nazi lawyers. There were no other models for miscegenation legislation that the Nazis could find in the world…. (P. 12.)
“None of this is entirely easy to talk about.” (P. 14.)
Whitman carefully details German use of American “models.” He finds “direct American influence” in connection with “the criminalization of racially mixed marriage.” (P. 79.) With regard to immigration and citizenship laws “the American example served not so much as a direct template but as welcome evidence.” (P. 71.)
American law offered the Nazis something that matters a great deal to modern lawyers: it offered them confirmation that the winds of history were blowing in their direction. Their America was what Hitler described it to be: a dynamic country whose race consciousness had stirred the first substantial moves toward the sort of race order that it was Germany’s mission to bring to full fruition. (Pp. 71-2.)
“[H]ow did it come to pass that America produced law that seemed intriguing and attractive to Nazis?” (P. 136.) Professor Whitman looks very closely at a June 5, 1934 meeting of the German commission on criminal law reform considering whether “mixed marriages” (here Jew and non-Jew) “should be criminalized.” (P. 95.) Conservative jurists observed that it “was a fundamental principle of traditional German law that criminal law required clear and unambiguous concepts: if judges were permitted to convict on the basis of vague concepts, the core requirements of the rule of law would not be met.” (P. 105.) But there was, it seemed, no “clearly delineated and scientifically acceptable definition of who counted as a racial Jew.” (P. 105.) Committed Nazis contended, however, that “American law … demonstrated that it was perfectly possible to have racist legislation even if it was technically infeasible to come up with a scientifically satisfactory definition of race.” The problem at hand might be met by a “purely ‘primitive’ and ‘political’ response,” as in the United States. (P. 106.) “[I]t was possible to manage a functioning legal system without the sorts of clear concepts German lawyers cherished.” (P. 107.) “American judges had no trouble applying racist law despite its fuzzy concepts.” (P. 108.)
Whitman concludes – not just on the basis of this one debate – that “Nazi law was marked by a strong commitment to what Americans call ‘Legal Realism,’ the style of legal scholarship that also dominated in New Deal America.” (P. 115.)
Nazi law … was not a crass form of legal positivism, reducing the law to a duty of obedience to the command of the superiors. Nazi law was law that was liberated from the juristic past – it was law that would free the judges, legislators, and party bosses of Nazi Germany from the shackles of inherited concepts of justice, allowing them to “work toward” the realization of the racist goals of the regime…. (P. 152.)
So too American Legal Realism, he proposes: “long … described as one of the great products of an American pragmatic style, ready to tackle social problems in a can-do spirit and displaying a healthy resistance to dogmatism.” (P. 153.) Whitman notes that in 1934 Karl Llewellyn was told Germans regarded him “’as a true Nazi, fit to be amalgamated in the lifeblood of the new Reich.’” (P. 155.) (Llewellyn was enraged.) “What attracted Nazi lawyers was not just American racism but American legal culture….” (P. 146.) American law, we need to remember, is not without risk. If “the traditions of the law do indeed have little power to ride herd on the demands of the politicians, … when the politics is bad, the law can be very bad indeed.” (P. 159.) A predilection to renvoi, a felt need to learn how our approaches work out when put to use elsewhere – “[t]his too has to be part of our national narrative.” (P. 161.)* * *The Nazi legal thinkers, interestingly, appear within Whitman’s study to have learned another lesson from their American studies that Professor Whitman notes but does not give much direct attention. He stresses that the American racial order was not simply an artifact of the Civil War, white supremacy not peculiarly a southern phenomenon, rather nationally manifest. But German analysts, he shows us even so, were acutely aware in particular of recurring attention-getting, often publicly staged lynchings of mainly African Americans. This was a practice (we know) flowering in parallel with emerging white supremacy following on often-enough successful anti-reconstruction insurgency. It was nationally evident, but also manifestly regionally-marked too. Nazi jurists saw structural parallels with anti-Semitic street violence accompanying their own rise to power, violence persisting(at least early on) after Hitler’s ascendancy. “’What is lynch justice, if not the natural resistance of the Volk to an alien race that is attempting to gain the other hand?’” (P. 65.) In Germany, though, popular violence (even if anti-Semitic) could not be squared with the premises of the larger Nazi order.
[T]he individual actions” reflected a breakdown in the central party control of affairs that was always integral to the Nazi ambitions. The Nazis favored official, orderly, and properly supervised state-sponsored persecution, not street-level lynchings or “actions” incited by low-level party members. … [¶] It was such concerns about the dangers of German street violence that led to the promulgation of the Citizenship Law and Blood Law at Nuremberg. Concerned that the “National Revolution” might slip out of control, the party set out to calm matters by creating “unambiguous laws” that would put the business of persecution securely in the hands of the state. (Pp. 82-83.)
This “efficient state apparatus” (P. 145.), alongside its “open system of racist citizenship,” (P. 70.) the Nazis thought, was quite different from the American institutional set up. “Americans had to work around the requirements of the Fourteenth Amendment, and more broadly around their announced traditions of equality; and in consequence their law was a law of covert devices and legal subterfuges.” (P. 70.) “[T]here was always a tension between two racial orders in America.” (P. 143.)
The Nazi jurists, it is not hard to recognize right away, picked out primary pieces of a structural difficulty in American constitutional law, a source of distinctive shape – if never exclusively. This difficulty emerges out of a series of originating juxtapositions – of slavery and its acknowledgement and protection in 1787, the eventual civil war, and subsequent efforts at reconstruction. But more pressingly, it traces to the fierce insurgency catching up the Fourteenth Amendment especially (and constitutional reconstruction generally), within a surprisingly short time pushing far out to the side federal constitutional understandings keyed to reconstruction, putting in place a competing regime of white supremacy, chiefly culturally installed, distinctly invigorated and re-affirmed (again, mainly independently of governments and courts) by recurring, prominent, if randomly scattered public exercises in open torture and showily brutal killings of African Americans. Much of the time overt American legal institutions treated this confounding constitution as irresistible fact, occasion for sometimes resigned, sometimes eager accommodation, attending instead, inter alia, to Fourteenth Amendment ideas not immediately pulled into the maelstrom.
Is racism in the United States — in the form of white supremacy — an ideology pointing to totalitarianism akin to Hitler’s anti-semitism? For Hannah Arendt, in The Origins of Totalitarianism, the key to ideology as engine of totalitarian elaboration was ruthless logic and not institutional layout: the logic of a first concern drives politics, becomes the context informing and informed by terror. The concern of white supremacy was white protection and its governing logic was segregation, as a means to protect whites from blacks (sometimes also blacks from whites). This form was infinitely elaborate, in principle addressed all interactions. It was therefore both totalizing and always at risk, inviting therefore a terror of fear and rage ever trigger-able, ubiquitous. The idea of overflowing or infilling terror, we may think, is counterpart to ever-refining, ever-elaborating logic. Within American white supremacy only (or almost only) African Americans had to treat lynching as an ever-present possibility. But grotesque public killings, tortures, dramatic confinements or other sharp hardships perhaps functioned to discipline the larger population too (even as it entertained them), to implicate all emotionally, to create the potential for crowd-raising, to make non-participation look like dissent. Lynchings and their deeply disturbing, manifestly excessive violence plainly worked to inform and propel a distinctive constitutional and political order. Grotesque deadly display declared victims to be living beings with no claims to sympathy (anything might be done to them), but at the same time the claim to sympathy is not entirely erased since the victims otherwise are often persons who live and work among and with their assailants. This tension was the work product of the killing exercise. The terror-constitution deployed terror aiming to minimize need for terrorist display, in this way giving force to white supremacy. Terrorist displays – for their audiences — prompted constitutional thinking: constitutional terror. …* * *What way out of hell?
