Adam Davidson, Procedural Losses and the Pyrrhic Victory of Abolishing Qualified Immunity
, 99 Wash. U. L. Rev
. _ (forthcoming 2022), available at SSRN
Almost everyone, it seems, is against qualified immunity. Progressive scholars, organizations, and judges have decried the doctrine for shielding unconstitutional conduct from liability, and have argued that its legal foundations are weak and misguided. Conservative and libertarian scholars and judges have also begun to attack it, for both its legal illegitimacy and its perverse effects. Even large swaths of the public have become familiar with the arcane doctrine of qualified immunity, and oppose its continued application.
There are many reasons to criticize qualified immunity doctrine, but it is clear that for many, a primary motivation is its connection to police violence. With the rise of the Black Lives Matter movement, and increased attention to the problem of police violence against the Black and brown communities, the doctrines that shield such violence from civil legal liability have come under increased scrutiny. Central among these is qualified immunity, which can require an almost absurd level of legal “notice” that even unnecessarily deadly uses of force are unconstitutional. It thus seems intuitively obvious that those who care about ending police violence should care about abolishing qualified immunity. But will ending qualified immunity get us any closer to the goal of ending police violence?
This is the question raised by Adam Davidson’s provocative piece, Procedural Losses and the Pyrrhic Victory of Abolishing Qualified Immunity. Davidson concludes that it will not; indeed, he contends that if anything it is likely to lead to a stickier and more damaging body of case law, one that finds police violence to be constitutional on its own terms. As Davidson puts it, “Quite simply, there is little reason to think that federal courts will be more open to civil rights plaintiffs without qualified immunity standing in their way.” Thus, the abolition of qualified immunity is likely to lead a larger number of adverse constitutional decisions on the merits—decisions that, as Davidson points out, would be considerably more damaging and harder to disrupt than a ruling on qualified immunity.
Davidson’s argument is a complicated one, but its core premises can be stated simply. The federal courts have never been especially sympathetic to police misconduct plaintiffs, and there are genuine reasons to be concerned that the recent influx of Trump appointees will exacerbate this tendency. Moreover, there is a substantial body of literature suggesting that courts tend to “equilibrate” to the level of rights enforcement they deem appropriate. To reach that balance, they will draw on whatever tools are available to them—whether preliminary (as with standing doctrine), procedural, or merits-based. Eliminating the procedural tool of qualified immunity is likely to push judges into the terrain of adverse merits and standing holdings. Because those adverse holdings would be largely constitutional in nature, they could not be reversed through the democratic process. These adverse holdings thus could be locked in for decades to come, especially because of the current progressive recommitment to stare decisis in the face of conservative attacks on precedents such as Roe and Grutter.
In light of these potentially perverse effects, Davidson urges advocates to reconsider efforts to abolish qualified immunity, and to devote their limited political capital to “raising the rights floor” for police misconduct through legislation. With respect to the former recommendation, he suggests that losses on qualified immunity are preferable to those on the merits, since they are less durable and easier to change. Thus, it may counter-intuitively make more sense to leave qualified immunity in place, so that advocates can “lose best” (i.e., in the least damaging way). On the latter front, Davidson points out that there are far more direct ways for those who care about police misconduct and violence to address those issues than by abolishing qualified immunity.
The latter point bears elaboration, since so much of our focus as constitutional law scholars is often on constitutional enforcement. In the area of police misconduct and excessive force, it is, as Davidson points out, far from clear that constitutional solutions are likely to be the most effective ones. This is partly because it is unrealistic to expect a federal judiciary that has been increasingly unreceptive to the claims of civil rights plaintiffs to dramatically shift course after the abolition of qualified immunity, especially given the recent influx of ideologically conservative Trump-appointed judges. But even shorn of qualified immunity, there are numerous other obstacles to the use of Fourth Amendment excessive force jurisprudence in reshaping policing practices. Indeed, if our experience with excessive force litigation teaches us anything, it is that constitutional litigation alone is insufficient to dismantle the serious, widespread, and systematic problem of police violence.
What, then, might better address problems of police use of force? This question is obviously a complicated one, and Davidson does not purport to afford it full treatment in this piece. But he suggests that direct efforts to “raise the rights floor,” and to redirect control of policing to the communities affected, are worthwhile places to start. As Davidson and others have pointed out, such efforts have already seen some successes. Many cities, for examples, have banned chokeholds or knee-on-neck maneuvers in the wake of the George Floyd killing. The work of other scholars, focusing on how political movements could shift resources and control away from police departments, provides numerous other ideas on where legislative reforms could be productive. And important work on police unions, training, and culture suggests yet other areas of important reforms.
Ultimately, I came away largely persuaded by Davidson’s argument that abolishing qualified immunity is unlikely to be the best use of the limited legislative reform capital of those who care about ending police violence. Simply put, its likely impacts are too remote when compared to more direct measures to justify making it a legislative priority, in a world in which the legislative will for change is finite. But I was less persuaded by his contention that we should affirmatively avoid abolishing qualified immunity (including, e.g., through judicial advocacy). After all, any use of force case necessarily involves getting past qualified immunity to reach the substantive constitutional issue. We cannot avoid rulings on the merits unless we want police misconduct plaintiffs to always lose. Just as important, if we let this moment of collective disapproval of qualified immunity pass, it seems unlikely that we will have an opportunity to revisit it soon. Qualified immunity has been with us for more than 50 years—though, as recent scholarship has pointed out, for less time in the excessive force context. It erects an insurmountable barrier for many excessive force plaintiffs (and other constitutional plaintiffs). If we have the ability to eliminate it through judicial advocacy, we should seize that opportunity now.
In the end, although I may quibble with some of Davidson’s takeaways, his core insights are no doubt important. Abolishing qualified immunity is unlikely to radically change excessive force practices on the ground. Indeed, as Davidson predicts, it may lead to even more merits losses for constitutional excessive force claims in the courts. If we wish to change police practices, we must, as Davidson puts it, change “who decides”—shifting that power from the federal courts to state and local legislatures or, even more radically, to those local communities most affected by policing themselves.
Alex Schwartz, The Changing Concepts of the Constitution
, _ Oxf. J. Leg. Stud
. _(forthcoming 2022), available at SSRN
American readers, especially those of a textualist or originalist persuasion, will likely be familiar with the idea of corpus linguistics. As one well-known article promoting its use explains, it involves searching “for patterns in meaning and usage in large databases of actual written language” in order to clarify the meaning of legal texts that would otherwise be ambiguous or vague. But can techniques involving computer analysis of text help us understand unwritten rules―say, the United Kingdom’s constitution?
In his article, The Changing Concepts of the Constitution, Alex Schwartz sets out to do just that. Using big-data wizardry, Schwartz explores the way in which members of the UK Parliament speak about the constitution and about constitutional concepts such as parliamentary sovereignty, human rights, and the rule of law, and discerns changes in their use over time. The exercise is enlightening both to those studying the UK constitution itself and also, I submit, to those who are interested in the project of understanding constitutions, in all their diversity.
The UK constitution, one wit has said, “is no more and no less than what happens. Everything that happens is constitutional. And if nothing happened that would be constitutional also.” This is often paraphrased as “the constitution is just what happens.” But that is not quite right. Although legally free from binding constraint, the UK Parliament is nonetheless enmeshed in a web of ideas and understandings, some admittedly vague, about what the constitution allows and what it requires. These ideas and understandings can always be contested, and they change over time, partly in consequence of such contestation and partly, indeed, in consequence of “what happens.”
And a lot has happened in the last few decades: the UK’s marriage of convenience to and tumultuous divorce from the European Union; the consummation of a love-hate relationship with the European Convention on Human Rights, which begot the Human Rights Act 1998―which is now in strong danger of being disowned; Scotland and Wales becoming more autonomous with devolution, and in Scotland’s case, trying to decide whether to move out entirely. It seems plausible, and a number of scholars have argued, that these events and the debates surrounding them have changed the old understandings of the UK constitution, making it more legal and less political, more focused on rights and less on traditional notions of parliamentary sovereignty. Vernon Bogdanor, for one, has argued that the constitution has changed beyond all recognition.
