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.
Over the last few months, President Joe Biden has granted Temporary Protected Status (TPS) to some 300,000 Venezuelans living in the United States and 100,000 Haitians. As a result, these people will be able to remain in the U.S. without fear of deportation for another 18 months. Once again, the fate of hundreds of thousands of people fleeing oppression, poverty, and violence turned on the will of a single man. Yet, important as they were, Biden’s TPS decisions attracted little public attention beyond the community of experts and others who follow immigration issues closely. That is in large part because we have grown so used to the idea that enormous swathes of immigration law and policy are under the control of the White House. The recent TPS decisions are just the latest manifestation of this trend.
Adam Cox and Cristina Rodríguez’s book The President and Immigration Law is likely to become the definitive work on the growth of executive power in this field. As they describe, the executive branch has come to wield vast discretionary power over immigration policy, even though nothing in the text or original meaning of the Constitution grants the president that power. At the time of the Founding, the dominant view was that the Constitution did not give the federal government any general power to exclude and deport immigrants at all, much less that such authority would come to rest in the hands of a single person and his subordinates.
When the Alien Acts of 1798 gave the president broad power to deport non-citizens he deemed to be dangerous, such luminaries as Thomas Jefferson and James Madison argued that it was unconstitutional, and successfully prevented the Alien Friends Act from resulting in any deportations before it was allowed to expire in 1801. For a long time after, the federal government exercised very little power over immigration, though states were more active.
Over time, that changed. As Cox and Rodríguez explain, the executive has gradually acquired “extraordinary power over immigration policy” due to a combination of extensive delegation by Congress, and the enormous size of the undocumented immigrant population subject to deportation (some 11 million people). Since there is no way to deport all of the latter or even come close, presidents end up wielding vast discretion over who to target and why. Cox and Rodríguez’s book insightfully analyzes the growth of executive authority, and the ways in which presidents of both parties have used it—sometimes to give a reprieve to favored groups, and other times to engage in brutal enforcement actions that consign large numbers of people to lives of poverty and oppression.
In a series of insightful chapters, the authors explain how the presidency gradually “sidelined” previously dominant state authority over immigration, asserted greater power over the federal enforcement bureaucracy, and—perhaps most of all—increased its power at the expense of Congress. They are careful to explain that Congress’ role has not been superseded entirely. However, the White House has, on their account, become a “co-principal” with Congress in the development of immigration law and policy. Crucial to these trends has been the growth of a vast “deportation state,” largely under the control of the executive, and what Cox and Rodriguez refer to as the “shadow immigration system.” The latter is a combination of congressional delegations and executive power grabs that enable the White House to exercise enormous discretion over who is let into the United States in the first place, and who is subject to deportation afterwards.
This wide-ranging discretion can cause enormous harm, as with Donald Trump’s cruel anti-Muslim “travel ban” and his child separation policy. Even when exercised more humanely, executive control over immigration is an affront to the rule of law, for reasons well-explained by Daniel Farber, in his contribution to a Yale Journal on Regulation symposium on Cox and Rodriguez’s book.
Some of this discretionary power is just one part of a broader problem with our legal system. There are far more laws than any administration can possibly enforce, and far more lawbreakers than can ever be caught and prosecuted. As a result, a large majority of adult Americans have violated federal criminal law (to say nothing of state law) at some point in their lives, and could potentially be prosecuted. Undocumented immigrants are far from the only people who live on the sufferance of executive discretion. But the immigration situation is particularly severe, because of the grave consequences of deportation, and the weakness of due process protections in the immigration enforcement system.
Cox and Rodríguez propose reforms that could help address the problem of excessive executive discretion to deport and exclude migrants. Most of all, they argue that Congress “must drastically decrease the number of people who live under the threat of enforcement” by legalizing the presence of at least a large part of the undocumented population. They also suggest giving the president greater discretion to admit and legalize new immigrants, in order to counterbalance the present wide-ranging discretion to deport and exclude.
If implemented, these ideas would be useful steps in the right direction, especially that of legalizing currently undocumented migrants. But, for reasons I explained in my contribution to the Yale Journal on Regulation symposium, I fear they do not go far enough. In my view, the authors undervalue the need to strengthen judicial review of immigration policy (which currently tolerates egregiously unconstitutional practices that would be struck down in almost any other field) and especially the necessity of making it easier for migrants to legally enter the United States in the first place. The latter is the only way to truly tame the vast growth of executive power over immigration policy and the threat it poses to the rule of law.