Professor Whitman is right. White supremacy – its concatenations and interplays – reverberated nationally. He abstracts, however: the particulars of American constitutional sequences, formations, and dynamics are not, plainly, his principal subject. Whitman wants to introduce us to the Nazi jurists and their efforts – in this context, to underscore their American enthusiasms. He sees no need to stress where the Nazis were headed (whatever they thought circa 1934) – to Wannsee, to camp-building, to Hell (most of them anyway: we’re quite sure). He puts to the side American constitutional movements too. These developments were occasional, to be sure: invitations also, we know, to significant opposing moves and more legal rethinking. Even so…. Circa 1934, piece by piece reimaginings of courts as jurisdictional redoubts, as sites for legal resistance, were already emerging as adjudicative counters to white supremacist popular constitutionalism and its implementing atrocities. Subsequent constitutional generalizings of these efforts – re-imagining the Fourteenth Amendment as incorporating the Bill of Rights, for example – would work to marginalize prominent defeatist realisms, to introduce new institutional counters. Plessy’s sense of popular mores as intransigent no long occupied the field. Hirabayashi’s conclusion that hitherto-victimized “discrete and insular minorities” might consequently prove sufficiently dangerous to society at large to justify further repression disappeared from view – so too maybe, some especially pessimistic readings of Llewellyn’s idea of “The Constitution as an Institution.”
A little later on, there would also be genuinely unanticipated emergences of African American cultural and political theaters of provocative nonviolence, movements and moments radically delegitimating and demoralizing white supremacy, occasions prompts to dramatic, important legal change. Walter Benjamin – dead in 1940, one among the millions of individuals Nazi jurists grouped as “problematic” – might well have noted, had he lived, the aptness of his startling term messianic: abrupt, unanticipated, important changes in direction, quickly accomplished and quickly concluded, surely affirmative. The map of these changes, he might have suggested, had come (freighted phrase) to refigure American constitutional culture.
Editor’s note: For another review of Hitler’s American Model, please see Anders Walker, Heil Jim Crow?, JOTWELL (March 8, 2018).
Most likely, Tisa Wenger’s new book Religious Freedom: The Contested History of an American Ideal is not on many law professors’ reading lists. But for anyone who is interested in issues of church and state, race, and American empire, it should be. Wenger has uncovered a powerful collection of movements, legal claims, and government interference in religious life in the early twentieth century. Many of us have either never heard of them, or have not understood how crucial they were to religion’s role in public policy and (occasionally) resistance to government power. This is not a book written by a legal expert: the terms “disestablishment” and “free exercise” don’t appear here. But it is full of constitutional claims and legal conflict, as well as a careful examination of the incentives for invoking religious freedom.
Religious Freedom is in some ways a continuation of Wenger’s first book. In We Have a Religion: The 1920s Pueblo Indian Dance Controversy and American Religious Freedom, Wenger argued that Pueblo Indians successfully deployed the language of religious freedom in the 1920s to protect their dances from white interference. In the process, Wenger maintained, they subtly changed how they understood their own practice, buying into a division between what counts as religious and what is secular.
Her new book extends that argument far more broadly, beginning with the effects of the Spanish American War of 1898 and continuing up to the outbreak of World War II. In this period, Wenger argues, “religious freedom talk” was deployed by “a dizzying array of people, on behalf of every imaginable practice and tradition.” (P. 12.) This talk was motivated by the importance that Americans themselves attached to the concept of religious freedom. And it reinforced the concept’s central assumption—that religion is a category, distinct from other aspects of individual and social life. To invoke religion, it must be separated from the secular, compartmentalizing human experience in ways that conform to dominant modes of American political culture.
Wenger uses these insights to examine how religious freedom talk was received, and who it helped. Key to her study are the ways that both race and empire affected how religious freedom was understood and who could use it to their advantage. Through beautifully written chapters that range from religious movements and their connection to struggles for independence in the Philippines, to Native American claims to self-governance and ritual practice on reservations, to Jewish rebranding from racial to religious identity (and becoming white in the process) and African-American attempts to escape oppressive racism through new religious identities, Wenger shows the power and limits of religious freedom talk. In each episode, race was central to the story.
Wenger concludes that a claim to religious identity achieved success in only two of the five major studies she undertakes in the book. First, U.S. Catholics “became fully American, fully modern, and racially white,” in contrast to Filipinos at the turn of the twentieth century. (P. 44.) Second, Jews effectively helped create and joined a tri-faith (Catholic, Protestant, Jew) coalition of white religious groups that “pushed race and class into the background”—a process that unfolded, in Wenger’s persuasive telling, in the 1930s, earlier than we had previously understood. (Pp. 172, 186.) For Native Americans, African-Americans, and Filipinos, however, racist assumptions and barriers set sharp boundaries around what religious freedom talk could achieve. As Wenger explains, the “expansion of whiteness” achieved by Catholics and Jews only exacerbated the problem for racial others. For Filipinos, their “weird shriekings” and “uncivilized tribes” justified attacks on indigenous customs that were framed in terms of progress toward greater moral development and “progress” toward civilized status. (Pp. 45, 93.) Among Native Americans, appeals to religious freedom channeled customary practices into forms that were legible to Christians, or into secular discourse. In either case, religious freedom talk “transformed” Native culture and belief, rather than protecting it. (Pp. 135, 142.) And for African-Americans, the “black-white racial binary” remained the primary identifier for the larger American society. Religious freedom talk “simply did not have the power to transcend the racialized terms of their oppression.” (P. 231.)
Wenger’s conclusion—that “the dominant strains of American religious freedom talk functioned to bolster racial discrimination and the civilizational hierarchies that sustained it”—is a sobering one. (P. 235.) Much of this history has flown underneath the radar, or has been obscured by the drumbeat of celebration of religious freedom as both a fact of American life and an unqualified good. Yet Wenger stresses that she does not believe that the ideal of religious freedom is unsalvageable. She acknowledges that defining religion limits its scope and places it in opposition to anything outside the lines drawn around what counts as religious. But she argues that “the potential shape of such definitions and oppositions are infinite in their possibilities.” (P. 239.) Despite the clear limits of resistance among racial minorities, that is, religious freedom talk did prove valuable in defending tradition and crafting identity. In Wenger’s view, this is grounds for hope. To this reader, it seems a slender reed. But it offers a useful contrast to the view of other major writers on the subject. In contrast to the noted law and religion scholar Winnifred Fallers Sullivan, for example, Wenger is not wholly pessimistic about the emancipatory potential of religious freedom talk.
Clearly, there is much to admire and learn from in Wenger’s book. Religious Freedom is a breakthrough study that productively “brings the state back in” to a monograph that is as grounded in religious studies as history. Wenger offers a reinterpretation that disturbs comfortable myths, even as she carefully parses the drawbacks (and a few benefits) of religious freedom talk for those groups that engage in it.
For legal academics, Wenger’s work opens up valuable new avenues of inquiry. To name just one, consider her argument that religious freedom talk obscured racial discord and discrimination. Even the inclusion of those formerly excluded from its reach—especially Catholics and Jews—did not prevent the privileging of religious over racial diversity. Consider the way that Bob Jones University v. United States (1983) sent shock waves around evangelical communities, when the Court held that in a conflict between religious freedom and racial equality, race won. After reading Wenger, the venerable history of precisely the opposite presumption is thrown into sharp relief, helping explain the shock, among those whose claims of religious freedom had sidelined race and class. These insights are highly relevant to an age in which religious freedom is once again claimed to support exemptions from anti-discrimination laws, as in the Masterpiece Cakeshop case currently pending in the Supreme Court.
Wenger shows clearly the costs of such strategies in the past. Equally important, she demonstrates in accessible ways how theories of the religious nature of “the secular” make a difference in how we understand the more subtle dimensions of a vaunted freedom, which traditionally has often served as an excuse or vehicle for government interference in the religious life of people of color.
