Slavery is deeply imbedded in our nation’s history, economy, and law. The legacy of slavery is readily apparent in the disproportionate poverty of people of color and the new Jim Crow regime in our nation’s criminal justice system. Yet our country has never engaged in any sort of reconciliation process, let alone a reparation process. Recent years, however, have been marked by attempts to reckon with the history and legacy of slavery in the United States. In southern cities, local officials are debating whether to remove statues of confederate officials from public spaces. Those statues symbolize, and arguably celebrate, our nation’s legacy of slavery and racial discrimination. Removing the statues may ease the dignitary harm they cause but mask the ongoing impact of the legacy that the statues represent. In Citing Slavery, Justin Simard reveals how the legacy of slavery in our common law is hidden in plain sight. Lawyers and legal scholars know the legacy of slavery in our society but have failed to confront its impact on our common law.
Historians and legal scholars have been commemorating the 150th anniversary of the abolition of slavery and the establishment of fundamental rights for freed slaves during the Reconstruction Era. As part of this commemoration, historians are currently engaged in an ongoing debate over the extent to which slavery permeated our nation’s founding, and our constitution. In The New York Times, the 1619 Project commemorates the 400 years since the beginning of the slave trade in the U.S., fostering a debate over whether the focus on race sidelines the economic exploitation of the system of slavery. In Citing Slavery, Justin Simard makes a crucial contribution to the conversation about the impact and meaning of slavery on our legal system by pointing out the extent to which slavery permeates our nation’s basic principles of law. Like the confederate statues which force us to confront our past, Simard’s revelations force us to confront the question of how to treat law based on the tainted foundation of slavery.
In Citing Slavery, Simard shows that despite the fact that the Thirteenth Amendment abolished slavery over 150 years ago, lawyers and judges continue to cite cases involving enslaved people in the present day. This comprehensive and thoroughly researched article lists hundreds of opinions citing slave cases in the last three decades. It also addresses how cases involving slavery are included in legal treatises to illustrate basic principles of our common law. From property to contract law, commerce to inheritance law, the law of slavery permeates the U.S. legal system.
Moreover, judges today regularly cite cases involving enslaved people without acknowledging their presence. Sometimes judges discuss the facts of cases detailing the brutality of slavery without comment, focusing only on the legal principles to be discerned from the case. Simard argues that both descriptive and normative harms result from judges routinely citing cases involving enslaved people. First, those cases are questionable as legal authority. Second, continued reliance on cases involving slaves inflicts dignitary harms on the enslaved people involved in the lawsuits as well as their descendants. The formalism in these opinions masks the racial injustice imbedded in our law.
Nineteenth-century courts distinguished between the relatively few cases that directly regulated slavery and the vast majority of cases that indirectly involved slavery. The cases expressly regulating slavery are no longer good law after the Thirteenth Amendment abolished the institution. Simard goes further, arguing that all cases involving slaves are questionable legal authority because they remain implicitly premised on the validity of slavery. For example, slaves could not be inherited unless viewed as property, and masters could not recover for harms done to their slaves unless masters held a property interest in the slaves. Simard also points out that white supremacy affected the outcomes of cases involving slaves, further undermining them as legal precedent. Nonetheless, modern-day judges routinely cite them to support foundational common law principles. Ignoring the slavery roots of common law rules warps our system of legal precedent.
Overall, Citing Slavery illustrates how law provided a framework that legitimized the brutality and inhumanity of chattel slavery in our country. Our nation’s system of commerce depended on slavery, and law governing commerce was thus immersed in the commerce of slavery. Southern lawyers adapted common law rules to govern the system of slavery, and those rules affected the national legal system; northern lawyers shared in the focus on technical rules and customs that masked the inhumanity of the underlying facts. Prioritizing legal rules over the enslaved people affected by those rulings further deepens the injustice in our legal system. The failure to excise slavery from our nation’s jurisprudence perpetuates white supremacy and causes continuing harm, reflected in the historic exclusion of people of color from the legal profession and their under-representation today.
What should lawyers to do to make amends for our continued reliance on the law of slavery? Simard urges lawyers to directly confront the role that slavery plays in the cases upon which they rely and the extent to which this undermines the decision’s precedential value. Simard makes an analogy to the Supreme Court case of Korematsu v. U.S., in which the Court upheld the forced removal of Japanese Americans to detention camps during World War II. Even before Chief Justice Roberts declared it “overruled in the court of history” in 2018, lawyers were loath to cite the case due to its horrendous facts. “Only by confronting slavery’s past can we learn from and attempt to address its costs.”
An open and transparent approach to slavery in our law can play the same salutary role that universities and communities debating whether to take down confederate statues are engaging in as they confront their institution’s connection to slavery. Simard also suggests that legal research tools and the Bluebook should implement a citation system that identifies precedents based on slavery. Finally, he urges state and federal authorities to publicly acknowledge the legacy of slave law.
Reckoning with the legacy of slavery in our law would indeed be an important first step to remedying the racial injustice that permeates our society. As William Faulkner notably observed, “The past is never dead. It’s not even past.” Justin Simard proves Faulkner right in Citing Slavery. The law of slavery is both omnipresent and hidden over 150 years after our country abolished slavery. Simard points the way towards reckoning with the past.
In Sand and Blood: America’s Stealth War on the Mexico Border, John Carlos Frey shows the reader a story about life, death, and a void in the reach of law to human need. Frey tells of a government-orchestrated disaster, shocking but unseen, that has been under way at the Southern border for decades. As a journalist of Mexican origin and paternally derived U.S. citizenship, Frey delivers a vivid and partly personal account of the human tragedy purposefully and soundlessly inflicted on poor Hispanic arrivals—a tragedy that should sear a vivid image of horror into our collective memory. For many years, Americans have known of the grudging welcome extended to our Southern neighbors but little of the corresponding human consequences. The result has been a void in both cultural awareness and legal doctrine. Over time, a public theater of immigration control, balancing the needs of politicians, business interests, and law enforcement, has shunted aspiring immigrants into a dystopia, planned by bureaucrats but given effect and form by human desperation, avarice, and menace.