Cox and Rodriguez are also sometimes overly optimistic about the good that can be accomplished through more benevolent exercises of executive authority. Recall the example of Biden’s grant of TPS status to Venezuelan and Haitian migrants. As welcome as it is, the beneficiaries still must live with the specter of its possible revocation within 18 months. That makes it extremely difficult for them to plan their lives for the long-term, reduces the contribution they might make to our economy and society, and generally makes their position insecure. What the White House giveth, it can all too often just as easily taketh away.
To their credit, Cox and Rodriguez suggest alleviating this problem by passing legislation giving the president the authority to grant at least some types of otherwise illegal migrants a “legally secure form of residence.” But it may be difficult to create and maintain a system under which the executive can grant security that he cannot readily take away. Such asymmetrical discretion is potentially feasible, and might be a lesser evil relative to the status quo (though still not as desirable as simply giving a much larger class of migrants nondiscretionary legal rights to enter and live in the United States). But it might also turn out to be an unstable equilibrium. Moreover, so long as the power to grant reprieves from entry bans or deportation remains under exclusive presidential control, a president hostile to immigration can simply choose not to exercise it.
Despite these reservations, The President and Immigration Law is a major contribution to our understanding of the presidency, immigration law, and separation of powers. It should be of great value to immigration experts and constitutional law scholars alike.
Parts of this piece are adapted from a symposium piece on The President and Immigration Law, written for the Yale Journal on Regulation.
David E. Pozen & Adam M. Samaha, Anti-Modalities
, 119 Mich. L. Rev.
A specter is haunting modern American legal scholarship—the specter of branding.
Whether it is a marketplace of ideas or just a marketplace, legal scholarship today overflows with neologisms, “I call this”-es, and other efforts to hawk our wares to law review editors and, perhaps, other scholars. Useful at times, branding is often unnecessary or silly. It routinely announces a purportedly un-noticed phenomenon that in reality fills whole library shelves. (One awaits with resignation the inevitable article proclaiming, “I call this activity, in which two parties reach a binding and often memorialized exchange of promises, agreementification. It urgently deserves closer study.”) Given the frequency with which legal scholars treat as “new” arguments or observations that were old before they were born but lie outside Westlaw’s reach, branding often involves neither new wine nor new bottles, but old wine in old bottles with a new label slapped on. It is bad enough if these efforts are cynical, worse if they are not, and perhaps worse still when they are a bit of both. We might call this the Late Capitalism-ization of legal scholarship.
With that cheerful preface, it is a pleasure to see a new label that actually performs a useful service, spotlighting something we might otherwise neglect. It is doubly pleasing because the article neither celebrates nor condemns what it labels. It walks us through the phenomenon with a proper sense of its nuances and its costs and benefits. Written by David Pozen and Adam Samaha, Anti-Modalities exemplifies the difference between a meaningful scholarly label and a mere marketing gambit.
Constitutional lawyers are familiar with the modalities of constitutional argument: the “forms of argument that are considered legitimate within the legal profession for establishing propositions of constitutional law.” In Philip Bobbitt’s words, they constitute the “legal grammar” of constitutional law. Constitutional law teachers inevitably teach these modalities, trying to instill in their students a sense of the kinds of constitutional arguments that will be legible to judges and other lawyers.
From this starting point, Pozen and Samaha ask: What sorts of recurring modes of constitutional argumentation are illegible and unacceptable? In particular—to distinguish them from altogether irrelevant arguments (“What does the arrangement of sculpture in the Uffizi tell us about the Seventh Amendment?”)—what arguments are excluded even though they “seem relevant to the controversies that constitutional law is asked to resolve?” Are they actually excluded, or do they find their way in to modal argument anyway? In what form? And what are the costs and benefits of the “gap” between what is permitted and what is excluded? As they note, anti-modal constitutional law arguments are not bad in themselves. And they are common, both in general conversation and in lay public discourse on constitutional law itself. The result is that “the anti-modalities,” for good and ill, “shut out of constitutional law virtually all the arguments that drive most citizens’ views on most matters of public concern.”