Constitutional debates about gerrymandering often start from the premise that redistricting bodies may pursue overtly partisan goals. The Court’s fractured decision in Vieth v. Jubelirer offers support for this idea: Justice Scalia’s plurality opinion characterized “partisan districting” as a “lawful and common practice,” conceding only that an “excessive injection of politics is unlawful.” Justice Kennedy’s concurrence in the judgment similarly noted that “[a] determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied” and that any workable test for evaluating a partisan gerrymander must be capable of “measuring the particular burden a given partisan classification imposes on representational rights.” Even Justices Souter and Ginsburg, though rejecting the outcome in Vieth, were willing to concede that “some intent to gain political advantage is inescapable whenever political bodies devise a district plan” and that “the issue is one of how much is too much.” It is therefore not surprising that much of the post-Vieth commentary and case law has taken this point for granted: to the extent there might be a “judicially manageable standard” for adjudicating partisan gerrymandering claims, that standard must be capable of distinguishing between the merely partisan gerrymander (which the Constitution permits) and the excessively partisan gerrymander (which the Constitution condemns). Such a standard, in other words, must answer the question of “how much is too much.”
In their recent, respective articles, Professors Michael Kang and Justin Levitt resist this framing of the inquiry. Rather than attempt to ask “how much” partisanship is “too much” partisanship, each author would instead ask whether a particular type of partisanship has infected the redistricting process (K. 354; L. 2). Thus, as Levitt puts it, the law of partisan gerrymandering should make it clear that “public action undertaken in order to disfavor citizens because of their party affiliation is not merely a species of normal politics, but impermissible in any degree” (L. 37). And Kang similarly maintains that courts ought expressly to “identify partisan purpose as constitutionally illegitimate” (K. 373). Both authors thus propose inquiries that would treat the presence of forbidden partisan intent as an independently sufficient basis for invalidating a legislative redistricting scheme.
Kang and Levitt each make a persuasive case on behalf of an intent-centered approach. For one thing, as Levitt points out, a renewed focus on partisan intent would help to ease concerns about judicial manageability, by bringing the law of partisan redistricting within the courts’ institutional comfort zone. Judges probe for “suspect” and “invidious” purposes across a range of different doctrines, and, that task, though often difficult, is not typically regarded as inherently unmanageable. What is more, an intent-based focus may help courts sidestep some of the analytical challenges that presented cause for concern in Vieth—challenges such as developing “comprehensive and neutral principles for drawing electoral boundaries,” formulating “independent judicial standards for measuring a burden on representational rights,” and/or “demonstrat[ing] how an apportionment’s de facto incorporation of partisan classifications burdens rights of fair and effective representation.” Vieth, 541 U.S. at 306-12 (Kennedy, J., concurring in the judgment). Rather than place those questions at the forefront of the inquiry, an intent-based framework would “identify only a narrow range of considerations as out of bounds,” while at the same time remaining “appropriately agnostic about a wide range of representational preferences left to the political process” (L. 17).
In addition, an intent-based approach would help to align redistricting case law with other areas of doctrine in which overtly partisan motives are already disfavored. Kang offers an especially thorough formulation of this argument, highlighting several other domains in which courts have refused to validate intentionally partisan government actions. Kang discusses in detail: (1) a variety of First Amendment decisions in which the Court and individual Justices have condemned government action that discriminates on the basis of a speaker’s partisan affiliation (K. 376-83); (2) “second-order” redistricting cases (including one summarily affirmed by the Court), in which lower courts have prohibited legislatures from assigning even slightly overpopulated districts, otherwise permissible under the principle of Reynolds v. Sims, with partisan motives in mind (K. 384-90); (3) case law concerning the Article I Elections Clause’s delegation of power to prescribe the “times, places and manner” of congressional elections, a power—that though generally broad—does not permit states to “dictate electoral outcomes,” or “favor or disfavor a class of candidates” (K. 390-92 (quoting U.S. Term Limits Inc. v. Thornton)); and (4) a recent spate of lower-court decisions on voter-ID and other ballot-access restrictions, in which, Kang suggests, concerns about partisan motivation may be playing an unstated but significant role (K. 392-402). From this point of view, the Justices’ acquiescence to partisanship in redistricting decisions looks less like a reflection of and more like a “glaring exception” to a foundational constitutional norm (K. 376).
But more is at stake here than just doctrinal coherence. As both authors make clear, an intent-based approach would also effectuate a valuable ideal. Government action aimed at “punish[ing] or subordinat[ing] disfavored partisan affiliation” is a distinctly harmful phenomenon, different in kind from (and in fact directly threatening to) normal political competition for voters’ hearts and minds (L. 21). As Levitt puts the point:
That a Democratic or Republican legislator may vote on legislation with an eye toward improving her appeal in the next election is a very different matter than voting on legislation designed to improve her prospects by means other than appeal. Legislating with the intent to improve one’s political prospects by injuring Democrats or Republicans, because they are Democrats or Republicans, is a distinctly toxic form of partisanship, readily distinguishable from the rough-and-tumble of other political choices.
(L. 33). And Kang strikes a similar note: “The notion that the majority party in government can actively discriminate against the interests of the opposition violates a basic sensibility about democratic competition and fairness”; it is, in fact, “the definition of a process failure begging [for] judicial intervention” (K. 353). An intent-based test—in contrast to a “how much is too much” test—would refuse to countenance this sort of behavior as normal and to-be-expected.
Finally, Kang and Levitt both point out that a rule against partisan motives would have positive spillover effects within the law governing race-based gerrymandering claims (L. 55-56; K. 415-18). Where a redistricting body is accused of drawing maps in a racially discriminatory fashion, that body will sometimes respond with the odd defense that the map in fact serves partisan rather than race-based purposes. But if the Court were to make clear that partisanship does not generally qualify as a legitimate state interest, then the “party not race” defense would go away, and courts would no longer need to confront the difficult task of determining whether the true motivation behind a gerrymander was party-based or race-based. Instead, as Levitt notes, “redistricting bodies would be forced to justify lines based on publicly-permissible criteria—and, perhaps, even draw lines based on those criteria in the first instance” (L. 57).
Neither author promises a panacea. There is, for one thing, the problem of implementation. Simple as an intent-based prohibition may be to state in the abstract, judges still must figure out how to effectuate that prohibition on the ground. Kang and Levitt both sketch out potential doctrinal frameworks, but both authors acknowledge that additional questions remain. If, for instance, judges were permitted to infer illicit intent from the presence of egregiously partisan effects (K. 358; L. 57), then those same judges would have to make some attempt at quantifying and drawing conclusions about the extent of a map’s partisan bias, thus confronting the same sorts of measurement and line-drawing problems about which some of the Justices fretted in Vieth. Similarly, if judges were permitted to infer partisan intent from an absence of legitimate government interests underlying a redistricting plan, then those same judges would need to say something about what sorts of interests do qualify as legitimate within the redistricting context (and thus, in turn, engage with thorny, big-picture questions about representative government and democratic fairness). These problems don’t strike me as insuperable, and they do not necessarily undermine the suggestion that an intent-based test would prove relatively more administrable than the approach envisioned in Vieth. But the devil is in the details, and working through those details will not always be smooth sailing.
In addition, an intent-based approach may be susceptible to evasion and manipulation. Forbidden intent will often be difficult to prove, and that difficulty, as both authors acknowledge, would likely shield some badly-motivated gerrymanders from judicial invalidation. This outcome, moreover, would likely become increasingly frequent if an intent-based prohibition were openly adopted, as ill-intentioned redistricting bodies would grow more careful about and adept at covering their tracks. Again, the point should not be overstated: even if direct evidence of illicit partisanship proves difficult to uncover, circumstantial and indirect evidence might still sometimes suffice to show that the forbidden intent was there all along. Still, as Levitt himself concedes, if illicit intent is the relevant doctrinal lodestar, then “there will be circumstances in which invidious partisan intent exists in the world but cannot adequately be proven” (L. 52).