Schwartz tests these claims by examining parliamentary debates about constitutional issues. American readers, mindful of the shape of political debate in recent years, may wince at the suggestion that this has anything to do with actual thinking about the constitution. Yet since Parliament has and frequently exercises the power to change the UK’s constitution, what is said there matters. As Schwartz puts it, “Changes in how political elites speak about the relevant concepts may have practical implications for how the boundaries of constitutional propriety are understood and enforced.”
But it is Schwartz’s method that makes his work especially interesting, both for its own sake and for the kind of results it enables him to get. The method is called “word embedding” and it produces a calculation of the degree to which various concepts are associated with that of the constitution itself, what he calls their “constitutional resonance.” More specifically, the more two words or phrases appear in similar contexts, the more closely connected they must be. If a word or phrase tends to be used in a similar context to “constitution,” the concept to which it refers must be closely related to that of the constitution in the minds of the speakers.
Such an analysis only becomes truly meaningful if applied to sufficiently large bodies of text. In this way, “the estimated change in constitutional resonance will reflect a change in the typical discourse surrounding that concept,” and not be influenced by what was said on a single occasion or even by the frequency with which a concept is debated. This is where big data techniques help. Schwartz was able to analyze the entirety of the parliamentary debates since Margaret Thatcher’s government took office in 1979 and identify all those in which reference was made to a range of constitutional concepts. The resulting corpus contained just over 200 million words, equivalent to roughly 750 Ulysses-length novels.
Separating it into sub-corpora according to time periods, one can also observe the changes, if any, in the constitutional resonance of the relevant concepts. As Schwartz explains, these changes are significant because “[a]s a concept acquires greater constitutional resonance—that is, as its meaning becomes more bound up with the meaning of the constitution—we would expect it to play a weightier role in contesting or determining prevailing notions of constitutional propriety,” and vice versa. The magnitude of these changes taken together also makes it possible to pass a judgment on claims, such as Bogdanor’s, about the UK constitution’s sub silentio amendment or even replacement.
Schwartz’s findings suggest no such dramatic change. While the resonance of “unwritten constitution” has steadily declined over the decades, it easily remains the most constitutionally resonant concept of all those he examines. The decline, to be sure, seems logical in light of constitutional changes such as the enactment of the Human Rights Act and of the (now-repealed) Fixed-term Parliaments Act 2011, as well as devolution. Logically too, “devolution” rose in constitutional resonance with the reforms of the New Labour government, but its rise has slowed considerably since then. Meanwhile, the constitutional resonance of “parliamentary sovereignty” declined―but it remains high, and the decline seems to have been arrested since 2015.
Other shifts in constitutional resonance that one might have expected seem not to have occurred at all. Notably, both “separation of powers” and “the rule of law” became less, not more, constitutionally resonant in the early 2010s, although they may have since recovered much of the lost ground. Surprisingly, too, “human rights” did not become more constitutionally resonant following the enactment of the Human Rights Act, although this may now be starting to change―perhaps, Dr Schwartz (plausibly) suggests, in response to repeated proposals for the Act’s repeal and/or replacement. In short, the way in which members of the UK Parliament speak about the constitution and related concepts has changed rather less than one might imagine since 1979.
What are we to make of this potentially surprising finding? One thing to note, as Schwartz does, is that members of Parliament are not the only people who speak about the constitution. Judges and legal academics do too, of course, and their constitutional discourse may diverge from that of members of Parliament, given the different institutional settings in which it occurs. Schwartz does not mention this, but one might also usefully take an interest in the discourse of journalists, and indeed―if perhaps with more practical difficulties―that of the general public. In the absence of a legally binding constitutional text authoritatively interpreted by the one institution (or, for that matter, even in its presence, albeit to a lesser extent), these discourses are all important in their own way. Nonetheless, as noted above, the parliamentary view of the constitution matters a great deal, and to the extent that it comes as a surprise to others who study and discuss the UK constitution, they may need to ask themselves why that is the case.
Beyond this, there are lessons to be learned for all those who take an interest in constitutions, and perhaps especially in comparing “written” and “unwritten” constitutions. Schwartz’s findings support the view that “unwritten” constitutions, despite their superficial flexibility, can remain quite stable, at least so far as their fundamental structure is concerned. (I have elsewhere made this case in reference to New Zealand.) At the same time, one must keep in mind that the stability of background constitutional understandings is compatible not only with significant constitutional reform, which has occurred during the period studied by Dr Schwartz, but also with what has been described—rightly, in my view, as “constitutional vandalism,” such as Prime Minister Boris Johnson’s unsuccessful effort to suspend Parliament in 2019. To be sure, polities with “written” constitutions are not immune to “switches in time” either. But it may well be the case that the temptation to accept that “everything that happens is constitutional” is stronger in those with unwritten ones―and at the same more difficult to guard against.
In the past few years, a number of prominent voices—including then-candidate Donald Trump, Justice Clarence Thomas, Justice Neil Gorsuch, federal appeals court judge Lawrence Silberman, top Democratic election lawyer Marc Elias, and others—have called for the Supreme Court to reconsider its constitutionalization of defamation law that began with New York Times v. Sullivan. At first these voices seemed quixotic. But there is a growing debate among legal analysts about whether the constitutional parameters of defamation should be altered to strike a better balance between society’s interests in protecting individual reputation, safeguarding freedom of expression, and anchoring our public discourse in truth. Christina Tilley’s new article, (Re)Categorizing Defamation, enters this debate firmly on the side of tilting the playing field back toward plaintiffs, in the expectation that doing so will also help restore media credibility and provide United States citizens with the factual information we need to engage in democratic self-governance.
Although she expresses her prescription somewhat tentatively as merely a call for “reconsideration” of existing law, Tilley urges that defamation law should abandon fault-based liability in favor of a default regime of strict liability. Her rationales for this revolutionary call to return to the defamation law regime that existed prior to 1964 hinge crucially on her accounts of the role of agency in tort law, and the diminished level of “control” mainstream media have (or choose to exert) over their news product today. As she writes, “As publishers have ceded control over content production to in-house bot journalists and independent, amateur reporters, and have ceded control over content publication to platform algorithms, they no longer exercise the kind of control that justifies the use of a fault-based liability standard.” (P. 516.)
Whether one is persuaded that her solution is the correct one depends on whether one accepts her account of tort theory and doctrinal evolution and her evaluation of the weight that should be given to a limited set of mainstream media practices. It depends, too, on whether there are other considerations, such as the inevitability of journalistic error and the threats posed by defamation suits against non-media defendants, that should be brought to bear. But even if one does not accept that her solution is the best answer to the problem, her provocative discussion is well worth reading. I learned things about defamation law from Professor Tilley that I didn’t know despite studying it for 28 years.
The first contribution Tilley makes is to situate her analysis squarely within tort law. As she asserts, ever since the Supreme Court began constitutionalizing the tort of defamation, which encompasses the twin torts of libel and slander, in 1964, many scholars have preferred to examine defamation law through a First Amendment lens rather than a torts lens, and the Supreme Court’s continued intervention from 1964 until roughly the early 1990s stymied common-law developments. My own first “tenure article” in the mid-1990s, which was greatly influenced by the work of scholars Robert Post and David Anderson, also dealt with the relative neglect of tort law in defamation scholarship. I thus find it very encouraging to see a new scholar join us on this insufficiently trodden path—or at least insufficiently trodden in recent years.
Tilley undertakes to explain the anomalous status of the tort of defamation as a strict liability tort until 1964. This, in itself, is a noteworthy undertaking. In their seminal treatise on tort law, scholars Paige Keeton and William Prosser wrote: “Libel and slander have always been anomalies in the law of torts.” Professor Tilley adds to the standard explanations primarily by examining the history and evolving nature of the news publishing industry and drawing a parallel to the general evolution of tort law.
According to standard but contested accounts of the history of tort law, courts moved away from strict liability in the mid-nineteenth century, and fault-based liability became the “default basis for liability in a culture that was changing to value action and innovation rather than passivity and obedience.” (P. 444.) Yet courts continued to apply strict liability in libel and slander cases, pushing the tort of defamation farther outside the mainstream and leaving it alongside strict liability for ultrahazardous (or abnormally dangerous) activities and the keeping of wild animals.