Like the Council of Elrond, Pozen and Samaha counter the six canonical constitutional modalities identified by Bobbitt with six constitutional anti-modalities, ordered by “how frequently decisionmakers are accused of employing them.” They are: 1) “Policy arguments,” which are common in debates over “public policy and political morality” but “seen as out of bounds in debates over the Constitution’s meaning.” 2) “Fundamentalist arguments,” which “draw directly on deep philosophical premises or comprehensive normative commitments.” 3) “Partisan arguments,” which “express a preference for a particular political or social group” for reasons not dictated by the Constitution itself. 4) “Emotional arguments,” “indisputably pervasive” in life but rendered suspect in law by the norm of reasoned elaboration. 5) “Popularity arguments,” which appeal directly to “the perceived popularity” or unpopularity of a proposition in arguing for a particular constitutional meaning. 6) “Logrolling arguments,” which consist of various trading or compromising techniques.
A typology of common anti-modalities is valuable in itself. But Pozen and Samaha go further, noting that, like most taboos, the anti-modalities inevitably find their way back into acceptable forms of constitutional argument in “diluted and disguised incarnations.” Thus, a straight fundamentalist appeal is sufficiently anti-modal to have been easily parodied by John Hart Ely (“We like Rawls, you like Nozick. We win, 6-3.”). But one might “hitch [such] an arguably anti-modal argument to a modality” by insisting that the Constitution “calls for a presentist inquiry into moral norms.” Typically, moreover, the return of the repressed argument calls for it to be domesticated or “modified.” Rather than bring to bear all the tools of sophisticated policy analysis, for instance, courts will employ “second-order” terms like “manageability,” or make broad-brush claims about consequences, ungrounded in serious data or analysis. In short, they assert, “American constitutional practice has developed an impressive array of norms to wall off the use of anti-modal reasoning”—and “a subtle set of gateways for letting in certain stripped-down versions of that reasoning in certain cases.”
One could easily imagine an article on this subject insisting that anti-modalities should be excluded, or conversely that such borders are artificial and must be torn down. (One need not “imagine” a scholarly article that simply accuses an adversary of anti-modal argument, or one that engages in anti-modal argument despite being ostensibly in the game. Both are common.) Pozen and Samaha avoid both poles.
They argue that the wall between modal and anti-modal argument, even if porous, has value. Blocking anti-modalities from constitutional law argument stops it “from devolving into normative argument, full stop.” Law—even constitutional law—is a profession, a practice, and an institution. Like all such institutions, it needs to be bounded and disciplined if the enterprise is to be conducted with coherence and integrity.
On the other hand, the wall “move[s] constitutional decisionmaking some distance from what people usually care about.” It leaves constitutional law “without the resources to reckon, seriously and explicitly, with some of the most significant dimensions of social problems.” Its participants, “unable to address such matters directly, . . . endlessly accuse each other of manipulation and misdirection.” And the channeling of the professional discourse of American constitutional law leaves its practitioners caught between in an interesting way. On one side, the insistence on modal reasoning encourages lawyers, who are accultured to view serious policy tools as anti-modal and are not trained to use them, to treat nonlegal expertise as “sociological gobbledygook.” On the other, the gulf between modal constitutional argument and common discourse leads to its “alienation and mystification for ordinary Americans,” and to constitutional lawyers’ alienation from ordinary Americans.
That is a particular problem for constitutional law, with its customary mix of high and low politics and policy. The “between” in which constitutional lawyers reside is almost a caricature of a certain kind of cognitive and social elite. Neither part of the general populace nor possessed of reliable technical knowledge, they resemble a wealthy alchemists’ guild that has somehow managed to hang on into the atomic age. “Put crudely,” they write, “constitutional law cannot survive as a legal discipline without the anti-modalities, and it cannot thrive as a political practice with them.”
Pozen and Samaha argue that despite its advantages, the downsides of “the status quo regarding the anti-modalities” counsel reform. They offer two speculative options. One is to “narrow the gap” between modal and anti-modal discourse about the Constitution, “connect[ing] the forms of constitutional argument to whatever people honestly and deeply care about with regard to matters of public concern.” The other—their own preference—is to “accept the resonance gap in principle, and strive to reduce its importance in practical terms,” by “reducing the footprint of both judicial review and supreme constitutional law.” Both proposals are thought-provoking, if secondary to the goal of “clarify[ing] the core tradeoffs” involved in the system of modal and anti-modal argument in constitutional law.