But even if the authors’ proposed re-framing of the inquiry does not produce a perfectly effective method of policing partisan gerrymandering, the re-framing itself would still yield positive consequences. Yes, redistricting bodies might respond to an intent-based test by suppressing their expressions of partisanship. But that itself would be a good thing, as a reduction in the broadcasting of partisan motivations might help to mitigate voter disillusionment with public institutions (L. 54). In addition, as Kang points out, a prohibition on overtly partisan gerrymanders might over time help legislators to “internalize the nonpartisanship norm to a degree and launder their internal thinking in the face of judicial stigmatization” (K. 412). This isn’t a totally pie-in-the-sky dream: Levitt highlights other areas of election regulation in which it is “strikingly rare to find public officials justifying their choices based on the raw desire to punish members of an opposing political party,” and he attributes that fact to a “deep—and hearteningly abiding—norm in most public spheres against tribal partisanship as a motivating force for action” (L. 45-46.). If that norm can prevail in other contexts, perhaps it might come to prevail within the redistricting context as well.
With the Court poised to revisit the issue of partisan gerrymandering in Gill v. Whitford (and perhaps a case coming out of Maryland as well), we soon will see whether the Justices show any interest in an intent-centered approach. (A major question mark is Justice Kennedy, who in LULAC v. Perry criticized a proposed intent-based test, but who in oral argument during Gill hinted that he might be willing to strike down a gerrymander for intent-related reasons.) But regardless of what happens this Term, these articles remain worth a read, as they offer up two especially informed, thoughtful, and analytically satisfying takes on a difficult constitutional problem. What is more, both articles provide a useful reminder that even justified cynicism about the way the political process works need not always translate into defeatism about what constitutional law forbids. Invidiously partisan motivations might always influence the redistricting process; but it does not follow that such motivations must therefore be regarded as constitutionally appropriate. Sometimes it is possible to be both realistic about what government officials are likely to do and idealistic about what the Constitution requires them to do. Kang and Levitt have convinced me that the law of partisan gerrymandering represents one area in which that disconnect can and should be maintained.
Cite as: Michael B. Coenen, Partisan Intent
, JOTWELL (December 21, 2017) (reviewing Michael S. Kang, Gerrymandering and the Constitutional Norm Against Government Partisanship
, 116 Mich. L. Rev.
351 (2017), and Justin Levitt, Intent Is Enough: Invidious Partisanship in Redistricting
, 59 Wm. & Mary L. Rev.
(forthcoming 2017), https://conlaw.jotwell.com/partisan-intent/
The article that made me think hardest about American constitutional law this year was not a work of legal scholarship. It was historian Rick Perlstein’s meditation on the making of modern American conservatism.
Perlstein begins his article by describing the “rough consensus” among historians about how the right became the dominant political force in American politics in the second half of the twentieth century. The story starts in 1955, when William F. Buckley Jr. founded the National Review to combat the decades-long marginalization of political conservatism. Buckley banished John Birchers, anti-Semites, and fanatical Ayn Randians and “fused the diverse schools of conservative thinking—traditionalist philosophers, militant anti-Communists, libertarian economists—into a coherent ideology.” Fueled by support from white suburban voters, the new political conservatives thrived. Crucial to their success—or so the story goes—was their denouncement of the “political surrealism of the paranoid fringe.” Particularly in the South, new movement conservatives sublimated the “frenetic, violent anxieties” aroused by race, and spoke instead of “stable housing values,” “quality local education,” and “colorblind constitutionalism.” Simply put, modern conservatism became a dominant force by eschewing what Richard Hofstadter called “the paranoid style in American politics.”
Politicians like John McCain, Jeb Bush, and Mitt Romney exemplify this account of modern conservatism (when Romney ventured into “fringe” territory by noting that no-one had ever asked to see his birth certificate, he almost immediately walked the comment back). The current President utterly confounds it. He routinely says precisely the kinds of things upon whose eschewal the success of the modern Republican Party is thought to depend. He dredges up all that modern conservatism is understood to have rejected, sublimated, or left behind—but instead of losing (like McCain, Bush, and Romney), he wins.
From the perspective of the conventional account of the modern right—to which Perlstein’s own scholarship contributed—Trump’s victory looks like an anomaly, a rupture, and a mistake. But, Perlstein argues, it is none of these things: It is the conventional narrative that is mistaken. On his revised account, the “paranoid fringe” was never merely a fringe. He points out, for instance, that the Black Legion, which was active in the industrial Midwest and considered itself an enforcement arm of the Klan, retained its power long after historians generally view Klan power as deteriorating. In 1936, by which point the Black Legion was suspected of dozens of assassinations, the FBI estimated its membership at 135,000, a figure that included a large number of government officials. A few years later, thousands of East Coasters packed into Madison Square Garden for a pro-Hitler rally; throughout World War II, the Christian Front carried out “small pogroms” in Northeastern cities, regularly assaulting Jews as officials looked the other way. In 1962, thousands of people in Southern California wrote fearful letters to their one of their representatives about an imminent invasion of San Diego by Chinese commandos who had been training in Mexico. The common thread in these examples, and in more recent ones Perlstein discusses, is that what we think of as the far-right fringe is not as small and fringy as we generally assume.
There is no room here to discuss these examples or the others Perlstein cites; nor is there room to discuss the Trump family’s own involvement in this history. All I can do here is summarize Perlstein’s thesis, which is that the far right has not been as thinly populated or distant from the American mainstream over the last three-quarters of a century as we commonly suppose. Perlstein argues that historians (including himself) have overlooked or downplayed evidence of the mainstream nature of far-right ideology. They have assumed that the “polite” conservative tradition—the one associated with William F. Buckley, Jr.—was the dominant force in the rise of the political right and that, since the 1950s, racist and anti-immigrant ideologies have languished on the outer fringes of the right. But, Perlstein argues, that polite tradition may not have been the only or even the primary driving force in the rise of the right; the real oomph, at least in terms of numbers, may have come from a less reconstructed force.
If Perlstein is even partly correct, his article raises interesting questions about constitutional change. In the past decade or so, many scholars have embraced what is known as popular or democratic constitutionalism—various models of constitutional change that focus on how social movements influence and transform constitutional meaning. These models differ, but they all rest on a sophisticated understanding of the relationship between law and politics: between the constitutional visions that political activists and political leaders put forward and the constitutional change that judges, appointed by those leaders and attuned in various ways to social movement activism, then effectuate with their decisions.
Perlstein’s article raises a number of important questions about how we should understand this law-and-politics relationship in the context of modern conservatism. If the conservative political movement that has dominated national politics since the late 1970s gained a significant part of its electoral power from the far right, what are the implications of this for how we ought to understand the constitutional politics this movement constructed? What does it mean for how we ought to understand the law-and-politics relationship itself? Academics are accustomed to the mode of conservatism on display in decisions like Milliken v. Bradley, Washington v. Davis, Parents Involved in Community Schools v. Seattle School District No. 1, and Shelby County v. Holder: the language is impassive, it embraces values like fairness, neutrality, and colorblindness; it is all about ending discrimination. Judges appointed by modern Republican leaders talk this way, and with some exceptions, those leaders talk this way as well. But what if those leaders—and by extension, those judges—got where they are in no small part through the support of the far right? Would that affect the meaning of what those leaders and judges do? Would that in any way influence our understanding of the nature of their decisions? Would it (or should it) alter the way we think about the constitutional change this movement has wrought? Regardless of whether historians ultimately embrace Perlstein’s thesis, his provocative article raises profound and unresolved questions about how we think about the nature of constitutional change.
Nelson Tebbe’s aspiration is nothing less than teaching us all to think more clearly and coherently about issues of marriage equality and religious freedom. For anyone paying attention, this bandwidth of legal disputes is white hot. And it is rare to find such a thoughtful voice on these questions, which keep coming at us but are rarely dealt with as skillfully and thoughtfully as in Tebbe’s work. Just last June, for example, the United States Supreme Court took cert on a case from Colorado, involving a wedding cake baker who says his expressive voice is implicated in his work. His religious beliefs mean that he cannot participate in making the cake for a same-sex couple. The baker is represented by the conservative Alliance Defense Fund and the ACLU represents the couple.