Why did defamation law persist as a strict-liability tort even after tort law shifted toward fault-based liability? To answer this question and justify the approach, Tilley develops an extended analogy between news publication and engaging in abnormally dangerous activities. She centers the rationale for strict liability around the “wrongfulness . . . aris[ing] from a conscious, self-interested forfeiture of human agency.” (P. 446.) The strict liability torts “all involve a choice by the defendant to recruit for his own purposes an instrumentality, substance, or process that is volatile and not responsive to human control.” (P. 446.) The instrumentality, in defamation cases, is words, which are an “ultrahazard” by virtue of the fact that they may escape from the bounded meaning intended by their author and thus do injury when received and interpreted by a reader or listener.
Tilley argues that the degree of agency—that is, control over the content and dissemination of information—the news industry exercises has varied over its history. More specifically, she writes that “the degree of human agency operating to produce words for mass dissemination was at its lowest point in the early years of the Republic, reached a zenith fifty years ago, and has been in steady decline ever since.” (P. 439.) She contends that as the degree of control varies, so should the standards of tort liability imposed. Negligence may be an appropriate regime for defendants who exercise a high degree of control over a harm-causing instrumentality and attempt to restrict its “mischief,” but strict liability is appropriate where defendants have chosen to forego that control.
Her historical analysis of the news industry convincingly demonstrates that the Supreme Court decided New York Times v. Sullivan at an anomalous time. The mainstream press then constituted a “highly centralized, elite, and regular group of institutions following a conventional business model to deliver information to the public.” According to Tilley, the high degree of control over news content exercised by what she terms the “professional press” at the time the Supreme Court decided New York Times v. Sullivan in 1964 may have justified the move toward a fault-based regime. The business model of the news industry enabled plaintiffs to identify “wrongful” behavior by the journalist, editor, and publisher according to professional standards. She shows how the common law had already adopted doctrines to ameliorate the harshness of strict liability to protect defendants who were furthering the goal of citizen education about public matters.
Presumably the courts might have continued to adapt the law to changing circumstances, as they have in other common law countries, had the Supreme Court not stymied tort law’s evolution when it constitutionally converted defamation from a strict liability tort to one in which a case may “sit within strict, intentional, or negligent tort, contingent on a court’s assessment of fact-intensive litigate [and speech] characteristics in any given case.” (P. 488.) Tilley laments the obstacles Sullivan and its progeny imposed on defamation reform in light of dramatic changes in the news industry since 1964, particularly in its exercise of “agency.” As she writes, “The ascent of the electronic speech distribution platforms, the disaggregation of the content production function from the content publication function, and the increasing use of artificial intelligence to both produce and individualize the delivery of content have all diluted the editorial control that was the unspoken linchpin for the fault regime introduced decades ago.” (P. 507, emphasis added.)
Professor Tilley contends that the law must adapt to these changes in the news industry lest defamation law become even more toothless in protecting reputation. Without defamation law reform, plaintiffs will increasingly find it difficult “to locate and prove human fault in the circulation of defamatory information.” (P. 507.) The result will be to “increasingly immunize from liability publishers of untrue and harmful information.” (Id.) She argues that the current structure of defamation law may have already undermined public trust in the mainstream media as purveyors of truthful information, and predicts this undermining of public confidence will accelerate under the influence of the developments she describes unless defamation law undergoes a recalibration.
The recalibration she recommends is a return to strict liability. According to her analysis, the reimposition of strict liability (in all cases?) would better safeguard individual dignity and would set “an expectation of careful speech even in an electronic environment.” (P. 508.) Moreover, it would reduce the “increasingly arbitrary” and complex constitutional categories into which the Supreme Court has sliced defamation doctrine: public official, public figure, private figure, media defendant, non-media defendant, matter of public concern, and so on. The result of “subjecting all speakers to the same liability scheme” would be “greater predictability” for both plaintiffs and defendants, a reduction of litigation costs, and, perhaps, a reduction in jury awards. (Id.) Moreover, it just might enhance our democracy by refocusing the tort on the falsity of the speech rather than the defendant’s intent. Free expression values would still receive protection. Tort law could adapt to protect the media from catastrophic liability when engaged in efforts to perform its watchdog role and provide us with the information necessary for democratic self-governance.
(Re)Categorizing Defamation makes an original contribution to the scholarly debate over whether defamation law currently strikes the wrong balance between protecting individual reputation, safeguarding free expression, and anchoring our public discourse in truth. Even if other scholars may dispute that a return to strict liability is the solution rather than, say, a more selective abrogation or modification of constitutional doctrines and/or a doctrine-by-doctrine rebalancing through tort law, Professor Tilley’s work must be reckoned with.
For example, her work might spur further engagement with the history of defamation law’s status as an outlier in the development of tort law. Arguably, this status stems as much from the tort’s origins in the ecclesiastical courts and subsequent developments within seigneurial courts and the Court of Star Chamber as it does from its evolution in U.S. common law.
Second, her extended analogy between words and ultrahazardous activities might spur further debate as well. While words may, as she suggests, have unpredictable consequences when unleashed on the world, query whether those consequences manifest the same level of dangerousness to the community as explosives or other ultrahazardous activities. The justification for strict liability has often been explained in terms of non-reciprocal risk. The defendant, by choosing to appropriate to her use something that is especially dangerous and uncontrollable, poses a risk to other community members disproportionate to the risks they impose upon her through “ordinary” activities such as driving a car or playing a sport. Given that we all wield words about others in our daily lives, I find implausible the analogy of words to instrumentalities that are abnormally dangerous or inherently unsafe. Furthermore, the equation of physical harm and reputational harm in her extended analogy is one that requires further justification. The analogy trucks on the idea of words as a threat to community “safety,” a construct I fear would justify far more censorship than we have at present. But, of course, this argument is precisely the kind that provocative and original scholarship is meant to engender.
A third fruitful debate that this article might inspire concerns the changing practices of the news business, and particularly the reliance on algorithms to write news stories. She contends that the forfeiture of agency by the news media justifies a return to strict liability, presumably across the board. Before joining her in this conclusion, scholars should really engage with this topic to discover exactly what percentage of stories are written by algorithm. Even if strict liability would be appropriate for algorithm-written stories, why is it justified as a broad prescription for defamation law? What about news stories written by human actors and vetted by editors before publication? Surely some news outlets engage in traditional journalistic processes and do in fact choose to exercise a high degree of agency before publication. According to her logic, strict liability might not be justified in these cases, but altering her liability regime to account for these cases would produce a defamation law regime every bit as complicated as the one we have now.
Fourth, and most significantly, Tilley’s analysis points toward areas that she or others might engage to round out the picture she draws. Her article largely ignores defamation cases involving non-media defendants, though she suggests that strict liability will apply equally to them. I speculate that she would not view a defendant posting on social media as exercising a high degree of agency in the way she is using the term. Although the user of social media certainly has a high degree of control over her words and whether to publish them or not, she does not ordinarily investigate their truth using professional standards, vet her words through an editor, nor control the breadth of their dissemination once posted on social media. Is strict liability the appropriate regime by which to evaluate this speech, no matter who the user criticizes or what topic she addresses? What effect might a strict liability regime, with the current potential for multi-billion-dollar lawsuits such as those in the Smartmatic and Dominion Voting Systems cases, have on those of us non-media actors who use social media to participate in public discourse? This topic is worth exploring, and I am eager to see what Professor Tilley does if she chooses to undertake it.
David S. Cohen, Greer Donley, and Rachel Rebouche, The New Abortion Battleground
, 122 Col. L. Rev.
__ (forthcoming 2022), available at SSRN
The Supreme Court appears poised to overrule fifty years of precedent holding that pre-viability prohibitions on abortion are unconstitutional. In a leaked draft opinion of Dobbs v. Jackson Women’s Health Organization, Justice Alito proclaims that Roe v. Wade and Planned Parenthood v. Casey must be overruled and abortion left to the states to regulate. During oral argument in Dobbs, Justice Kavanaugh suggested that overturning Roe would return the Court to a position of “neutrality” on abortion. Justice Kavanaugh’s assertion falls in line with claims by anti-abortion jurists that reversing Roe would simplify abortion law by returning the issue to the states and getting the federal courts out of the hot-button issue of abortion.