Pursuing the human drama in the void, Frey paid smugglers working in Mexico for the Sinaloa cartel to take him on a trip through the Mexican desert to the U.S. border. He depicts a brutal ride in a van packed with men, without seating. The cartel business model Frey experienced responds to a market opening created by a blank place in our American conception of legal order (P. 103.) The cartels run “sophisticated operation[s] capable of monitoring U.S. law enforcement activity to ensure that migrants crossed the border successfully.” (P. 108.) Frey’s guide, as they neared the border, used “binoculars, what appeared to be a satellite phone, and a cell phone…[for] communicating with someone who knew the whereabouts of Border Patrol agents on the U.S. side.” Frey endured a gun in his face by a cartel member charged with assuring he had not captured images of cartel members. “If they had [found images], I’m sure they would’ve killed me on the spot.” The cartel members are unemotional about their business, in contrast to those border patrol agents who have adopted emotional views of the quarry. The exception in the business model pitting emotional border agents against pure business logic is the expectable corruption—agents who take bribes to look away as guides move migrants into the U.S. (P. 104.) Everyone—almost everyone—gets a little something from the unwritten rules.
Frey provides a historical review of policymaking over time: from a few early Border Patrol agents on horseback to the grander visions of politicians who realize advantage in treating Mexicans and Central Americans as invaders, with labels classifying them as criminals. The border militarization began in earnest in the 1980s with walls constructed where casual gatherings of Americans and Mexicans once picnicked. (P. 20.) Frey provides a chilling narrative of a plan wrapped in a deadly abstraction: to use death as a tool of immigration control. The creative labeling of laws helps support a war footing. President Trump has supplemented rally rhetoric about invaders with the Victims of Immigration Crime Engagement Office, a program with “objectives” that “seem to conflate immigrants and criminals.” (P. 180.) As such, Frey concludes that the border has become “for all intents and purposes, a war zone.” (P. 195.)
In this context, Frey gives a history lesson about humanity moving through a physical space that courts cannot situate in the doctrines of sovereign states. Many of the deaths and other violations occur on U.S. soil. Even here, we find a liminal state defined as “situated at a sensory threshold: barely perceptible or capable of eliciting a response.”
As Frey describes the transition to an infrastructure of militarization—one gradually brought about by presidents starting with Bill Clinton and proceeding to Trump—he arrives in a descriptive cul-de-sac containing the void of law. In a world where federal control over immigration is constitutionally dubious and a national security military rationale spreads into that liminal space at the border, Frey finds and narrates the non-place in the constitutional order.
In 2010 and in 2012, U.S. border agents shot across a border, both times aimlessly killing a Mexican child on the Mexican side of a line drawn by artifice and not nature. The space, physical and conceptual, containing the lifeless bodies of Mexican children does not support connection or clarity. Law is a presence in the scribblings of courts and lawyers, but human reality on the ground disappears into legal briefs, trial court opinions, panel and en banc opinions, Supreme Court remands, and oral argument at the Court with justices fretting about “possible foreign policy implications” of allowing relief for a cross-border shooting.
In the liminal spaces around the border where immigrants contend, defenseless, with hostile U.S. border agents and mercenary coyotes, and spaces outside schools and courts where ICE agents snatch parents, also defenseless, from children, or children die to police violence held justified, both law and human connection are fragile. The stories of tragedies lost to law or common feeling pose an issue of empty spaces, barren spots in which it is ordinary to die or be seized by state power or criminal forces. These geographies lie outside the care of human feeling or the reach of comprehensibility to law.
Using his well-honed journalism skills and his personal narrative, Frey seeks to remedy the gap in general understanding and legal sight. He describes an enchanted spot on the border where he once played hide-and-seek as a prank on Border Patrol agents. (P. 2.) Notably, the 2012 incident in “ambosNogales” occurred after children were pranking agents guarding the line. No one is laughing today, and few outside ambosNogales weep. Uncertain of its domain, law hesitates.
After a theater of immigration control in the 1980s and 1990s sought to balance the interests of defense contractors and of businesses requiring cheap labor, Frey noticed a change. The border became the scene of a life-and-death exercise in a war against the poor. Toleration for the antics of kids diminished, while application of “the machinery of war” and “Death as Deterrent” techniques increased. A law called the Secure Fence Act, and programs with names like Operation Gatekeeper, drove migrants away from safe passage and into death traps in the desert and in the All-American Canal—a watery grave that became “the deadliest body of water in the country.” (P. 84.)
Deaths began to accrue long ago, as the border was fortified with a deadly intention to “raise the cost” of passage to those in search of safety, work, and family. Cost means death from dehydration or drowning. The bodies go into potters’ fields— marked “unidentified”—or simply disappear. There is no personal witness or official record of the human toll. “Poor Joshua” does not become “Poor José.” No exclamation observed sorrow. No shared cultural moment of American shock at anticipated welcome thwarted by death.
Within our constitutional framing for incorporating knowledge within the legal order, is there a basis for revelation in case law of events that lack cultural salience inside the nation? What of law as a discourse in which the void of empathy might be addressed? Frey, a journalist but not a lawyer, combines legal terms with journalism to highlight the void:
U.S. policy at the border also seems to have bypassed the Constitution. It is a zone where inspections can happen to anyone without probable cause and use of force can go unchecked without repercussion. Immigrants both legal and undocumented have been stripped of civil liberties, and the violations continue–to the point of the removal of children from their parents or even death. (P. 8.)
Frey is well suited to help us sound the shock of the reporter’s witness to this welcome-turned-disaster. He provides a narrative of the convergence of cultural racism and constitutional precepts supporting the enactment, and repetition by an unlettered president, of a repeated human catastrophe at the Southern border. The denial of welcome takes forms other than death, but the destruction of human expectation, wrapped in law, cruelty, and purported superior caste is a shock when translated by a skilled narrator.
Due process, under the Fourteenth Amendment, constrains state power when brought to bear on U.S. citizens and also constrains what states may do to “persons.” But in the liminal spaces in which citizenship and personhood confront a sovereign’s line in the sand, the constitutional niceties yield to a brute force delivered by human agents often immersed in a culture of race-themed hostility, backed by claims to sovereign might and to the “rule of law” as a commitment to our liberal order. In the liberal order, justices fret about the legal “line” they feel sworn to hold firm. How can there be a line—a thing imaginary—that leaves room on the side of justice just this once, but not again or not much? In Hernandez I, Justice Breyer tried in dissent to rub away a different line, the one in the sand: the place of death for the child is a limitrophe, an area created by “engineer’s ‘imaginary line,’ perhaps thousands of miles long, but having ‘no width.’” It also, he tells us, is a voisinage, a place of “cooperation and good neighborliness”—of law and human connection. Yet Frey has taken us to an empty space of sand and blood, given a shape by lines pitiless in law and on earth.
Legal scholarship presents an un-narrated depiction of a legal void: Where is the constitutional authority to restrict immigration? Ilya Somin has surveyed the absence of a textual basis and the weakness of other arguments to fill the constitutional gap. Original meaning provides no help. At the founding, the U.S. needed a population, and there was no attempt to stop immigration until racism emerged with the Chinese Exclusion Act of 1882. Even today, an absence of legal perception and narrated human response exists at the Southern border. The missing text constructs a moral absence, which leaves the constitutional order afflicted with fill-ins, such as the disorder of nativism and the logic of warfare. The morally barren charter for welcome—or not—even reaches inside our borders with federal enactment of terroristic raids by Immigration and Customs Enforcement agents.