Tebbe’s book, although published before the case made it up to the Supreme Court, tells us how he would like us to think about the outcome. In public accommodations, such as businesses that are open to the public, the law does not force speech when it orders such a business to comply with non-discrimination mandates. Instead, we should recognize that by opening their doors to the public, the owners of Masterpiece Cakeshop have taken a voluntary step into society. Particularly with questions of religious freedom and racial discrimination, we have a strong background of past engagement with analogous issues. We also have deep legal and social commitments to treating customers equally, without reference to race, religion, national origin, marital status, and now, sexual orientation.
Since Obergefell v. Hodges was decided in 2015, such issues have become a lightning rod. Photographers, florists, and other wedding vendors are part of an enormous American wedding industry, but they want us to focus on their artisanship—most are small, local, and very personal. Their claims are sincere, and they feel threatened. On the other side, couples are sent unwelcome messages of condemnation, and may be imposed upon in other ways as well, when all they wanted was a happy wedding.
This is where Tebbe finds the space to be moderate, reasoned, and respectful—of both sides. One of the most admirable aspects of his work is his deployment of a carefully calibrated method for discussing what otherwise look like intractable disputes. This is where the interdisciplinary quality of the work is most evident, and most welcome. Tebbe deploys “social coherence” theory (ok, perhaps not the best label for a society that is anything but coherent right now, but work with us here), a political model that Tebbe has explored in past work. But the advantage of a book-length treatment is obvious: Tebbe’s focus both on consistency of relevant outcomes in the past, and the underlying principles that inform and give moral purchase to past results, yields a nuanced and useful set of ideas for navigating troubled waters. This is not one of those books that reproduces past work with little attention to the arc of a monograph. Instead, Tebbe has dug in and worked hard to make his own work fit the model he argues for: he is reasoned, careful, gracious, and consistent.
One of the most admirable aspects of Tebbe’s book is the way that he integrates his work in political theory with the nitty gritty of recent cases and legal doctrine. He has a strong perspective grounded in theory, that is, but he also brings a lawyer’s eye to doctrine crunching. Add to this his accessible prose, welcoming posture, and detailed explanations—Tebbe reminds this reader in some ways of Chris Eisgruber and Larry Sager’s 2007 book Religious Freedom and the Constitution, also published by Harvard University Press. He brings the same collegial and wide-ranging ethic to the task, although his approach is distinct.
It is relatively easy to outline Tebbe’s formula, but doing justice to the multiple ways he applies his method to actual cases and hypothetical situations is more difficult. The challenge even of summarizing the work demonstrates how careful, even subtle, the uses of social coherence theory are in this book. He begins by talking about what counts as coherence and then connecting those attributes to larger principles. The attributes include mutual reinforcement of patterns of behavior, in ways that support conclusions as warranted by past practice (without necessarily claiming that a particular conclusion is either true or moral in a philosophical sense), and dynamism, which means that all conclusions are subject to revision in light of new information. Also important are qualities that connect this approach to abstraction, meaning that reasons justifying a conclusion may be concrete or derived from principle. Tebbe also acknowledges that his goals are aspirational, which means that we may and should strive to achieve coherence, but that it will likely remain elusive, imperfectly achieved, and/or impermanent.
This approach is particularly useful to law and legal analysis, Tebbe argues, and dovetails neatly with fundamental legal principles, including avoiding harm to others, basic fairness, freedom of association, and government nonendorsement. Roughly half the book is taken up with getting us this far. This reader both had a strong grasp of the method and its underlying limits and virtues—but the payoff truly is in the third section of the book, called “applications.” Here he tackles four major problems for the law of church and state today.
The first is the topic we began with—public accommodations. I won’t belabor the fundamental points about speech and past practice, but do want to note that he also addresses the “wait and see” argument. To those who argue that we should give the market time to adjust to increasingly positive views of marriage equality, Tebbe (expanding on the work of Andrew Koppelman and Joseph Singer) responds that “strong and commonly accepted” reasons for allowing equal access to public accommodations are already in place, and should be respected in cases (such as those involving wedding vendors) that involve commercial enterprises. This would include adoption agencies, facilities routinely rented to the public, and would apply despite Religious Freedom Restoration Acts at the federal or state level. Tebbe readily concedes that after Burwell v. Hobby Lobby (2014) this is a live question, an intuition that is borne out by the Supreme Court’s current docket.
The second topic is equally difficult and hard fought. Teachers, coaches, voluntary Boy Scout troop leaders, even janitors, have all been subject to firing for violating purely religious standards in the workplace. As Tebbe points out, state and federal employment laws provide special exemptions for religious organizations. Freedom of association protects religious (and secular) groups, especially in the hiring of leaders, such as clergy or those formulating policy for the group. The Supreme Court case Hosanna-Tabor Evangelical Lutheran Church v. EEOC (2012) underscored the concern for freedom to select clergy. Tebbe cautions that ordinary employees, especially laypersons in relatively low-level jobs that do not materially affect policy or central values of an organization, can be harmed unduly when religious organizations are allowed to discriminate in favor of co-religionists under Title VII. And in an interesting twist, the central case in this area, Presiding Bishop of the Church of Jesus Christ of Latter Day Saints v. Amos (1987) comes from Salt Lake City, where in 2015 the “Utah Compromise” both enacted employment protection for LGBT workers, and entirely exempted religious organizations and the Boy Scouts, for which the Mormon Church is the single largest sponsor in the country. This widely heralded advance, Tebbe argues, came at a high price. And other similar proposals, he says, have been rightly criticized for extending unprecedented power to religious organizations to discriminate in hiring.
Third is public officials, and here Tebbe argues that—although religious exemptions for government actors are rare—they should be expanded in some situations. For example, consider Kim Davis, a Kentucky county clerk who refused to issue same-sex marriage licenses after Obergefell on religious grounds. Tebbe maintains that she should be allowed to benefit from a solution to her quandary designed by the Kentucky legislature. The state established a uniform marriage license for Kentucky, which associated the broader government, rather than the county clerk by name, with the endorsement of marriage equality. Tebbe argues that this solves the problem, although he concedes that his is a minority position. This reader began thinking he must be dead wrong, and that an oath to uphold the law means just that. But Tebbe’s careful distinction between the office and the office-holder was thought provoking in all the best ways.
Finally, Tebbe concludes with government funding. Here, too, he brings to bear a distinctive and steady voice, arguing that governments should be allowed to de-fund religious activity, even if it funds comparable secular endeavors. As he notes, concerns about tax exemption are everywhere among religious groups that object to marriage equality. Older caselaw, such as Bob Jones University v. United States (1983) and Locke v. Davey (2004) support Tebbe’s argument that even constitutionally protected activity can be defunded or discouraged (see abortion). But the more recent Trinity Lutheran Church of Columbia, Inc. v. Cromer (2017), released this summer after Tebbe’s book was published, cuts in the other direction. There the Court held that Missouri’s decision not to help a nursery school improve its playground because it was located on church property violated the free exercise rights of the church. In a telephone conversation, Tebbe called the case “regrettable,” maintaining that Missouri’s interest in pursuing the values of the establishment clause should be allowed, stressing that Justice Sonia Sotomayor (in dissent) had a better understanding of the law.
Thus one portion of Religious Freedom in an Egalitarian Age has already endured some buffeting. But the central point of the book is the key: Tebbe argues—repeatedly, convincingly, and with great respect for the many interests at stake in this highly-contested area of constitutional law—that reason, debate, moderation, and coherence are central to productive outcomes. He is right, and the field is better for his intervention.
Suppose the United States elected a president with authoritarian tendencies. Imagine that the president regularly attacked and undermined institutions and individuals that sought to hold his administration accountable for its actions. Assume, for purposes of the hypothetical, that members of the President’s party controlled both the House and the Senate and saw little partisan self-interest in checking the executive branch. Just pretend.