In their draft article The New Abortion Battleground, forthcoming in the Columbia Law Review, David Cohen, Greer Donley, and Rachel Rebouche thoroughly disprove the notion that abortion law will become simpler if and when the Court overturns Roe. Given increasingly pitched polarization between red and blue states, the authors show how the abortion wars will continue in the federal courts—but will shift from constitutional battles over fundamental rights to liberty and equality to fights over principles of federalism and interstate comity raised by interjurisdictional conflicts between states and between the federal government and the states. The article is a must read for scholars and legal advocates preparing for the aftermath of the Supreme Court’s decision in Dobbs.
The article describes interstate conflicts over abortion that will inevitably emerge given that some states will seek to restrict their citizens’ out-of-state travel for abortion care while other states will seek to protect the provision of abortion care to out-of-state patients within their borders. Potential conflicts could also arise between an actively abortion-supportive federal government and anti-abortion states. The article’s primary contribution is to map out the complex legal questions that will ensue from Roe’s reversal on both the horizontal and vertical axes of interjurisdictional conflict. While a few scholars in the past have discussed the conflict of laws and other legal issues raised in this context, Cohen, Donley, and Rebouche provide a much needed scholarly update on states’ ability to regulate interstate abortion travel—travel that will be inevitable in a post-Roe world.
First, on the horizontal axis, the authors provide an overview of possible interstate conflicts as anti-abortion states attempt to punish abortion care provided to their citizens out-of-state and abortion-protective states seek to protect their providers from out-of-state prosecutions or civil lawsuits. Estimates are that as many as twenty-six states will ban almost all abortion services when Roe is overturned. In contrast, fifteen states thus far have passed state laws protecting abortion access within their borders. (Pp. 6-7.) It is not farfetched to imagine anti-abortion states criminalizing the out-of-state abortions that will be a necessary part of a post-Roe legal landscape. The authors point out that a Missouri legislator has already introduced such a bill. (P. 7.) Similarly, abortion-supportive states are already proposing and passing legislation protecting clinicians who provide lawful in-state care to out-of-state patients.
With respect to interstate conflict, the authors focus on criminal law conflicts in particular (although interstate civil lawsuits are also possible if more states copy the Texas SB8 bounty hunter civil law ban on abortion). States could potentially deploy existing criminal laws to prosecute out-of-state abortion or pass laws specifically targeting extraterritorial abortion for criminal prosecution. In our federal system, states generally do not have the authority to regulate conduct outside their borders. However, as the article explains, the “general rule against extraterritorial application of criminal law has enough gaps to allow prosecution of a wide variety of crimes that take place outside the jurisdiction of a state.” (P. 20.)
A few scholars have debated legal questions about extraterritorial restriction of abortion in the past, but that debate has not been updated in years nor has this scholarship accounted for the new realities of abortion provision through telemedicine with abortion pills. The article parses out the existing literature on state regulation of abortion travel, and clearly explains how medication abortion works whether through telehealth or self-managed abortion. The authors conclude that the constitutional uncertainty on many of these questions combined with new technologies of abortion care “will keep the Court mired in difficult abortion controversies long after Roe’s destruction.” (P. 23.) On the other side, abortion-supportive states could seek to thwart interstate criminal and civil investigations for abortion travel. States could pass laws protecting their providers from anti-abortion interstate civil lawsuits, criminal subpoenas, and extradition; indeed Connecticut has already passed one. The authors argue that these abortion-protective laws would likely not raise issues that could be challenged in the courts (depending upon how they are drafted) but could threaten basic principles of comity between the states. Interstate conflict could intensify as states engage in a tit-for-tat over abortion, guns, and other controversial topics, which could have larger consequences in our federal system.
Second, on the vertical axis, the authors discuss potential conflicts between the federal government and state governments. In particular, the authors focus on the potential for federal law on medication abortion (abortion through the use of pills regulated by the FDA) to preempt state laws that overregulate or ban medication abortion. More boldly, the authors suggest that the federal government could lease federal land to abortion providers to ensure access to care in every state. Both the FDA preemption and federal lands arguments carry much legal uncertainty and will “spark new debates about the balance of state-federal power in abortion law.” (P. 49). As the authors explain throughout the article, case law is quite thin on many of these issues and there are no clear answers to the legal questions around interjurisdictional legal conflict that will emerge in a post-Roe world.
Another important contribution of the article is its proposals for state legislative and federal government action that could preserve access to abortion care in a post-Roe world. These proposals range from state legislation to protect abortion providers to enterprising suggestions such as leasing federal land to abortion clinics.
While there will certainly be disagreements about what legal strategies should be prioritized by reproductive rights and justice advocates, the article provides a much needed overview of the landscape of potential conflict post-Roe that will inevitably reach the federal courts. Although the authors cannot offer clear legal conclusions on many of the interjurisdictional conundrums that will explode in a post-Roe world, the article accomplishes its goal of painting the overall picture of these conflicts. As the authors aptly note: “The picture we paint is labyrinthine, and the ground we cover is largely unexplored: some states will assume roles as interstate abortion police, others will attempt to protect all abortion provision however they can, while the current federal government will have the opportunity to create new spaces, within and outside of hostile states, for abortion access.” (P. 16).
The authors persuasively show that overturning Roe v. Wade will not end the abortion wars in the U.S. and that the Supreme Court will not escape the conflict under a pretense of “neutrality” with regard to abortion.
Professor David Han addresses the question of how technological change is having an impact on constitutional rights interpretation. He focuses on the Fourth Amendment and the First Amendment. His central thesis is that the rule-based approach employed by the Supreme Court in these areas no longer functions adequately. The Court has long justified its reliance on a categorical interpretive modality on the ground that it has many advantages, such as clarity, predictability, history, and formalism. Han argues that despite these ostensible benefits, the rule-based approach cannot accommodate the rapid pace of technological change. His arguments are quite persuasive, with only a few exceptions.
Regarding the Fourth Amendment, he draws a dichotomy between older law enforcement methods and new, more constant forms of modern surveillance. The Court has found that newer mechanisms such as the GPS, mass tracking, and data analysis break old barriers and clearly violate privacy interests. These modern tools make monitoring “relatively easy and cheap.” By contrast, beepers, bank records, logs, and pen registers are not nearly as effective. Han relies heavily on Orin Kerr’s view of the Fourth Amendment and new technology, encompassed in the flexible concept of an “equilibrium adjustment” approach. In other words, as the privacy invasion becomes more serious, the need to protect Fourth Amendment rights increases. See United States v. Jones, 565 U.S. 400 (2012) (GPS); Carpenter v. United States, 138 S. Ct. 2206 (2018) (cell phone pings). These Court decisions therefore found Fourth Amendment violations.
Han then turns to the First Amendment case of Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), which dealt with incitement. The Court adopted a three-part test, finding that the government cannot prohibit advocacy of the use of force unless the advocacy is geared to producing imminent lawlessness and is likely to produce it. Brandenburg was decided at a time when the major efforts at incitement involved speeches at rallies, or the use of leaflets and the like. Such methods imposed an inherent limit on how widespread the incitement could be. With the Internet and social media, those limitations has vanished. A group’s members can interact in real time, so there is not just one leader and changes on the ground can be communicated instantly. The rally that President Trump spoke at, prior to the January 6 Capitol riots, did not just motivate that crowd to violence– it energized a political base intent on denying President Biden’s victory.
Professor Han makes clear that the primary purpose of his article is not to analyze and propose new legal doctrines in each area. Han wants to rise above such an approach and arrive at a meta-legal view of how the Supreme Court should accommodate technology changes. Nonetheless, he does cite authors like Tushnet and Sunstein, who have advocated a broader approach to incitement and support placing less value on outrageous speech in this new context. And he makes some doctrinal assertions that I think are incorrect. For example, labeling “fake news” illegal in his view would have a chilling effect and could lead to government abuse, despite his awareness of its possible damaging impact. This understates the harm against which these dangers must be balanced, given that our democracy is literally eroding. But he is willing to entertain the option of middle-tier or intermediate judicial scrutiny in this area, in contrast with the Court’s often bedrock resort to strict scrutiny.
Han also does a good job of discussing even newer questions about expression, such as computer code, bots, search engine results (that can be based on biased algorithms), speech that is a product of artificial intelligence, and still others. But another problematic area where he is still very pro-speech is in supporting the rights of confined pedophiles to utilize the Internet. Packingham v. North Carolina, 137 S. Ct. 1730 (2017).