This conceptual void is occupied by lawlessness and thuggery masquerading as law and order. The void is the basis for a slow-moving, intentional, and unheralded destruction of humanity in transit. Under the Equal Protection doctrine, an intention to harm a group out of hostility to the group constitutes wrongful discrimination. But the status of persons who die outside U.S. territory, even if the agent of death acts on U.S. soil, occupies an occluded spot in constitutional law, a brain teaser for justices for whom legal abstraction obscures all paths to simple justice.
Where we find a constitutional empty space, we find the language of security, i.e., warfare. The “invasion” word is familiar, but its loud and repeated broadcast by the “Commander in Chief” of a security state is new. The word appears to have conscripted a citizen soldier whose language and violence in an El Paso Walmart adopted the concept of war. The void is occupied by a militarization of borderline and domestic policing, with both becoming a liminal space either outside any comprehensible claims of humanity within law, or, in an argument advocating for humanity and law, “a liminal zone of shared control with constantly traversing populations, and therefore wholly unlike purely foreign territory.” The legal void extends to American citizens re-entering the U.S. in an airport located on U.S. soil but conceptually somewhere else. Nature abhors a vacuum, and in the void of humanity and legal order, the cartels have entered. (Pp. 111-15.)
Frey’s book confronts us with difficult and urgent questions. For all, citizen and noncitizen, might liminality swallow all our shared humanity? Where will be the spaces that law will hesitate to enter? Where are the lines in the sand, in our humanity, in law’s reach?
What then-Professor Elena Kagan said in 2001 continues to hold true today: ours is an “era of presidential administration.” Modern-day presidents do not merely stand on the sidelines while agency officials run their agencies. Rather, from the Reagan Administration onward, presidents have wielded an increasingly heavy hand in dictating the course of their appointees’ day-to-day actions—monitoring, supervising, coordinating, and directing agency activities in accordance with their political and policymaking priorities. Agencies may remain the primary repositories of the powers that Congress has delegated away, but the agencies themselves have become subject to powerful forms of White House control.
As Lisa Marshall Manheim and Kathryn Watts note in this excellent new article, one of the ways in which presidents influence agency policymaking is through the issuance of orders, memoranda, proclamations, and other written directives. These documents communicate instructions from the president to a target agency, making clear to that agency’s officials that the President expects them to exercise their delegated powers in an often quite specifically defined way. More often than not, such instructions do not formally bind anyone to do anything. But when directed at officials who serve at the pleasure of the President, the demands of such “presidential orders” are seldom disregarded.
The increased use of presidential orders as a means of controlling agency action raises important questions regarding both the intrabranch allocation of power between agencies and the President and the interbranch division of powers across the federal government. But, as Manheim and Watts’s analysis makes clear, the rise of presidential administration also has raised the salience of several important procedural questions concerning the federal courts’ role in reviewing the legality of the Chief Executive’s directives. We are all familiar with the standard set of rules, doctrines, and principles that apply when agency action gets challenged in court. Ample case law guides courts’ application of, among other things, the APA’s reviewability provisions, the standing and ripeness requirements of Article III, Chevron and its associated deference doctrines, and the equitable principles governing the scope and availability of injunctive relief. But when courts confront presidential action, these principles—to the extent they apply at all—operate against a legal backdrop marked by a greater degree of precedential scarcity and obliqueness.
For most of U.S. history, this relative dearth of legal guidance has not posed much of a problem, as direct challenges to presidential orders have only sporadically arisen. This is not because presidential action is categorically or even largely immune from legal attack. Rather, it’s because past litigants seeking to challenge presidential action have tended to do so only indirectly, training their focus on the subsequent agency action that a presidential order provokes. And with the agency’s action on the books, a more traditional administrative law-based challenge can proceed. Would-be challengers to presidentially initiated action thus have tended to avoid the uncertainties and potential pitfalls of direct review by instead waiting to sue the agencies that act on the President’s behalf.
This “wait for the agency” approach, Manheim and Watts contend, has diminished in popularity during the course of Donald Trump’s presidency. President Trump’s orders concerning the so-called “travel ban,” sanctuary jurisdictions, the military’s treatment of transgender servicemembers, IRS enforcement priorities, and several other subject matters have found themselves subject to immediate and direct challenge in federal court. There has thus been what the authors call an “explosion” of litigation targeting direct presidential action, with public-law litigants increasingly “elect[ing] to challenge the legality of the President’s orders, rather than (or along with) the legality of subsequent agency action.” The heightened presence of this practice has put new pressure on the courts to develop a more structured set of doctrines to guide their adjudication of these cases.
Manheim and Watts’s descriptive thesis raises two sets of questions. The first has to do with underlying causes. Specifically, if the descriptive observation is correct, what accounts for the change in litigation practice? Why, that is, have public-law litigants suddenly shown an increased willingness to go after the President directly rather than wait for the relevant agencies to act? Part of the answer, Manheim and Watts suggest, has to do with Trump himself. While Trump by no means initiated the era of presidential administration, he has certainly embraced it with special enthusiasm, “act[ing] aggressively throughout his presidency to blur the lines between the President and the agency he oversees.” What is more, Trump has been “willing to use presidential orders to advance politically and legally controversial policies,” many of which have provoked intense public opposition while opening up opportunities for legal attack. These two Trumpian tendencies—his rhetorical tendency to “collaps[e] the distinction between presidential and agency action” and his political tendency to take the lead in pursuing divisive, controversial, and legally-suspect executive-branch policies—may be working to “invite litigants to direct their legal challenges not at subsequent agency action, but rather at the predicate presidential decisions.”
But that’s not the entirety of Manheim and Watts’s causal explanation. There is a second and somewhat complementary element that connects with two relatively high-profile and largely successful litigation campaigns: the 2014 attack on the Obama Administration’s Deferred Action for Parent Arrivals (DAPA) policy and the 2017 challenge to the initial iteration of Donald Trump’s “travel ban.” To be sure, only the latter of these two cases amounted to a formal attack on presidential action itself—the DAPA order took the form of a DHS memorandum that qualified as a “rule” under the APA—but both cases bore important similarities to the numerous challenges to presidential action that followed in their wake: Among other things, the DAPA challenge and the “travel ban” challenge concerned “politically salient executive actions;” they targeted policies at the core of each president’s political agenda, and they occurred “quite early in the administrative process.” And in both cases, the challengers achieved quick and high-profile successes. The DAPA plaintiffs not only won on the merits, but also managed to vindicate “a controversial theory of standing…that the government warned would open the floodgates for future challenges to federal policies.” And while a subsequent iteration of the travel ban would survive Supreme Court review, the initial travel-ban challenge yielded important victories for the plaintiffs on both procedural and merits-based issues. Manheim and Watts surmise that these two litigation campaigns operated as something of a proof-of-concept for the strategy of seeking immediate and direct review of presidential orders.