Under those circumstances, where else might we turn for help in ensuring that our government remains accountable to us? In The Special Value of Public Employee Speech, Heidi Kitrosser reminds us that “government employees are crucial safety valves for protecting the people from abuse and incompetence, given their unique access to information and to a range of avenues for transmitting the same.” More specifically, she points out that the everyday heroism of public employees includes
the simple acts of employees doing their jobs conscientiously and in accordance with the norms of their professions. When employees engage in such behavior – for instance, when government auditors honestly and competently investigate and report in a manner consistent with professional auditing standards – they help to maintain consistency between the functions the government purports to perform and those that it actually performs. In this sense, public employees are potential barriers against government deception. They can disrupt government efforts to have it both ways by purporting publicly to provide a service while distorting the nature of that service. When they do this through their speech acts—for example, by reporting the results of budgetary analyses or scientific studies—they engage in speech of substantial First Amendment value. (Pp. 302-303).
In Garcetti v. Ceballos, however, the Supreme Court interpreted the First Amendment to offer no protection for public employees’ truthful speech in a broad range of circumstances—including their truthful reports of governmental lies and other misconduct. Rejecting a First Amendment challenge by a prosecutor disciplined for writing an internal memo that criticized a police affidavit as including serious misrepresentations, the Court held by a 5-4 vote that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” In concluding that a government employer should remain free to assert “control over what the employer itself has commissioned or created,” the majority thus created a bright-line rule that treats public employees’ speech delivered pursuant to their official duties as speech that the government may restrain and punish without running afoul of the First Amendment.
As I have detailed elsewhere, lower courts have applied Garcetti’s bright-line rule to reject the First Amendment claims of a wide swath of government workers punished for reporting all sorts of government misconduct. Examples include financial managers fired after reporting public agencies’ fiscal improprieties; an array of public employees terminated after reporting health and safety violations; public health care workers and public school teachers punished after expressing concerns about patient care and student welfare; and police officers discharged after reporting government officials’ illegal or unethical behavior. As Seventh Circuit Judge Ilana Diamond Rovner explained in one such case: “Detective Kolatski was performing his job admirably at the time of these events, and although his demotion for truthfully reporting allegations of misconduct may be morally repugnant, after Garcetti, it does not offend the First Amendment.”
Some lower courts have even understood Garcetti to mean that the First Amendment offers no protection to public employees punished for testifying truthfully about their on-the-job observations of government misconduct, because such testimony concerns information that they received pursuant to their official duties. The Eleventh Circuit, for example, applied Garcetti to conclude that the Constitution posed no obstacle to the termination of a state employee who testified under oath about his discovery that an Alabama state legislator on a state agency payroll had not been reporting for work. Fortunately, the Supreme Court reversed the lower court, holding in Lane v. Franks that the First Amendment “protects a public employee who provide[s] truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.” In other words, the Court held that Garcetti did not apply, even though the plaintiff’s testimony concerned information related to his public employment, because his ordinary job duties did not include sworn testimony.
In short, Garcetti slammed the door shut on the prospect of First Amendment protection for public employees’ speech pursuant to their official duties. Lane cracked that door a bit, recognizing that “speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.” Whether Lane signals any further limitation of Garcetti, however, remains unclear, as the Court noted that it did “not address in this case whether truthful sworn testimony would constitute citizen speech under Garcetti when given as part of a public employee’s ordinary job duties.” Incredibly, we don’t yet know whether the First Amendment protects law enforcement officers and government lawyers who testify truthfully about public corruption when it is their job to do so.
Kitrosser’s valuable article seeks to push the First Amendment door open still wider for public employees. She offers a road map for mitigating Garcetti’s damage by emphasizing the special value of public employee speech to democratic accountability. Here, Kitrosser is pragmatic but optimistic: “The hope is that Lane provides occasion to dig more deeply into both the special value of public employee speech and the government interests at issue and thus to rethink Garcetti entirely. More modestly, Lane can point the way to means by which Garcetti can be limited.”
Kitrosser urges the Court to revise and limit Garcetti to permit the government to discipline public employees for speech that they are hired to produce only when such discipline is based on the government’s genuine, rather than pretextual, assessment of that expression’s quality. Her proposal would protect the special value of public employee speech while recognizing and accommodating public employers’ compelling managerial needs, in that she seeks “not to second-guess supervisor assessments of work product quality, but to smoke out retaliation against work product speech for reasons other than quality”–e.g., public employee speech that discloses “inconvenient” facts or offers truthful but unwelcome analysis.
Most important, “in cases where employees were hired to render independent professional judgment, disappointment with those judgments, not because they reflect low quality, but because they are politically or personally inconvenient for employers, should not be deemed quality-based assessments.” As Kitrosser explains, the government engages in deception when it “hires climate scientists to make climate projections but insists that they alter their findings for political reasons as a condition of their continued employment.” The same would be true of labor economists hired by the government to report unemployment rates. It would apply as well to law enforcement officers hired to investigate, and lawyers hired to prosecute, government corruption.
Kitrosser also identifies more minor doctrinal adjustments as a “second-best, but perhaps more realistic near-term alternative” for limiting Garcetti’s reach. These include “carv[ing] out an exception to Garcetti, a presumption against its application, or at least a factor in weighting against its application whenever truthful reporting of corruption or serious governmental misconduct is at issue,” and “deem[ing] the fact that information was learned on the job irrelevant to this inquiry.” I’d add that legislatures also have an important role to play in enacting statutory protections for public employees who engage in such speech.
In this important article, Kitrosser reminds us that we lose something of great value when government workers can be, and are, fired for telling the truth about their jobs. That reminder is necessary now more than ever.
Ozan O. Varol’s article Structural Rights usefully mixes two aspects of constitutional law that teachers and authors, at least for pedagogical purposes, separate when organizing coverage of their subject. My casebook, for example, covers “structural” features of the United States Constitution, such as separation of powers and federalism, then proceeds to “rights” chapters dealing with, for example, due process and equal protection. Students typically find structural features more difficult and non-intuitive, while they are very comfortable with rights protections for individuals.
Of course, separation of powers and federalism are fairly commonly viewed as liberty-enhancing. The Framers initially thought a Bill of Rights unnecessary: governmental structural restrictions and competing government power centers, they thought, would prevent government oppression. Today, perhaps in part due to the “rights revolution” of the Warren Court, my generation typically views the Bill of Rights and section 1 of the Fourteenth Amendment as bulwarks of individual freedom, central and indispensable to our constitutional order. But the point of the Constitution as a whole was to enhance governance by “We the People.” The rights provisions, as Varol’s article elucidates powerfully, empower rather than merely protect “the People.” They frame and drive our governance structure.
This empowerment works two ways. First, rights empower governmental actors to act on behalf of the people. Congress may protect (but not restrict) free speech and freedom of religion, may grant (but not deny) due process, may enhance (but not undermine) equal protection. The President can enhance freedoms by exercising prosecutorial discretion, and can issue executive orders to expand rights (if those orders are consistent with Congress’ laws and/or have some basis in presidential powers). Further, executive agency interpretations of laws can expand the people’s rights. Lastly, judicial power is enormously enhanced by the existence of rights, for judges interpret the reach and enforcement mechanisms of those rights, sometimes overriding majoritarian decisions by Congress, the President, or the States.
Second, rights are structural bulwarks of our constitutional system of government by the people. Free speech and free press enhance vigorous debate over policy directions, voting protections allow the people to choose and fire their leaders, and equal protection helps avoid marginalization of minority groups in electoral and other processes. Jury trials, by guaranteeing ordinary citizens decision-making authority in criminal trials prosecuted by executive officers, keep government officials from having free rein to punish political enemies or attack those who claim corruption by government officials. Due process takes over as a catch-all even where specific constitutional provisions do not apply.
How about the Second Amendment? Varol argues that:
The “well regulated Militia” in the Second Amendment, characterized as “being necessary to the security of a free State,” invokes the idea of justified resistance against a tyrannical govern-ment. The reference to a “free State” is expressly structural and is considered “necessary” to protect popular sovereignty. Framed as such, the Second Amendment right to bear arms is closely connected to the First Amendment freedoms of assembly and petition. If a tyrannical government remains unresponsive to the people’s demands, expressed through petition and assembly, the people have the collective right to alter or abolish their government.