Most of the article goes past specific doctrinal areas to the broader question embodied in the title. Here, Han makes a powerful argument. In considering the effect of new technologies, courts should seize the opportunity to transparently and realistically reassess the assumptions and values present in longstanding Supreme Court decisions in these areas. As discussed, in some situations, new doctrines should result. But flexibility should be built in, as there may be even more technological changes to come. He essentially criticizes the violent video game case, Brown v. Entertainment Merchants Association, 564 U.S. 668 (2011), where the Court refused to consider such expression to be obscene because it was not sexual.
Professor Han argues that the Court can take an incremental approach to these questions. He suggests, colorfully, that there is a “pathological aversion” to complexity in First Amendment doctrine. He also discusses the pros and cons of comparing the First Amendment and Fourth Amendment here. Bluntly, he says there is value in “provisional doctrinal approaches.”
One possible addition would have been a discussion of the proportionality approach to speech used in countries like South Africa and Western Europe. That avoids the constant focus on content neutrality above all in the First Amendment area. But this is a fine article on its own terms.
In recent years, some historians and legal scholars have taken to calling the Reconstruction Era the Second Founding of our Constitution. In The Second Founding and the First Amendment, William C. Carter joins these scholars and asks what it would mean if courts took the Second Founding seriously. Carter argues persuasively that the Reconstruction Amendments altered the entire constitution. If Carter is correct, then the Court should take seriously what it once observed, that there is “one pervading purpose” to the Reconstruction Amendments, “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over them.” Although the Reconstruction Amendments were not limited to that purpose, it is undeniable that unlike other constitutional provisions, the Reconstruction amendments – the 13th, 14th and 15th Amendments – were adopted with a particular group of people in mind, people who were formerly enslaved.
The Reconstruction Amendments expanded the constitution to protect those who had previously been excluded and disempowered. It follows that the Court should consider the experiences of enslaved people when interpreting those provisions. Until now, however, the perspective of formerly enslaved people has been largely absent from the conversation about the meaning of the constitutional changes wrought by Reconstruction. In The Second Founding and the First Amendment, William C. Carter seeks to remedy that oversight. Carter argues that we should interpret the constitution from the perspective of the disempowered people who were the intended beneficiaries of constitutional change. Moreover, formerly enslaved people and their free Black allies helped to create this constitutional meaning, actively participating in the antislavery movement and Civil War which brought about the end of slavery and the Reconstruction Era.
Like the founding of the original constitution, the Second Founding was a unique constitutional moment which established a new constitutional order. The Thirteenth Amendment prohibited slavery and involuntary servitude. The Fourteenth Amendment recognized all people born in the United States, even if they were enslaved, as citizens of the United States and entitled to individual rights. The Fifteenth Amendment prohibited states from denying the right to vote on the basis of race in order to enfranchise newly freed slaves. These Amendments transformed our constitution from one which sanctioned the institution of slavery and the denial of the humanity of millions of people who lived in our country into a document that recognized all people as rights bearing individuals who are entitled to constitutional protections. As Reconstruction Congress member Massachusetts Senator Charles Sumner proclaimed, the new Constitution would be “interpreted uniformly and thoroughly for human rights.”
To determine the content of those rights, Carter argues, interpreters must consider the views and experiences of enslaved people whose rights had been denied. “[B]y listening to enslaved persons’ voices, we credit them as part of the contemporary polity whose understanding should matter in constitutional interpretation, rather than merely as passive beneficiaries to, or forgotten members of, the Second Founding.” (p. 1066) Carter explains that the views of enslaved people are important to constitutional interpretation “not only because of (their) privileged access to descriptive or normative truth, but simply to correct its previous suppression.” (p.1092). To remedy the oversight, Carter describes restrictions on the free speech of enslaved persons and their allies during the pre-Civil War era. Along with historical accounts, Carter relies on narratives published by fugitives from slavery in the antebellum era. Those narratives include powerful testimony about life under slavery and served as important political tracts in the antislavery movement.
Slaveholders lived in daily fear of slave revolts or escapes, so did everything they could to prevent communication that would encourage or aid any sort of resistance or escape. Slaveholders punished enslaved people for speaking out against slavery or criticizing their masters in any way. Enslaved people were also affected indirectly by restrictions which slave state imposed on abolitionists who criticized slavery. Critics of slavery argued that slavery was undermining our nation’s founding ideals, including, most notably, freedom of expression. Conflicts over antislavery speech often escalated into violence. Proslavery mobs attacked abolitionist printing presses, notably murdering antislavery journalist Elijah Lovejoy. Thus, suppressing free speech was a central component of the legal structure of slavery, and the denial of freedom of speech was arguably a badge or incident of slavery.
Carter argues that courts should take this history into account when interpreting the First Amendment today. Recently, the United States Supreme Court adopted this approach when holding that the Fourteenth Amendment incorporated the Second Amendment against state and local governments in McDonald v. City of Chicago. Considering the experiences of enslaved people sheds light on First Amendment doctrines. For example, the perspective of enslaved people calls into question the state action doctrine. Carter points out that threats of violence silenced enslaved people more than government action. Considering the perspective of enslaved people also supports the Court’s doctrine against compelled speech and viewpoint discrimination.
Recent years have been marked by a reckoning with our nation’s history of slavery. During the 1960s, an era which historians refer to as the Second Reconstruction, civil rights activists relied on the First Amendment in their movement to reinvigorate and enforce the Reconstruction Amendments. However, we have really only begun to understand the impact of slavery on all of our constitutional principles, in large part due to renewed activism of participants in a new movement for racial and economic justice which I have elsewhere called the Third Reconstruction. Carter makes a persuasive argument that the Reconstruction Amendments mandate such a reckoning, acknowledging the fact enslaved people played a central role in the battle against slavery and in favor of constitutional change. Starting from the bottom up provides a new and important perspective for constitutional interpretation.
In their irrepressibly interesting essay, Samuel Bray and Paul Miller argue hard against the idea that notions of fiduciary duty writ large ought to be welcomed within the analytical apparatus of United States constitutional law. They worry about ensuing anachronism – indeed, repeatedly underscore this concern.
The 1787 constitution may be roughly contemporary with the law of trusts, for example. In the fiduciary notions we now try to group abstractly, however, much that is important dates from nineteenth and twentieth century developments – plainly coming too late to the party to figure as constitutional contemporaries. Bray and Miller concede that there is a very old practice of treating classical notions of loyalty and disinterest and the like as adding emphasis – maybe even urgency – to constitutional discussion. They do not deny the existence of Plato and Cicero, Locke and Hume, or their gangs of adherents. “But this language offers moral guidance and political wisdom,” they write, “not enforceable duties with remedies that can be awarded by courts.” (P. 1483.) Surely we can all agree with this. Plato and Benjamin Kaplan were and are in no way pursuing the same project. Bray and Miller lower their boom.
Against this long history of a figurative and legally thin understanding of public office as a trust, it becomes easier to recognize the fiduciary constitutionalist project for what it is: an earnest and literalistic misreading of the tradition and an insistence on taking figurative language that works across thousands of years of political theory and treating it as if it were an invocation of an inevitably more particular body of legal or equitable claims and remedies. (Pp. 1483-84.)
The individual explorations leading to this conclusion are carefully developed. The overall argument looks to be straightforward.
Notably, Bray and Miller do not deny the possibility that “figurative language” and “more particular” terms might coexist within legal writings, both concerned with what ought to be emphasized or marginalized or proscribed. Why such doubling? Signaling efforts are evident – either openly or implicitly – in installations of operative legal text, whether primary or secondary. This push and pull, we might think, both assembles legal statements and puts them in relief, working as a choreography of sorts. Normative backdrops emerge, underscore commitments and reveal rejections (steps toward or away). Bray and Miller are concerned that we not confuse “figurative” and “particular” modes. But they are provocatively silent regarding the affirmative possibilities presented by this doubling.
The past half-century has witnessed extraordinary explosions of close creative thinking as to the implications of fiduciary duties in prominent fields of law. ERISA has provided one such context, regularly explored by the Supreme Court and other federal adjudicators, building up a considerable distinctive technicality. The American Law Institute, after two not-too-happy earlier tries, relatively recently (in this century) adopted a third Restatement of the Law of Agency. Much of the credit, it appears, rightly rests with reporter Deborah DeMott, cited by Bray and Miller as an early theorist of fiduciary duty considered abstractly. The Restatement, though, is deeply immersed in concrete agency circumstances. Fiduciary duty vocabularies are at points strikingly recast, treated as not yet fully set and thus still amenable to recasting. Ideas about agency (not necessarily trusts concerns, for example) re-animate fiduciary ideas, now changed accordingly. The new Restatement is blockbuster legal artistry.