The second question raised by Manheim and Watts’s descriptive thesis can be simply stated: What should courts do now? Manheim and Watts do not take a strong normative position on whether the rise of challenges to presidential orders represents a good or bad thing. But they do suggest that the trend is likely to remain with us for the foreseeable future, and they urge the development of a more structured judicial approach to reviewing presidential orders.
In service of that goal, the authors conclude their article by developing a coherent but context-sensitive procedural framework for adjudicating challenges to presidential orders. This framework both derives and deviates from traditional administrative-law principles in instructive and revealing ways. In particular, the discussion considers: (1) the extent to which various timing-related limits on premature suits (e.g., ripeness, standing, finality, exhaustion, etc.) might embrace a working distinction between presidential orders that formally bind other actors and those that do not; (2) the circumstances in which courts should rely on their equitable powers as a basis for finding an implied cause of action to challenge presidential action; (3) the appropriate level of deference with which courts should review both the underlying rationality of a presidential order and any statutory constructions on which the order is based; (4) the proper crafting of injunctive relief in response to successful challenges on the merits (including the extent to which courts should address their injunctions to the President’s subordinates so as to avoid “the thorny questions that arise when courts try to enjoin a President directly”); and (5) the question whether severability analysis is ever appropriate in the context of reviewing presidential orders, given the procedural ease with which an invalidated order could be revised and reissued. On these and other issues, Manheim and Watts offer penetrating insights and persuasive conclusions, and their discussion is likely to be of great value to future scholars, litigants, and judges confronting the procedural complexities of future presidential-action cases.
Notably, Manheim and Watts are not the only public-law scholars who have grappled with the review-related problems raised by challenges to presidential orders. Several components of their analysis build on insights from an important article that Kevin Stack authored well before the recent spate of Trump-era challenges took center-stage. Their descriptive thesis is informed by Erica Newland’s impressive historical survey of the federal courts’ consideration of executive orders over the past two centuries. And their prescriptive suggestions nicely complement two other treatments of specific review-related problems to which presidential orders give rise: David Driesen’s article advocating for “arbitrary and capricious” review of statutorily-based presidential orders, and Tara Grove’s article (also recently JOTWELL-reviewed) endorsing a relatively strict-form of textualism as the appropriate method of interpreting presidential orders. Manheim and Watts’s article provides a helpful, unifying frame for this burgeoning line of inquiry, and it moves the discussion forward in numerous useful ways.
Katherine Shaw, Speech, Intent, and the President,
104 Cornell L. Rev.
__ (forthcoming 2019), available at SSRN
What happens to presidential statements in court? Recently, litigants have sought to use public statements—including tweets—by President Trump to challenge the various iterations of the travel ban, the prohibition against transgender individuals in the military, and the administration’s decision to withhold cost-sharing reductions from health insurance issuers. As Katherine Shaw makes clear in Speech, Intent, and the President, forthcoming in the Cornell Law Review, courts lack a clear interpretive framework for evaluating the president’s speech. In Trump v. Hawaii, for example, the majority largely set aside the presidential statements that the plaintiffs had assembled as proof that the President’s proclamation violated the Establishment Clause. Justice Sotomayor, by contrast, catalogued these statements in her dissent to conclude that the ban was “driven by anti-Muslim animus.”
Shaw’s is one of several new articles to take on the issue of Presidential speech in the courts. Shaw’s own Beyond the Bully Pulpit: Presidential Speech in Courts, the subject of a jot last year by Mila Sohoni, exemplified this new area of scholarship and established Shaw as a leader in the field (in addition to co-host of the fabulous Strict Scrutiny podcast). In Beyond the Bully Pulpit, Shaw argued that Presidential speech was mostly aimed at “political storytelling” and therefore inappropriate for judicial reliance. There were several exceptions, though, one of which is the subject of this article. The focus on this exception—speech used to indicate presidential intent—makes Shaw’s work timely indeed. In addition to addressing longstanding questions in administrative and constitutional law, Speech, Intent, and the President puts forth a coherent proposal for when and how courts should consider presidential speech to determine intent. Her proposal may come in handy as readers struggle to evaluate legal battles surrounding the Trump administration.
Shaw’s suggestion is simple: While judges should not rely on presidential statements to determine the “ordinary interpretation” of a presidential directive, they can and should use these statements to evaluate constitutional claims in which intent is relevant. (P. 40.) The travel ban case provides an example of this framework. In that case, Shaw says, the Supreme Court should not have used President Trump’s tweets to determine the scope of the travel ban proclamation—to determine whether it extended to Lawful Permanent Residents, for example. But it was appropriate to use the statements as evidence of improper intent under the Establishment Clause. Indeed, for the constitutional question, Shaw says, the court “erred in not taking more seriously the president’s statements.” (P. 50.)
Why the distinction between constitutional cases and “ordinary ones?” In part, the difference is institutional. Generally, our constitutional system contemplates “some executive-branch secrecy.” Congress is bound by a “norm of transparency” to open its proceedings to the public—an obligation that is underscored by the constitutional requirement that each house “keep a journal of [its] proceedings.” Agencies are also required to be transparent and facilitate public participation, reflecting the longstanding concern that unelected decision-makers might become too powerful. Presidents, however, have never been constrained by these obligations. Instead, it is the political process that keeps the executive accountable. Furthermore, there are the practical considerations: Presidential statements are made on the fly, if not on the campaign trail. The amount of presidential speech available to litigants, combined with executive-branch secrecy, invites reviewing courts to cherry-pick presidential statements and misconstrue presidential actions.
Constitutional questions are different. In these questions, individual intent is often relevant—and courts usually make no distinction between the intent of legislative or executive officials. In his controlling opinion in Masterpiece Cakeshop, for example, Justice Kennedy cited the “inappropriate and dismissive comments” of members of the Colorado Civil Rights Commission—who were “administrative” or “executive actors,” as Shaw makes clear—to assess their anti-religious bias and rule in favor of the cake shop.