But the Supreme Court’s focus in Heller was not on the militia, and the purpose it stressed was “individual self-defense.” Perhaps Varol could have assessed the individual right to bear arms as contrasted with arms-bearing militias as a structural bulwark of our system. But what structure does that right support? If the right is to defend against oppression, it fits well into Varol’s framework, but if it is the “right of revolution,” it could destabilize order in our republic. Perhaps this structural observation would support the legality of limiting firearm ownership to “small arms,” in keeping with Heller’s interpretation of the scope of the Second Amendment.
In addition to observing and organizing a wide range of examples of rights which serve structural governing purposes, the article weaves in a bit of economic and political theory. Rights tend to align the agendas of officials with outcomes desired by their constituents and allow voters to “fire” ineffective or dishonest elected officials. Minority rights create constituencies who leverage rights affecting them disproportionately. This leverage in turn may move the broader polity to adopt policies the minorities desire. Examples include racial groups (the Civil Rights Act, the Voting Rights Act, and the Fair Housing Act), women (the Civil Rights Act again, the Violence Against Women Act, and the Fair Credit Reporting Act), and people with disabilities (the Americans with Disabilities Act). Such endowment effects are particularly difficult to dislodge, so these rights and the resulting political culture become self-reinforcing and stable, even if initially contested and contentious.
In short, Varol’s article is a welcome reminder that what we often think of as pure personal rights in fact suffuse not merely our popular culture but also our political institutions. The incentives of those who hold the levers of power in the United States are, through these rights, more closely aligned with the wishes of the people. These rights are structural features for maintaining and stabilizing our republic. They are critical components in maintaining the opening pledge of the Constitution’s commitment to “We the People.”
Nathan S. Chapman, Due Process Abroad
, U. of Ga. Legal Stud. Research Paper No. 2017-07
(2017), available at SSRN
Do the rights protected by the Constitution constrain United States government actions outside our borders, especially those directed at noncitizens? The longstanding debate over this question has heated up again in recent years. It is one of the issues raised by the litigation over Donald Trump’s travel ban executive order. It is also a key element of Hernandez v. Mesa, a case recently addressed by the Supreme Court that raises the question of whether the Fourth Amendment applies to a case where U.S. Border Patrol agents fatally shot a 15-year-old Mexican boy just across the border.
Nathan Chapman’s important new article on the application of the Due Process Clause of the Fifth Amendment abroad, is a timely and important contribution to this debate. It compiles extensive evidence indicating that the Clause was originally understood to constrain U.S. government actions outside our territory, regardless of whether the targets are American citizens or not. If so, it may be that other constitutional rights also apply in such situations.
Some scholars have argued that the Due Process Clause applies to U.S. government actions all over the world because the text is phrased in general terms, without territorial limitation. But Chapman is the first to systematically compile originalist evidence defending this position. He considers a variety of federal government law enforcement efforts beyond U.S. borders from the 1790s to the 1820s.
Most of these involved enforcement of federal laws authorized by Congress’s Article I power to “define and punish Piracies and Felonies committed on the high Seas.” They included efforts to suppress piracy and the slave trade, and catch violators of U.S. tariff and embargo policies. Some of these cases also came under Congress’ authority to “define and punish” violations of “the Law of Nations,” though Chapman’s analysis does not indicate any major distinctions in the way the two types of legislation were treated under the Due Process Clause.
Pirates may seem quaint or even romantic today. But in the eighteenth and early nineteenth centuries, they were a serious threat to American and European commerce. Suppressing them was a major objective of early American foreign policy. Yet, as Chapman shows, both Congress and the executive branch consistently concluded that pirates could not be detained and punished without being afforded due process of law, including a trial in a regularly constituted federal court. This was consistent with pre-revolutionary British practice, with the major exception of trials of suspected pirates who were American colonists. The latter were often tried in special vice-admiralty courts. Americans vehemently objected to this practice and sought to put an end to it.
The same was true of the procedures for detaining and trying suspected slave traders and smugglers. They too were afforded the protection of the Due Process Clause. Such prominent jurists and statesmen as Supreme Court Justice James Iredell, Albert Gallatin (a leading Jeffersonian voice on constitutional issues), and John Quincy Adams argued that this was required by the Constitution.
Importantly, these policies made no distinction between suspected pirates, smugglers, and slave traders who were foreign nationals and those who were American citizens. As President John Adams’ attorney general Charles Lee instructed in 1798, suspected pirates were to be tried in ordinary federal courts, “according to the law of the United States, without respect to the nation which each individual may belong, whether he be British, French, American, or of any other nation.” Similar principles applied to the seizure and condemnation of ships and property used by pirates and other criminals on the high seas.
Chapman shows that most of the contrary evidence cited by earlier scholars involved ships and prisoners taken in war or military operations, such as those against state-sponsored Barbary pirates. Just as we do today, Americans of the Founding era recognized that peacetime due process rules often do not apply in war.
While Chapman’s analysis is wide-ranging and compelling, I wonder if more could be done to consider alternative explanations for some of his findings. In some cases, for example, it is possible that U.S. officials were reluctant to detain or punish foreign citizens without due process for fear of alienating powerful European governments. The early United States was not the superpower of today, and sought to avoid the wrath of more potent states, particularly Britain and France. The latter might well retaliate for real and imagined abuses committed against their citizens. Still, this concern is partly obviated by the fact that many of the cases discussed by Chapman involved officials framing their concerns in explicitly constitutional terms.
At least for constitutional originalists, Chapman’s findings have substantial implications for the present day. The Due Process Clause indicates that the government may not deprive individuals of “life, liberty, or property, without due process of law.” A substantial range of federal government activities abroad do just that. As Chapman explains, they include extraterritorial kidnapping and detention of criminal suspects, shootings by law enforcement officers (including the one at issue in Hernandez v. Mesa), and searches and seizures of property abroad for the purposes of obtaining evidence for prosecution. Whether or not the Fourth Amendment or other parts of the Bill of Rights apply to these situations, they all involve the deprivation of “life, liberty, or property” without the process typically required inside the U.S.
Chapman’s findings also have potential implications for extraterritorial application of other individual rights outlined in the Constitution. Like the Due Process Clause, most are phrased in general terms, without any territorial limitations, or constraints based on the citizenship of the individuals targeted.
If the Due Process Clause applies to U.S. actions abroad, why not the First Amendment and other parts of the Bill of Rights? If Congress’s power to punish crimes on “the high seas” is constrained by individual rights, why not its power over immigration, its power to regulate international commerce, and so on?
The fact that pirates were violators of international, as well as American, law makes it all the more striking that they were nevertheless covered by the Due Process Clause. If even pirates were not beyond the reach of constitutional rights, it seems hard to argue that potential immigrants or foreign-based violators of purely American legislation should be.
Unlike the power to punish crimes on the high seas, federal power over immigration is not specifically enumerated in the Constitution. Such Founders as Thomas Jefferson and James Madison forcefully denied that Congress and the president had any general power to restrict peaceful migration, a view that ultimately prevailed in the struggle over the Alien and Sedition Acts of 1798. Chapman, in fact, briefly argues that the Due Process Clause restricts congressional power over immigration, preventing the federal government from stripping statutory immigration rights without due process.
If so, perhaps other constitutional rights restrict immigration policy, as well. If Congress cannot bar foreigners in ways that violate the Due Process Clause, perhaps it also cannot bar them on the basis of criteria that undermine First Amendment rights, such as freedom of speech, assembly, and religion.
Many object to such reasoning on the ground that the immigrants have no constitutional right to enter the United States in the first place. But, of course, suspected pirates had no constitutional right to engage in piracy, suspected smugglers had no right to smuggle, and so on. Still, they could not be targeted in ways that violated the Due Process Clause.
As I have pointed out elsewhere, there is no constitutional right to receive Social Security benefits. Yet it would surely be unconstitutional for the federal government to restrict them to people who practice a particular religion or refrain from criticizing the government. Similarly, it may be that potential immigrants cannot be barred for reasons that trench on other constitutional rights.