The monster jam remains, however, the two-decade sequence of temblors rattling and re-rattling corporate finance law, beginning in the mid-1970s. Whether tender-offer-forced, negotiated, or essentially unilateral, mergers and other acquisitions multiplied dramatically, shocks and aftershocks accumulating. The monetary costs, the commercial and employment disruptions felt sometimes over and over, the huge sums redistributed – all contributed to waves of aggressive and defensive litigation, mostly in Delaware courts. Longstanding corporate law fiduciary principles, or at least their decisive corollaries, changed repeatedly, within surprisingly short periods of time, as judges sought to manage the turmoil. In American legal history, there are very few common law exercises quite so closely, dramatically recurringly.
Professors Bray and Miller likely know all this too. They don’t want to discuss it. No one, it is easy to think, believes that any or all of the great piles of Delaware chancery court decisions, Supreme Court ERISA interpretations, or Agency (Third) provisions, however wondrous, are part of the immediate corpus of United States constitutional law. But there is surely much we can learn from the particularities of all this work. Legally purpose-built organizations are sometimes beset and go awry. Lawyers, judges, or legislators respond, often adjusting or indeed retooling parameters of modern American fiduciary duty enforcement or nonenforcement. What we learn from these substantial efforts may not, in the end, strike us as relevant to American constitutional law. But maybe it would seem so sometimes, and the fact that it is once-removed would not undercut this usefulness if we were persuaded of its aptness.
Learning of this sort would be unabashedly “metaphorical.” Or we might call it a legal version of “wisdom.” Bray and Miller’s fundamental distinction would still hold up. Indeed, they might note, robust procedural and remedial regimes more immediately coincide (or coexist) with constitutional law as such. Familiar distinctions between rights and remedies and substance and procedure, accompanied often by careful segregations of immediately pertinent legal materials, set boundaries. We all know, though, that these boundaries are not walls. We recall William Rehnquist’s extraordinary triptych in Rizzo v. Goode, indirectly invisibly regulating the reach of important constitutional norms. We remember from the same era Abram Chayes and Owen Fiss arguing fiercely about the implications and relative priorities of remedies and rights; and too, the persisting debates about how closely (or not) the Rules Enabling Act distinction between substance and procedure confined Benjamin Kaplan’s 1966 rules rewrites. Again, the significance for constitutional law at the time was obvious even if one step removed. These were and are still important illustrations of separated but interacting bodies of law. No appeals to abstraction of the sort that Bray and Miller criticize are involved. (Henry Smith’s recent reworking of the relationships of law and equity is perhaps another example.)
A final note: Bray and Miller do not commit themselves to the proposition that constitutional law as we understand it should ordinarily overlap 1787 understandings, but they do note that the proponents of fiduciary incorporation seem to suppose so. There is more to explore here. Perhaps originalists would prefer a strong presumption against “metaphor” or “wisdom” counseling strongly specified interpretive choices when enough, or important enough, 1787 terms look to be relatively open textured. Would later constitutional amendment terms properly control if interpretations of seemingly open 1787 terms are not inconsistent with later inclinations? The same questions multiply as we consider once-removed modern statutes and common law – in particular, newer detailed reworkings of fiduciary ideas (not abstract formulas). Maybe original understanding matters “enough” practically only if there are a sufficient number of well-defined important 1787 terms. Maybe we need a theory of 1787 fundamentals therefore.
But where would that come from? It may help to borrow a reverse “metaphor” from John Rawls. There needs to be a set of 1787 “constitutional basics” somehow primary. But this set itself requires justification – its own corollary “thin theory” of the good to be treated as itself constitutionally basic. All of this would have to be taken up first, before later “metaphors” come on stage. What if we are not entirely satisfied with the derived thin theory? Would we then turn to the work of reconciling the initially “original” thin theory with later ostensible glosses – circumspect updated amalgams in the end, as it were?
Bray and Miller write provocatively. They push their readers further.
In the 1980s, when conservative scholars first rallied around originalism, their questions often mirrored those of historians. Back then, originalists were interested in original intent, and traditional historical methods provided the most obvious means of discovering it. But intent-focused originalism encountered devastating critiques. Paul Brest noted the frequent impossibility of identifying a single coherent intention among the Constitution’s framers. Jefferson Powell argued that originalism itself was not originalist, as the framers did not intend for the Constitution to be interpreted in this way. Such critiques led most originalists to eschew intent and focus instead on original public meaning: how the Constitution’s words would have been understood at the time they were written. This shift has increasingly driven a wedge between originalists and historians, as originalists turn to tools such as electronic corpora to elucidate the meaning of the Constitution and reject historical inquiries not focused on textual meaning as irrelevant or an obstacle to valid interpretation. Originalist Randy Barnett suggests “[y]ou don’t need a PhD. in history” to discover the semantic meaning of words, even in the distant past. Historian Jonathan Gienapp claims originalism today “is an affront to all historians.”
Gienapp’s new article takes aim at contemporary public meaning originalism. It levels a critique that, if correct, has the same foundational impact on today’s originalism that Brest’s and Powell’s critiques had on earlier versions of the theory. Gienapp’s central claim is that the framers’ “conception of constitutional writtenness was worlds apart from” the conception of constitutional writtenness originalists now take for granted. No assumption is more foundational to contemporary originalism “than the idea that the Constitution is essentially a written text: that the Constitution just is the document written during the summer of 1787.” On this view, the Constitution had no content before it was written; it acquired its content only through express addition; and its text is the exclusive and comprehensive repository of such content. By assuming the Constitution just is the written text and nothing else, Gienapp observes, “originalists enable originalism to appear as an intuitive way to interpret it.”
The problem, Gienapp argues, is that to treat the Constitution as exclusively written “is to give it an identity.” He argues that the framers did not believe the entire content of the Constitution was encapsulated in its text. They understood writtenness differently than today’s originalists because they did not believe that fundamental law, of which the Constitution was a critical part, consisted only of the positive enactments of lawmakers. They believed that foundational legal principles pre-existed the written law, lay substantially beyond the control of human actors, and were discoverable, like the laws of mathematics, through observation and reason. Some parts of the Constitution had no existing referent in fundamental law and needed to be positively stipulated. But, Gienapp argues, “just because some constitutional content was constituted by text did not mean all of it was.” The framers presupposed that the Constitution “effectuated, elaborated on, and harmonized with the general principles of fundamental law.” They did not believe that “writing constitutional principles down . . . erected sharp textual boundaries between what was in and what was outside of” the Constitution, nor that it was possible to reconstruct the Constitution’s entire content solely from its text. Scholars such as Akhil Amar have shown that our written Constitution depends on and interacts with unwritten sources of constitutional law. But Gienapp makes the problem for originalists more acute, offering evidence that the framers rejected the core understanding of “writtenness” originalists now advance.
Gienapp’s evidence will not be easy for originalists to surmount. In 1791, John Quincy Adams asserted that “the Constitution of a country is not the paper or parchment upon which the compact is written,” but rather, “the system of fundamental laws, by which the people have consented to be governed, which is always supposed to be impressed upon the mind of every individual, and of which the written or printed copies are nothing more than the evidence.” Gienapp argues that the framers’ different conception of constitutional writtenness is apparent in much of their writing, including early Supreme Court decisions. The first Justices regularly appealed to the law of nations and general jurisprudence to elaborate the meaning of the Constitution. They understood those sources as different ways of accessing the same fundamental law that the Constitution recognized and sanctioned, and thus as important guides to constitutional meaning not fully incorporated in the text. Even more strikingly, Gienapp shows that, as bitterly divided as Revolutionary-era Americans were over the scope of federal power, they agreed that the federal “government’s power was a function, not of what had been written into the Constitution, but of the nature of the underlying union.” Both sides “presupposed that the Constitution’s meaning could not be reduced to or recreated from its written content”—that, for instance, “Article I was not constitutive of federal power but merely an expression of what many of those powers happened to be.”