Furthermore, in what Shaw calls “constitutionally inflected” administrative law cases, courts have considered the intent of an individual administrator. Accardi v. Shaughnessy, for example, concerned an Attorney General who had made public statements about a deportation case before ordering the petitioner’s deportation. While the case is famous for “the Accardi principle” (the requirement that agencies follow their own regulations), it also confirmed that speech indicating the “impermissible intent” or “bias” of a decisionmaker is relevant when the due process clause is concerned. (P. 29.) Cases like these make clear that individual intent is important when examining allegations of unconstitutional bias. Because there is no constitutional indication that presidential intent is irrelevant—in fact, Shaw says, the Constitution may provide an “affirmative constitutional warrant for considering presidential statements and presidential intent in constitutional cases,” because there is no “speech and debate clause” protecting presidential speech—courts can and should consider presidential statements in constitutional cases like the travel ban case. (P. 45.) This is, as Shaw points out, a particularly important question right now. In the Ninth Circuit’s 2018 opinion on the President’s rescission of President Obama’s Deferred Action for Childhood Arrivals (DACA) decision, which the Supreme Court will decide this term, the panel accepted tweets and statements from the President as “evidence of discriminatory motivation” underlying the rescission.
While this issue has recurred in recent litigation against the Trump administration, it is not a Trump phenomenon alone. Presidential speech sits at the intersection of the growth of executive power and the development of what scholars call the “rhetorical presidency” or the “bully pulpit,” the use of public speech as an expected form of presidential governance. The rise of new media and communication technologies have facilitated this transformation. Now, presidents share political statements on the White House’s website, as well as on social media services like Twitter, Facebook, and YouTube. It is no surprise that these statements make their way into the courts. As such, Shaw’s article is as timely as it is interesting.
Shaw’s focus on constitutional questions means that her framework does not address some of the most newsworthy issues of Presidential speech. As she admits, the issue of how the president’s speech might be used to show intent in, say, an investigation into his obstruction of justice remains outside the scope of the article. Moreover, as in any situation in which courts use speech to show intent, one wonders about the unintended consequences. Would administrators keep their more damning speech off-line, concealing any evidence of their intent from judicial scrutiny? In the presidential context, this seems unlikely (or, perhaps, desirable). But what about Mr. Accardi, the immigrant who used the Attorney General’s speech—a pre-circulated list of people who should be deported—to argue that the immigration service was impermissibly biased against him? An Attorney General, or a President, could have just as easily kept the list private, circulating it only to the immigration officials he needed to get the job done. Are there some cases when judicial scrutiny could promote executive secrecy? Given her development of this subject, we have every reason to expect that when scholars take up these and other questions, Prof. Shaw will lead the way.
The government enjoys enormous capacities to collect, publish, and disseminate a vast array of data. In a healthy democracy, we hope and expect that the government will share that information to inform, encourage, and inspire the public’s debate and dialogue. Indeed, as Jack Balkin suggests, democratic states should aspire to be “information gourmets, information philanthropists, and information decentralizers.” Too often, however, the government instead skews or stifles the public’s discourse by manipulating data or by denying access to it.
Nathan Cortez adds to our understanding of these dangers by describing the government’s instruments of information control—what he calls “information mischief”—along with their uses and abuses. More specifically, Cortez identifies these tools to include stripping certain online data, terms, and topics from the public domain; abandoning data collection in key areas; censoring scientists and other data experts employed by the government; and invoking transparency as a pretext for declining to cite and rely on sound science (Cortez describes this as “weaponizing transparency”).
Distinguishing the government’s “information that purports to be truthful and objective” from the government’s “messaging that we expect to [be] more subjective,” Cortez focuses on the former. The government’s “[i]nformation that purports to be objective and truthful,” Cortez asserts, “should endeavor to be both.” To this end, Cortez has called upon government agencies to understand themselves as data “stewards”—in other words, “as sentinel[s] that help maximize the quality of data inputs and outputs via tailored procedures.” In earlier work, Regulation by Database, Cortez recommends a range of practices through which the government can ensure that its databases are “reliable, useful, and fair.”
To illustrate what not to do, Cortez documents examples aplenty of the Trump Administration’s information mischief. The federal Occupational Safety and Health Administration (OSHA) no longer publicizes its enforcement sanctions, information that past administrations had highlighted to expose and deter violations of workplace health and safety law. In 2017, the U.S. Department of Agriculture (USDA) removed online public data about inspections and potential violations of the Animal Welfare Act; the department re-posted many of these records after a 2018 congressional report “directed the USDA to restore the data, noting that its removal had violated previous directions from Congress.” And, as Cortez further explains, the Trump Administration stopped publishing documents that shed light, in different ways, on who has access to government power: the ethics waivers granted for lobbyists appointed to federal positions as well as the White House visitor log. These are just a few of many illustrations.
As I’ve explored elsewhere, the government sometimes seeks to manufacture doubt about factual assertions it perceives as inconsistent with its policy or partisan preferences through its expressive choices that include falsehoods and misrepresentations as well as attacks on individuals and institutions that challenge its preferred narrative. Bu the government’s speech of this type is even more dangerous when accompanied by its efforts to control the information available to the public in the ways that concern Cortez. Consider, as a recent example, Trump’s unsubstantiated claim that Alabama “would most likely be hit (much) harder than anticipated” by Hurricane Dorian, followed by reports of the Administration’s directives to National Oceanic and Atmospheric Administration meteorological experts not to contradict the President’s assertions.
To be sure, the Trump Administration is by no means the first to engage in information mischief—although its efforts in this regard may be different in degree and perhaps in kind from those of previous administrations. Nor is it likely to be the last. Robert Lopresti recounts one of many examples in his book When Women Didn’t Count: in 2004 the Bureau of Labor Statistics “became involved in a controversy related to what some interpreted as a deliberate attempt by George W. Bush’s administration to conceal information of which it disapproved” when it announced its plan to halt the collection of data about women’s participation in major industries. And although Cortez applauds the Obama Administration for adopting coherent information policies that emphasized a commitment to transparency, he also notes that Administration’s oft-criticized resistance to FOIA requests.
What can we do to curtail the government’s abuses of its tools of information control? Cortez sketches a range of options. He wonders about administrative law possibilities like hard look review under the Administrative Procedure Act: “If the agency’s record can be undermined by evidence of information mischief, it might invite courts to invalidate the agency’s efforts—or at least trigger more searching review.” He flags the federal Information Quality Act that, among other things, allows aggrieved parties “to seek and obtain correction of information maintained and disseminated” by government agencies. Also helpful is the Whistleblower Protection Act, amended in 2012 to protect government employees’ disclosures about “any effort to distort, misrepresent, or suppress research, analysis, or technical information.” Perhaps more promising, in Cortez’s view, are nonlegal tools. Some are internal to the government, like robust agency policies and norms for principled information control practices. Others are external, like third parties archiving, and thus protecting, data.