Chapman’s argument does not definitively resolve the issue of which constitutional rights apply extraterritorially. Perhaps some rights simply have a different status from the Due Process Clause. A few are explicitly limited to citizens, such as the Privileges and Immunities Clause of Article IV.
But Chapman’s analysis does undercut oft-made claims that the original meaning of the Constitution implicitly embodies a general principle under which constitutional rights only constrain government actions on American soil or only those that target American citizens. At least with respect to the Due Process Clause, that simply is not true.
As Chapman recognizes, originalism is far from the only available constitutional theory. Restrictions on extraterritorial application of the Due Process Clause can still be defended on “living constitution” grounds. Later in the nineteenth century, he notes, American courts and government officials began to do just that: “Americans, faced with the challenges and prospects of a far-flung and culturally pluralistic empire, to some extent embraced the imperial logic of the British constitution that they had once repudiated.”
Due Process Clause protections were often repudiated or watered down in cases dealing with immigrants, foreigners, Native Americans, and others not seen as fully American. Instead of defending these principles on the basis of text and history, judges and others appealed to the supposedly “inherent” powers of sovereign governments—the same theory ultimately used to justify “plenary” federal power over immigration. Such theories have major flaws from the standpoint of text and original meaning. But they can be defended on various other grounds.
Chapman’s compelling article does not definitively resolve the debate over extraterritorial application of constitutional rights generally, or even the Due Process Clause specifically. But it is a major step forward in the literature. Few if any issues in constitutional law are more timely and relevant.
In Expanding the Periphery and Threatening the Core, Morgan Weiland tells a story of how the First Amendment has slipped its moorings: how the Supreme Court, through its holdings in commercial speech and corporate campaign finance regulation cases, has decoupled the individual’s right to expression from the reasons for protecting that right; and how the libertarian turn in First Amendment theory, which devalues any interference with the flow of any information for any reason, has fused together protections for corporate and individual speech in a way that abandons First Amendment first principles. Weiland’s article also details the costs of First Amendment agnosticism—in a world where any regulation of speech affronts the informational rights of every listener, the State is powerless to distinguish between kinds of speakers or the quality of speech.
Weiland’s claim that First Amendment theory, properly oriented, should place primacy on listeners’ rights over the rights of speakers goes back to Justice White’s seminal line in 1967’s Red Lion that “it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount,” as well as to Jerome Barron’s work around the same time, which called for government interventions in the speech market because of its First Amendment-derived obligation to promote the public’s “adequate opportunity for discussion” of issues of public concern. Drawing upon the argument that expressive rights are functionally collective in nature, Weiland’s article makes an important contribution to First Amendment literature by detailing how far the modern Court has strayed from this baseline.
Though her article spends lots of time living in the lofty heights of free speech theory, Weiland cleverly boils down the change motivating First Amendment principle to a shift in the possessive. As noted above, in its Red Lion-era jurisprudence, the Court’s concern was with “listeners’ rights”—“listeners” being a stand-in for the public-at-large, with its concomitant interest in information as an instrument used for collectively constructed governance and society. Starting with its commercial speech cases in the 1970s, however, the Supreme Court’s discussions of the First Amendment’s theoretical underpinnings moved the apostrophe one letter to the left. Where before “listeners’ rights” in the speech context were previously conceived as an instrument for listeners to achieve collective self-determination, under the new libertarian tradition the “listener” is now a purely individualized conception where the right deserving of protection shields anything an individual listener might want to know from government interference. It’s thus the listener’s right to information, rather than listeners’ rights in the same, which drive First Amendment rules of decision.
Read this way, Weiland’s is a compelling story of how the smallest possible change in punctuation can sometimes flip meaning in the opposite direction. When reading the article, I was reminded of a similar story I once read about a misplaced comma in a King James Version of the Bible’s Luke 23:32. The passage, which details Jesus’ imminent crucifixion alongside two criminals, originally read “And there were also two other malefactors, led with him to be put to death,” instead of the intended “And there were also two other, malefactors, led with him to be put to death.” The mistake in the first version, by implying that Jesus had done evil (“malefactors” probably beginning as the Greek kaourgous, meaning “wrongdoer,” then as the Latin malefacere, meaning “to do evil,”), rendered the passage sacrilegious.
I have almost certainly just described a mistake. But the move from “listeners” to “listener’s” that Weiland describes was unmistakably intentional. The Court’s shift to individualize the listener whose rights merit constitutional protection permitted it to protect corporate speech rights in ways that its prior precedents did not permit. Advertising was now on equal footing with political speech.
After describing the shift, Weiland describes its effects. Weiland claims that the Court’s use of listener-based justifications for its decisions in the commercial speech and corporate campaign finance areas—in the case of the former, the Virginia State Board case’s conclusion that restrictions on pharmaceutical advertising infringed on individuals’ interest in receiving price information about drugs; and in the case of the latter, Citizens United’s claim that limiting corporations’ political expenditures deprived voters of relevant information about candidates—eroded the Court’s ability to distinguish between kinds of speakers, or to decide whether the First Amendment permitted positive government interventions in the speech market of the type found permissible in Red Lion.
If the First Amendment is agnostic as to kinds of speakers, the status of listeners, and types of speech, then any regulation of speech is of dubious constitutionality. Accordingly, the shift that Weiland describes was to assume without deciding (or really without the benefit of any reasoning) that providing more price information to an individual consumer, or ensuring that a corporation could spend its money to promote or denigrate the candidate of its choice, was no different for First Amendment purposes than ensuring the public’s access to information on and discussion of candidates or their policy proposals. It does the First Amendment no good, Weiland claims, to claim that the Speech Clause protects the rights of listeners without discussing who those listeners are or why the Clause entitles them to information in the first place.
In short, as Weiland convincingly argues, the Court’s claim that protecting any speech rights, whether corporate or individual, ineluctably leads to freer flows of information permits it to elide the balancing question that should be at the core of the First Amendment: whether asserting some speech rights in a particular context might in fact lead to interference with other information flows—which could lead in the end to greater harms to listeners’ interests in self-autonomy and self-governance. If less regulation of speech always and necessarily leads to more information, then cost-benefit analysis with respect to the speech-related effects of any given regulation is off the table. In other words, your $1,000,000 campaign expenditure cannot drown out the $100 that represents all I can afford to spend, because $1,000,100 (your speech plus mine) is greater than $100 (mine alone). Other scholars have made similar arguments, but Weiland’s analysis details better than most how the First Amendment got to this point.
Though I enjoyed every bit of this Article, I did have a very minor quibble with respect to the paper’s claims of novelty. Those of us who play the game know that novelty claims are the most tried-and-true strategy for getting our papers to the top of the law review editors’ stacks, and thus it’s no fault of Weiland’s for making them. Even so, it is a little too pat for Weiland to claim that her project “uncovers a new theoretical tradition.” (P. 1394.) As Weiland notes, claims of the Roberts Court’s First Amendment neo-Lochnerism is a cottage industry in Speech Clause scholarship; these papers are pointing out not just a doctrinal inconsistency, in the sense of the kinds of speech and speakers that the First Amendment should protect, but also a theoretical inconsistency, in the sense that the reasons that doctrine pushes decisions in those directions are at odds with the rationales for the First Amendment in the first place. The listener’s-rights-vs.-speaker’s-rights debate is the stuff of dozens of net neutrality FCC comments and amicus briefs, which Weiland, as an active advocate in that space, well knows. When Weiland argues that the free flow of information is a means and not an end, she has an unlikely ally: Chief Justice Rehnquist, who made the same argument, as well as the neo-Lochnerism charge, in commercial speech cases several decades ago. But this is more of a critique of the larger law review industrial complex and not of Weiland’s paper, which, to reiterate, makes an important contribution, and does so exceptionally well.
“More speech is better speech” is not just an adage anymore. It is the Supreme Court’s governing principle with respect to the theory underlying the First Amendment. Morgan Weiland’s article shows that this governing principle sometimes fails to take into account that “more speech” can come at major expense to the interests that underlay the First Amendment’s protections.