This is not a friendly amendment; it is a foundational challenge. Gienapp argues that “[s]tipulating that the Constitution’s meaning is the meaning of its words, is not to passively interpret it, but to construct it”—”wrenching it into the present just as any living constitutionalist might.” It is not clear how originalists will respond to this challenge. Gienapp argues—correctly I think—that standard attempts to disaggregate the Constitution from the subjective intentions of its authors will not work here. His critique is not focused on Founding-era views of interpretation, but on original understandings of what was being interpreted. If Gienapp is right about the framers’ approach, then the original Constitution was simply a different entity, with different content, substance, boundaries, and meaning, from the more modern, exclusively-written Constitution constructed subsequent to 1787.
Originalists could respond by conceding that their Constitution is purely stipulated—a modern legal fiction that has little to do with the actual Constitution that existed in history. In fact, Gienapp writes, “[o]ne gets the sense that they might move in this direction, especially when they claim, as they increasingly do, that originalism is a theory of law, not history, and that history cannot decide what the law is.” Given how much originalists have conceded over the years, this is not beyond imagining. As Larry Solum has suggested, at least some versions of originalism could in theory be compatible with accepting some unwritten sources of constitutional law. But it seems highly improbable to me (and to Gienapp) that originalists will actually concede that their written Constitution, with its special privileging of the text above all else, is a contemporary legal fiction. It’s too fundamental a concession; it undermines the entire premise of originalism and its core claims to distinctness and legitimacy.
Thus, I think originalists are left with two choices. They can ignore Gienapp, or they can try to refute his history. That latter, more honest, path would require arguing that he’s gotten the intellectual history of his period wrong—that he’s misunderstood the framers’ mindset and that they understood constitutional writtenness in essentially the same way originalists do today. Originalists’ preferred tools aren’t going to be much help with this: dictionaries, electronic corpora, and whatever other ostensibly objective tools originalists rely on to detect the semantic meaning of the Constitution cannot answer deep questions about the implications of writtenness and the essential nature of our founding document. To answer those questions, we’re going to have to conduct the kinds of historical inquiries originalists have increasingly dismissed as subjective, unreliable, and an obstacle to proper constitutional interpretation. We’re going to have to enter the distinctly foreign territory of late eighteenth-century America and try to recover ways of thinking potentially quite different from our own. A PhD in History may not be strictly necessary for this project, but it sure would help.
Zalman Rothschild, Free Exercise Partisanship
, 107 Cornell L. Rev.
___ (forthcoming 2022), available at SSRN
“What God says is best, is best, though all the men in the world are against it.” John Bunyan, Pilgrim’s Progress
Zalman Rothschild has published a wonderful empirical study of patterns of voting by federal appeals court judges and district judges in free exercise cases. A soup-to-nuts feast of data, doctrine, and dilemmas for a jurisprude or, God forbid, a regular American, the Article feeds the intellect, brings cheer to the most cynical legal realists among us, and offers a glimmer of hope to a waiting world wanting to believe—in federal courts. The Article provides evidence of a shift from longstanding relative consensus about free exercise claims to a starkly partisan pattern in judicial choices around these claims. At the extreme, in recent cases involving COVID 19 restrictions, the difference is total. Judges appointed by Republican presidents find discrimination every time. Judges appointed by Democratic presidents judges never do. (P. 3.)
Rothschild’s article arrives at a moment of scholarly ferment. Discussions of the free exercise free-for-all abound. Many parse the mysteries of court doctrine. Others offer one way or another out of a thicket of controversy and vitriol. Rothschild’s merger of a wide base of knowledge and analysis rises to the top, for my money, if you wonder what’s to be done, or if you need to be educated about the latest entanglement of free exercise doctrine with the culture war.
Free Exercise Partisanship is notable for unearthing a partisan pattern in judicial outcomes involving gay marriage, reproductive care, and COVID, three recent hot spots in the culture wars. In addition to the torn-from-the-headlines nature of his basic finding—partisan affiliation determines most outcomes in free exercise cases—Rothschild provides an evidence-rich jurisprudential critique of the Court’s free exercise work product, with particular reference to its embrace of judicial minimalism. (P. 5.) Despite the case for minimalism as a means of avoiding the Supreme Court’s engagement with divisive issues, the unsavory result in the lower courts is a partisan lottery for federal appellate panels. Free exercise in the appeals courts has little certain meaning, Rothschild shows, simply Red-judge or Blue-judge readings. Lawyers sporting judicial robes deploy polished legal arguments and reach opposing conclusions.
Rothschild’s article connects the empirical and doctrinal analysis to the jurisprudential consequences of ambiguity in a contested area of law. The less clarity from the highest court, the more partisan the judicial reasoning and resulting outcomes below. Free exercise, we see from the data, is ripe for partisan decision-making and attendant diminished confidence in law as neutral. When balls and strikes are called with reference to strike zones designed for the eyes of judicial political party affiliates, judicial opinions begin to resemble amicus briefs from contending interests. The evidence and doctrinal discussion by Rothschild together present an unsettling look at controlled chaos in the federal courts in an area of significant cultural conflict. Rothschild charts a path out of chaos. On one side is the specter of private conscience becoming an exemption from general law. On the other is the harsh view fashioned by Justice Scalia in Employment Division v. Smith, under which any free exercise claim must scale the steep hill of proving intentional discrimination against a disfavored religion.
To fully understand the elbow room for partisan judicial answers in free exercise matters, one must have a basic primer in the doctrinal maneuvers set loose in the aftermath of Smith. Justice Scalia’s opinion for the Court provided a brisk denial of religious exemptions from generally applicable law in the absence of proof that the state acted with discriminatory intent. This was consistent with Scalia’s general rejection of heightened judicial scrutiny of constitutional claims of any sort based on differential impact. Justice O’Connor argued that Scalia had distorted precedent. But she would have reached the same result, by concluding that the state interest in regulating a dangerous drug was sufficient to justify burdening the free exercise of religion by indigenous Americans in a ceremony involving the use of peyote.
With the equality conception of free exercise taking hold, Justice Scalia’s nightmare has in a sense come to fruition: that plaintiffs could invoke free exercise of religion at every opportunity. (P. 35.)
Smith was initially widely criticized for being improperly hostile to free exercise claims. But its effect was considerably softened by Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah. Lukumi held that strict scrutiny would still apply if a law burdening religion involved either intentional discrimination or legal gerrymandering that has a similar impact. The result, ultimately, was ever-greater complexity in free exercise analysis, as courts debated the nature and breadth of this reading of Smith.
In the latest Supreme Court offering, Fulton v. City of Philadelphia, Chief Justice Roberts applied his usual mix of minimalism and complication as he strove to reconcile the outcome in that case with Smith and Lukumi. The opinion for a unanimous yet splintered Court gave us the Chief striving to avoid the sins of disruptive change in judge-made law while giving judicial partisans room to roam in search of harm to religion. “As it declined to reconsider Smith, the court applied strict scrutiny, but it barely engaged the elements of that constitutional standard.” Three concurrences by Republican appointees argued for revisiting Smith, likely pointing to an eventual overruling.
The result is confusing guidance about basic terms in free exercise jurisprudence. Legal gerrymandering means a differential application indicative of malign intent, something at least compatible with Scalia’s view on the need to prove discrimination. But advocates of a more protective free exercise doctrine have pushed for what some commentators call a “most favored nation” interpretation. As Rothschild puts this position, “General applicability demands that religion not be treated worse than almost any secular activity under the law—or, put differently, that religion be given superior treatment vis-à-vis all secular interests that are not extended exceptions.” (P. 29.) Secular interests are thought robust and able to contend for themselves, but more delicate religious interests require the hyper-vigilance of (Republican) judicial appointees. In fact, one maneuver is to refer to what a forthcoming article calls the two halves of Smith: the relatively remote case of intentional discrimination, and a newly supercharged meaning of general applicability—a kind of equality on steroids. This moves the analysis away from invidious discrimination and toward an argument that religion may not be undervalued vis-à-vis “any” conceivable secular activity. By comparison with Justice Scalia’s commitment to rational basis review and deference to legislators, most favored nation analysis has moved federal courts firmly into the contested project of advancing a policy position on free exercise.