Cortez’s paper demonstrates the continuing need for careful study of, and attention to, the government’s information policy—which he understands to mean an administration’s formal policies, as well as its discretionary decisions, about whether, when, and how to collect and disseminate information. And although Cortez’s work sounds primarily in administrative law, it also informs constitutional law by documenting threats to the informed public opinion necessary to a healthy constitutional democracy. As Cortez concludes: “It is unclear the extent to which legal and nonlegal tools can provide meaningful constraints on an executive interested in exploiting its power over information. The most powerful tool may be to fight information with information, drawing attention to these practices and archiving important information.”
A stellar article by William N. Eskridge, Jr. makes important contributions to our understanding of the meaning and history of sex, discrimination, and big- and small- constitutionalism. Published on the eve of the Supreme Court’s hearing of blockbuster cases about whether gay and transgender people are protected under Title VII’s prohibition on discrimination “because…of sex” (R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, Altitude Express Inc. v. Zarda, and Bostock v. Clayton County, Georgia), the article offers easy entry into the key ideas at stake in significant civil rights issues today. It’s a must-read for anyone interested in civil rights or constitutional theory.
In Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, William Eskridge persuasively argues that Title VII’s prohibition on employment discrimination “because of…sex” applies to discrimination against LGBT people. Eskridge’s article is a tour-de-force exploration of the meaning and history behind “because…of sex.” It is not only a provocative read about the evolution of a statute, but it is also about the way that constitutional and statutory meaning interact over time. Eskridge demonstrates the tight interconnection of the development of Title VII and the Constitution’s treatment, not only of sex, but also of race and religion. He takes a step beyond his prior work to argue that formal changes in constitutional jurisprudence and statutory amendment must inform a statute’s current meaning. That analytical point—demonstrated through a rich and evocative history of “because of…sex”—is the article’s key contribution.
The article opens by discussing the opinions of appellate judges that formed the circuit split that prompted the Supreme Court to take up these cases, in order to explore a set of methodological questions surrounding statutory interpretation. Ironically, Eskridge notes that the methodologies of the judges that concluded Title VII covers LGBT employees would be attractive to the Supreme Court justices (such as Justice Thomas and Chief Justice Roberts) least ideologically inclined to read it to do so. “Will the Supreme Court divide along predictably ideological and political lines—or might the legal arguments provide a canvas to debate the issue in [a] relatively nonideological manner…?” he asks. (Pp. 329-30.)
A central pillar of Eskridge’s thesis is that any interpretation of Title VII’s text, purpose, or precedents—from any methodological perspective—is incomplete without an understanding of its statutory history, by which he means “its formal evolution through a process of amendment by Congress and authoritative interpretation by the Supreme Court.” (P. 331.)
The article elaborates Title VII’s statutory plan “to entrench a merit-based workplace where specified traits or status-based criteria (race, color, national origin, religion, and sex) are supposed to be irrelevant to a person’s job opportunities.” (P. 322.) It presents compelling evidence that “sex” did not mean merely “biological sex”—even in 1964. Even the 1961 Webster’s dictionary defined “sex” with more nuance as:
- (1) “[o]ne of the two divisions of organisms formed on the distinction of male and female,” or sex as biology;
- (2) “[t]he sphere of behavior dominated by the relations between male and female,” or sex as gender or social role;
- (3) “the whole sphere of behavior related even indirectly to the sexual functions and embracing all affectionate and pleasure-seeking conduct,” or sex as sexuality. (P. 338.)
The statutory history that Eskridge explores demonstrates several points. First, in barring employment discrimination “because of [an] individual’s race, color, religion, sex, or national origin,” 42 U.S.C. §§ 2000e-2(a)-(d), and as both Congress and the Court have recognized, Title VII, commits itself equally to purging the workplace of race-, sex-, and religion-based discrimination. Eskridge connects the Supreme Court’s equal protection jurisprudence, especially Loving v. Virginia and McLaughlin v. Florida, to Title VII’s meaning. Given the equal footing of race and sex in Title VII, and the Court’s constitutional holdings that discrimination against interracial couples constitutes discrimination because of race—that is, the race of one person relative to that of their partner—discrimination against a man for partnering with another man (or a woman with another woman) is likewise sex discrimination for Title VII purposes. Furthermore, in Loving, the Court rejected the state’s argument—parallel to that made by opponents of LGBT protections here—that the law did not target whites or blacks, simply inter-racial marriage, because it equally prohibited both races from marrying across race lines.
Second, Title VII not only bars employment practices that treat all women differently from all men, but also practices that treat some men or some women differently because of their sex. The Supreme Court’s first sex discrimination case is illuminating. In Phillips v. Martin Marietta Corp., the Supreme Court held that Title VII prohibited an employer from disadvantaging not all women, but only those with preschool aged children. The deep point, Eskridge notes, is that Title VII is, and has always been, concerned with social roles and the social meaning of sex. That is, the statute, like evolving constitutional norms, targets not biology simpliciter (or the class of all women or men), but disadvantages due to expectations about how a person should behave because of their perceived membership in a class.
In addition, Price Waterhouse v. Hopkins—a precedent ratified and expanded by Congress when it amended Title VII in 1991—committed the Act to the broader principle that employers cannot prescribe non-merit-based gender roles. In that case, Ann Hopkins was denied partnership, despite having brought in $40 million in business in the early 1980s (surpassing all 87 men in her partner class), because some partners viewed her as too pushy, too ambitious, and insufficiently feminine, because she did not meet their stereotypes of how women should behave, dress, and act.
A key—and perhaps the deepest—sex stereotype highlighted by Eskridge is that men should be attracted to women and that women should be attracted to men. (P. 370.) To discriminate against LGB employees is not irrespective of sex (as targeting not women or men, but homosexuality), but doubly impermissible, because it enforces male stereotypes on some employees and female stereotypes on others. Likewise, an employer who discriminates against an employee for being transgender does so because that person fails to meet the employer’s expectations of how a person of that presumed birth sex should identify, dress, or behave. For this reason, too, Title VII should be understood to prohibit discrimination against LBGT people.
Finally, Eskridge explores the way in which the Constitution’s treatment of LGBT people evolved at the same time Title VII was formally evolving. In a series of landmark Fourteenth Amendment decisions between 1996 and 2015, the Court reversed its prior acquiescence to governmental treatment of gay people as criminals and psychopaths. For this reason, Eskridge argues, “judicial precedents premised on the assumption that Congress and employers can discriminate against gay and lesbian employees because they are presumptive criminals or psychopaths not only can be but must be revisited.” (P. 333.) In short, it is not only “constitutionally jarring to know that, in most states, a lesbian couple can get married on Saturday and be fired from their jobs on Monday, without legal redress. It is impermissible, in light of recent constitutional holdings, to read Title VII to permit as much.” (P. 322.)