I worry about two possibilities, neither of which is fully discussed in this already full article. One has to do with the imperial reach of legalistic discourse. The “gap” that Pozen and Samaha describe arises from a view of constitutional law in which modal argument “shut[s] out . . . virtually all the arguments that drive most citizens’ views on most matters of public concern.” Insofar as Americans tend to see every political issue as a legal issue and every legal issue as a constitutional one, one might fear that “most citizens” themselves, in aping lawyers’ argumentative forms, will themselves take on the habits of modal discourse, or at least a bastardized version of it—including its exclusion of anti-modal forms of argument. On the Internet no one knows you’re not a lawyer, and a great many public arguments are conducted in a legalized form that neither mitigates sharp partisan feeling nor speaks its concerns openly. We may all end up alienated: severed from the capacity to engage in open talk on matters of public concern in a way that is free of the argumentative restrictions that make sense only in a narrow precinct of our society and its institutions.
Institutions themselves are the other concern, in two ways. First, as Pozen and Samaha write, “professional argumentation” unavoidably requires “some method.” That professionalism or disciplinarity undergirds the maintenance of included and (more or less) excluded modes of argument. An engineer knows when she is talking about the structural integrity of a bridge and how to talk about it. She and her colleagues can easily distinguish between that discussion and an argument about critical urban theory (a phrase I made up but which, of course, exists). Constitutional law may be a profession or discipline. But it is less clearly defined and bounded than many others, making boundary maintenance more difficult.
That difficulty will increase as law, like other institutions, experiences a contemporary weakening of attachment to or trust of institutions and disciplinarity as such. To the extent that what we are seeing today, in law and other disciplines, is not simply an effort to change the boundary or bring some anti-modalities into the modal space, but a rejection of boundaries as such and of the authority of those who collectively regulate modal space, one may worry that Pozen and Samaha’s typological effort will be like trying to draw a map in the sand at high tide. Pozen and Samaha’s project is descriptive and nuanced. But it may be that developments outside their endeavor—namely, a loss of faith in technē and in argument and argumentative boundaries—are pressing in ever closer on the whole enterprise.
A second point is closely related. Pozen and Samaha worry that “the anti-modalities both reflect and perpetuate the intellectual insularity of mainstream legal culture,” that their subtle entry into constitutional decisionmaking “only make[s] ‘the constitutional-law game’ more complex and impenetrable to nonspecialists,” and that this is one source of “legal estrangement” between lawyers and “nonelites.” Insularity born of the exclusion of the anti-modalities is indeed one sort of problem. But code-switching is another.
All sorts of platforms, and especially social media, allow and encourage constitutional lawyers to make anti-modal arguments on public questions of a constitutional nature, or—perhaps worse—to engage in a mix of modal and anti-modal arguments. They do not disclaim any professional status in these forums; most of them trumpet it (and would be ignored if they didn’t). They do so without any necessary skill in the anti-modalities, and without making clear what role they are playing and whether particular arguments are modal or anti-modal. One might think that anti-modal engagement on public issues in public spaces would reduce the “resonance gap” that worries Pozen and Samaha. But the mixture of modal and anti-modal argument by constitutional lawyers in these spaces may, as they suggest, add to the impenetrability of constitutional law. The very privilege of code-switching at will, while still loudly asserting one’s status as a professional player of the game, may exacerbate rather than narrow legal estrangement between elites and nonelites. And the lack of clarity about what role these elites are playing, personally or argumentatively, may sap institutional trust in “mainstream legal culture” and thus widen the gap further.
This observation is not meant to insist on the value of insularity or the need for stricter boundary maintenance between modal and anti-modal argument. And it may be consistent with the authors’ proposal to narrow constitutional law’s domain altogether. But it also suggests that, whatever the list of modal and anti-modal argument contains and whatever rules of boundary maintenance apply, the whole enterprise depends on some degree of institutional as well as public health. It is not clear we can count on either. Pozen and Samaha worry that the anti-modalities prevent “constitutional law” from reckoning properly with significant social problems. But we might also worry about a “constitutional law,” understood as part of an institution or discipline, whose practitioners address those problems more directly, but in the process lose any capacity to maintain themselves as a discipline, and squander whatever remaining trust people have in the institution.
The world of argument set out in Pozen and Samaha’s descriptive and analytic project may thus be beset on all sides. But it is a worthy project in itself, containing a fine mix of example, description, and speculation, positive and negative. To return to the beginning, it is an exemplar of the difference between scholarly labels that enhance our understanding of the world of social and discursive practices we inhabit—and mere branding, which simply sells us a product we already own.
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