As Rothschild shows, this position has a strong partisan correlation. Rothschild measures the votes of individual judges, a choice that may obscure the effects of panel composition on judicial decision-making. Nonetheless, the data show strong partisan preferences, and are consistent with other recent data. The article is a model of dual-purpose legal scholarship. It advances the state of knowledge about an area of law, and it is educational for a general reader interested in learning more about a current culture war mediated by the federal courts. And its skilled combination of data analysis with careful parsing of legal doctrine provides a model of how to conduct attitudinal analysis without slighting legal analysis. The article’s contributions are thus empirical, historical, doctrinal, and jurisprudential. What’s not to like?
Doctrinally, Rothschild effectively demonstrates the distance that conservative judges have traveled from Justice Scalia’s approach in Smith. Scalia insisted on the importance of leaving a wide scope for legislative decision-making and minimizing what he thought to be judicial imperialism, and was highly skeptical of rights claims that were not based on intentional forbidden discrimination. Yet somehow, free exercise jurisprudence, without overruling Smith, has become the source of an “expansive” equality jurisprudence that requires heightened scrutiny for laws affecting religion as long as a “general” law has even one exception. The concern has shifted from invidious discrimination on the basis of religion to a demand for something akin to what conservatives once called “special rights.” Bias, reconceived as a brutish indifference to religious sensibilities, is presumed—by culture warriors and, both data and opinions suggest, by Republican appointees to the federal courts. By contrast, where voting rights are concerned, any expectation of similar willingness to detect a discriminatory purpose, or a special importance of a right in need of judicial protection, appears to be in vain. The irony is not lost on Rothschild.
Rothschild’s thorough review of doctrine and voting patterns in free exercise law invites deliberation on the stakes involved in these cases, and on the judicial process itself. What should make either side in the dispute fret? Are the core values of religious freedom at stake? Or is the greater threat to the state’s need to safeguard public health and the general welfare? What does the partisan divide shown by Rothschild’s data set tell us we should worry about? In Rothschild’s view, the stakes are the reputation of the judiciary for producing stable law—including, to be sure, staying out of the way of the project of progressive law—rather than channeling personal or partisan attitudes. He acknowledges that reasonable minds may differ on the fine points of free exercise doctrine. But he argues that the “most favored nation” approach is incompatible with the two main pillars of free exercise doctrine, Smith and Lukumi.
Ultimately, Rothschild recommends that the Court at least reject the most favored nation approach. Beyond this, he argues that it may be time for the Court to reconsider judicial minimalism, at least in cases in which it combines with the polarized nature of the culture war to produce malleable doctrine and lower court confusion—and judicial partisanship. Given the demonstration he provides of partisan leanings by appellate judges, as well as the dramatic alteration of the Supreme Court’s lineup, one must perhaps only dream of a resolution unaffected by the partisan effects on judging that Rothschild reveals here. Whatever happens, Rothschild has added useful evidence and insight to the concerning story of partisan judicial outcomes in an era of culture war.
RonNell Andersen Jones & Sonja R. West, The U.S. Supreme Court’s Characterizations of the Press: An Empirical Study
(August 10, 2021), available at SSRN
An independent judiciary and an independent press are two of the institutions most often associated with a constitutional democracy’s commitment to public accountability. Two of our most thoughtful Press Clause scholars—RonNell Andersen Jones and Sonja West—set out to document what the former (more specifically, the Supreme Court) says about the latter (the press), and how that has changed over time. What they found is both fascinating and disquieting.
Worried about “the fragile and deteriorating relationship between the press and the government” and what that means for the protection of press freedom, Jones and West identified every reference to the press made by any Supreme Court Justice in any opinion since 1784. They then coded each reference by content (e.g., whether the Justice addressed the press’s trustworthiness, the press’s impact on reputation and privacy, its value, its constitutional protection, and more) and by tone (i.e., whether the Justice’s reference reflected a positive, negative, or neutral characterization of the press).
This is impressive empirical work—work that has generated a rich data set that the authors will continue to mine in future scholarship (where, for instance, they plan to consider what the Court’s rhetoric means for the public’s perception of the Court, and what this in turn might mean for the protection of press freedom).
In this Article, Jones and West detail the dramatic deterioration in both the frequency and the positivity of the Court’s description of the press. Bottom line, the members of today’s Court are much less likely even to mention the press than did their predecessors. And when today’s Justices do discuss the press, they are much more likely to do so in negative terms.
More specifically, in terms of frequency, Jones and West show that “the Court is simply referencing the press far less frequently than it did half a century ago,” including fewer references that even acknowledge the existence of the First Amendment’s Press Clause. And in terms of tone, when contemporary Justices do talk about the press, they are more likely to speak about it in negative terms. In short, the Justices’ references to the press in opinions written 50 years ago were more than twice as likely to be positive than press-related references today.
Jones’s and West’s discoveries are many, with some more surprising than others. For instance, they found a significant correlation—in the past and continuing today—between Justices’ ideology and their expression of positive or negative views of the press. Over time, left-leaning Justices have been more likely than right-leaning Justices to write positively about the press, and right-leaning Justices have been more likely than their left-leaning colleagues to write negatively (with the effects even starker at both ends of the left-right continuum).
Perhaps less expected, Jones and West also learned that today’s left-leaning Justices discuss the press, and discuss it positively, much less than their counterparts of a half century ago. Right-leaning Justices today are more likely to write negatively rather than neutrally about the press, and left-leaning Justices today are more likely to write neutrally rather than positively about the press.
The authors also identify the most and least press-friendly Justices of all time, based on metrics that combine both how frequently and how positively or negatively each Justice mentioned the press. These measures led them to identify Hugo Black, William Douglas, and William Brennan as the most press-friendly Justices ever, and Byron White as the least press-friendly. Note that all four are among the longest-serving Justices and that the tenure of all four overlapped at least in part during what some call the Press Clause’s “Glory Days” during in the 1960s, 70s, and 80s—a time when the Court decided a bevy of important press-related cases like New York Times v. Sullivan and the Pentagon Papers case (New York Times v. United States).
In contrast, that the contemporary Justices speak so rarely about the press means that it’s difficult to compare their positivity or negativity in statistically significant ways, and thus harder to identify any rhetorical press champions among today’s Justices. Clarence Thomas, the longest-serving of the current Justices, has mentioned the press most frequently, with 51 percent of those references neutral, 30 percent positive, and 19 percent negative. And while then-professor Elena Kagan extensively addressed free speech and press issues in her scholarship, since joining the Court she has rarely mentioned the press and press freedoms.
As Jones and West observe, the causes of these changes are tricky to identify, correlating as they do with changes in technology, changes in politics, and related changes in the press’s business model and economic prospects. (These changes also correlate with apparent changes in how the press talks about the Court. In Supreme Court Journalism: From Law to Spectacle?, Barry Sullivan and Cristina Carmody Tilley compare the print media coverage of Brown v. Board of Education with that of Parents Involved in Community Schools v. Seattle School Dist. No. 1 to illuminate how the press’s description of the Court’s work has changed over the last fifty years. They conclude that “while the mid-twentieth century press described the Court’s decisions largely in terms of the legal questions presented, the contemporary press seems more likely to describe the Court’s decisions in non-legal terms—as something resembling a spectacle, in which unelected judges are presumed to decide cases, not on properly contested legal grounds, but based on their respective commitments.”)
At a time when the press faces existential challenges on numerous fronts, it needs defenders willing to advocate for the value it delivers as both government watchdog and as public educator (even while the press’s defenders need not, and should not, remain uncritical of its performance). As one of many illustrations of what we lose when we lose a commitment to the press and press freedoms, Richard Hasen and Margaret Sullivan (among others) detail the evidence that a decline in local newspapers—and the accompanying decline in public scrutiny of local government—correlates with a rise in local government corruption.
And so I find Jones’s and West’s takeaway both gloomy and consequential:
At this crucial moment, when we have seen the risks of executive and legislative branch attacks on the press, our study finds that the U.S. Supreme Court is not pushing back. . . . A generation ago, the Court actively taught the public that the press was a check on government, a trustworthy source of accurate coverage, an entity to be specially protected from regulation, and an institution with specific constitutional freedoms. Today, in contrast, it almost never speaks of the press, press freedom, or press functions, and when it does, it is in an overwhelmingly less positive manner.