In this way, Eskridge notably breaks with Bruce Ackerman’s theory of constitutional moments. Where Ackerman views the adoption of the civil rights statues of the 1960s, including Title VII, as a watershed in a string of punctuated moments of higher law-making, Eskridge’s rich history illuminates the dynamic and evolving nature of statutory and constitutional meaning in their longer arc—showing how together Title VII and the Constitution have come to protect LGBT people.
The article concludes that “[t]he statutory text, structure, precedent, practice, and constitutional background norms is so tightly interconnected…[that] a poorly researched textual analysis, divorced from statutory history, [that read LGBT out of Title VII] would amount to an assault on the rule of law itself.” (P. 333.)
The piece provides critical insights into how to think about sex, discrimination, and the evolution of social and constitutional meaning. Often issues, such as those presented to the Court this term are framed as questions of whether constitutional or statutory text should extend to include LGBT people. Eskridge’s rich account forcefully demonstrates that Title VII’s “because…of sex” already does so. Indeed, to read LGBT people out of the statute would undermine principles protecting not only LGBT people or within Title VII, but far beyond them.
Cite as: Amanda Shanor, “Because…of Sex” & Constitutional Meaning
(September 20, 2019) (reviewing William N. Eskridge, Jr., Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections
, 127 Yale L. J.
246 (2017)), https://conlaw.jotwell.com/because-of-sex-constitutional-meaning/
The Fifth Amendment to the federal Constitution and virtually all state constitutions require the government to pay compensation when it “takes” private property. But many state constitutions also require compensation for government actions that “damage” property. Until now, these “Damagings Clauses” have largely been ignored by legal scholars, particularly constitutional law scholars—and even by property rights advocates. But an outstanding 2018 article by Professor Maureen “Molly” Brady (who has just moved from the University of Virginia to Harvard) could help change that. She sheds light on the origins of these clauses in the late nineteenth and early twentieth centuries, the ways in which they have been largely gutted by court decisions, and what can be done to resuscitate them today.
Twenty-seven state constitutions have clauses clause prohibiting the “damaging” or “injuring” of private property for public use without just compensation. In the article, Prof. Brady explains how damagings clauses were enacted in order to compensate owners for harm inflicted by new infrastructure development that was not covered by the then-dominant interpretation of state takings clauses, which generally required either a physical invasion or occupation of the property or (in the case of regulatory takings) direct restrictions on the owner’s right to use the land. This did not cover such situations as the creation of various types of pollution, debris, and access barriers that sometimes rendered property difficult or impossible to use. But, while the wording of the clauses and the originally understood meaning, suggested they should apply broadly, Brady shows that over time courts in most states effectively gutted them, restricting compensation only to cases where compensation was already likely to be required by state or federal takings clauses.
This history is a lesson in how a seemingly successful constitutional reform movement can be stymied over time by failure to follow up on early victories, and restrictive judicial applications. This experience is certainly worth considering, as modern property rights activists seek to combat abuses of eminent domain, and restrictive zoning. Often, enacting legislation or even (as in this case) passing constitutional amendments is just the beginning of the battle, not the end. Brady’s article is thereby an addition to the growing literature on constitutional reform movements, and the factors that explain their successes and failures.
Brady identifies multiple possible reasons for the ineffectiveness of Damagings Clauses, including judges’ concerns that enforcing them would impose too many constraints on building of new infrastructure. But one factor that is worth highlighting is the way in which the vagueness of the clauses make it difficult to distinguish between “damagings” (which require compensation), and mere diminutions of value (which do not). Another, less emphasized by Brady, is the seeming failure of property rights advocates to engage in strategic litigation to ensure effective enforcement of the clauses.
In many states, the role initially intended for Damagings Clauses was filled by tort claims that offered an alternative mechanism for aggrieved property owners to seek compensation. But Brady argues that neither tort claims nor regulatory takings doctrine offers an adequate substitute for effective Damages Clauses.
This article should be seen as part of a growing recognition among legal scholars that we should pay more attention to state constitutional law. Even in age where the federal government controls more and more areas of public policy, state constitutions still play a major role in constraining abuses of government power. This is particularly true in the field of property rights, where states and localities are responsible for the vast majority of uses of eminent domain, and regulations that restrict or usurp property owners’ control over their land.
The article also makes a good case for why courts should interpret Damagings Clauses more broadly, in the future, so as to impose tighter constraints on state and local officials. As Brady explains, there is a great deal of historical evidence indicating that the original meaning of these clauses provides much broader protection for property owners than courts have been willing to enforce. She also offers a number of reasons why living constitutionalists should support a broader view of these clauses’ application.
The political backlash generated by the Supreme Court’s 2005 decision in led to numerous state constitutional amendments barring “economic development” takings and several state supreme court rulings holding that their states’ constitutional “public use” clauses already forbade such takings, even if the Supreme Court’s interpretation of the Fifth Amendment does not. There has now been a good deal of scholarship (including some of my own work) on the state-level reaction against Kelo, and state public use rules generally, and the ways in which they often deal from the extremely lax approach adopted by the US Supreme Court in interpreting the Fifth Amendment.
There is much less work on state constitutional law on “regulatory takings” and related property rights issues—of which the history of “damagings” is a notable example. Fortunately, younger scholars such as Molly Brady and Gerald Dickinson are now beginning to fill that gap. This is particularly important in an era where new infrastructure projects, regulations, and efforts to deal with natural disasters seem likely to generate more cases where state and local governments damage property in ways that fall short of occupation or invasion, and might not be ruled compensable under conventional takings clauses.
This article is not the last word on Damagings Clauses. As the author recognizes, she does not provide a clear standard for expanding the use of these clauses in the future, though she makes a good case that the current highly restrictive approach adopted by most state courts is defective. There is also more work to be done in explaining how and why these clauses were rendered largely toothless over time. But the piece is a major step forward in our understanding of this important and unduly neglected episode in the history of legal battles over property rights. If you have any interest in takings law, property rights, constitutional reform movements, or state constitutional law generally, you should check it out!
Parts of this post have been adapted from a blog post at the Volokh Conspiracy law and politics blog, hosted by Reason.
In Passive Avoidance, Professor Anita Krishnakumar argues that the Roberts Court has retreated in recent years from the aggressive use of the constitutional avoidance canon that dominated much of its early jurisprudence. Instead, the Court now relies on doctrines like the rule of lenity, federalism clear statement rules, and the mischief rule as alternatives to the constitutional avoidance canon, a move that she refers to as “passive avoidance.”
This Article is another tour de force in a very impressive body of work. Professor Krishnakumar exhaustively tracked the Court’s use of the constitutional avoidance canon, discussing its high point from 2006-2012 and subsequent decline thereafter. In a number of cases, the Court construed statutory language very broadly—and sometimes implausibly—to avoid serious constitutional questions raised by the statute. Famously, the Court relied on the constitutional avoidance canon in National Federation of Independent Business v. Sebelius, by construing the individual mandate in the Affordable Care Act as a tax in order to avoid the constitutional issues posed by treating it as an exercise of the commerce power. The Court also invoked the canon in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder, broadly interpreting the bail out provisions of the Voting Rights Act of 1965 to avoid constitutional issues. She argues that these cases, and others, triggered such backlash that the Court ultimately retreated from active use of the constitutional avoidance canon.
Professor Krishnakumar offers a compelling narrative to explain the Court’s retreat from the canon. Commentators had criticized the Court’s use of the canon as “activist,” pushing the Court to find other, less transparent ways of achieving its goals. The turn to these alternative doctrines has been mostly beneficial. They avoid many of the criticisms that have plagued the constitutional avoidance canon, the most pointed of which accuse the Court of using the canon to issue judicial advisory opinions by opining about, but failing to resolve, the constitutionality of the statute being challenged. Neither the clear statement rule nor the lenity doctrine requires any consideration of the statute’s underlying constitutionality; the assumption is that the exercise of federal power is problematic for reasons unrelated to the statute’s constitutionality. Similarly, focusing on the events that motivated the passage of the statute as a reason for embracing or eschewing a particular interpretation, as the Court does with the mischief rule, keeps the statute in line with its original purposes, and thus avoids accusations that the Court is seeking to enlarge its own power by rewriting the statute. In sum, Professor Krishnakumar’s view is that the use of second order doctrines to achieve goals similar to the constitutional avoidance canon has the benefit of advancing a variation of Alexander Bickel’s “passive virtues” approach—one that avoids complex constitutional questions through the use of narrower interpretive techniques.
Like much of her work, this Article tells an important story in judicial decision-making. It also fits with an emerging literature that has sought to explain the stealthy ways in which the Court and individual justices resolve cases beyond issuing opinions. While Professor Krishnakumar ultimately endorses the Court’s use of passive avoidance, she recognizes that its reliance on alternative doctrines—which I call “stealth” canons—could also raise concerns about a lack of transparency in the Court’s decision-making process. In opaquely using stealth canons to avoid constitutional questions, the Court “could be criticized for obscuring [its] true reasons for choosing Y interpretation over X interpretation of a statute, and for silently leaving in place a statute that several Justices believe contain serious constitutional infirmities.” (Pp. 582-83 n.1.) She concludes, however, that the benefits outweigh the costs because these doctrines mitigate the harm from an aggressive use of the constitutional avoidance canon that has caused so many to question the Court’s legitimacy.
Many readers familiar with the Court’s use of the constitutional avoidance canon from 2006 to 2012 are likely to agree with Professor Krishnakumar that the benefits of using stealth canons outweigh the costs. While these doctrines may raise transparency concerns, there was also an alarming lack of transparency with the constitutional avoidance canon that suggested that the Court was motivated by considerations other than a statute’s potential unconstitutionality.
In NAMUDNO, for example, the Court intimated at length that section 5 of the Voting Rights Act of 1965 was unconstitutional and that avoidance of the constitutional question would give Congress an opportunity to fix the statute. Yet when the Court invalidated the coverage formula of section 4(b) of the Act four years later in Shelby County v. Holder, the Court made it difficult to envision that any type of remedy would be appropriate. Much of its opinion was based on a post-racialism that suggested that the Act was outdated because of its federalism costs. Even if Congress had been functional enough to amend sections 4(b) and 5 during the period between NAMUDNO and Shelby, it was likely in a lose-lose situation given the chasm between the Court’s deference to Congress in 2009 and the Court’s 2013 intervention to save “Our Federalism” from a threat that no longer existed.
Thus, the lack of transparency and inconsistent use of the constitutional avoidance canon suggests that the switch to other, less intrusive doctrines should be a welcome one, despite the risk that these alternative doctrines will be used in a stealthy way. By highlighting the rise of these stealth canons, Professor Krishnakumar importantly and critically highlights the interpretive tools to which litigants should give more attention for this next era of judicial decision-making.
Federal Indian law might seem an unlikely paradigm around which to center our understanding of constitutional law. But as Maggie Blackhawk lays out in her excellent new article, Federal Indian Law as Paradigm Within Public Law, the history of Native Nations and indigenous peoples in the United States, and their treatment as constitutional subjects, is equally central to our constitutional history as slavery and Jim Crow. And yet it is far less common for Native history to play a role in our canonical stories and in our understandings of what constitutional law does, or ought to, provide.
Reading Blackhawk’s article is itself a potent reminder of just how little of the legal history of Native Americans’ relationship to the U.S. government is taught in conventional constitutional law classes. Although the cases and practices she describes in many instances have deeply informed our modern constitutional understandings—of the treaty power, the war power, the plenary power doctrine, and others—most will be unfamiliar to those outside of the federal Indian law field. Unlike Dred Scott, Plessy, Brown, and others, no similar canon or anti-canon of federal Indian law cases forms a common vocabulary for our understanding of the Constitution’s basic principles.
As Blackhawk’s article makes clear, our neglect of the federal Indian law paradigm is not only a matter of erasing from public memory our nation’s brutal history of colonialism and the subordination of Native peoples (though it is that too). Rather, as Blackhawk puts it, “Scholars, practitioners, and courts draw…on paradigm cases and model examples in the stories we tell about the Constitution and how constitutional law works. It is through these stories that we convey and discuss questions of constitutional theory and that we build our constitutional canon and anti-canon.” (P. 1804.)
Placing Native history at the center of the canon, alongside slavery and Jim Crow, leads to different results. In Blackhawk’s words “identifying colonialism at the heart of our constitutional law doctrines ought to open a conversation as to whether those doctrines should remain good law or should be discarded alongside Dred Scott and Plessy v. Ferguson as constitutional failures.” (P. 1805.) So too, “[l]essons drawn from understanding the role of colonialism and its tension with constitutional democracy could provide descriptive and normative guidance to a range of general principles within public law—most notably, how to prevent constitutional failure and the abuse of state power.” (P. 1806.)
Though Blackhawk describes a variety of contexts in which this re-centering could be important, she relies on equality law as her central example, and it is generative. As she points out, our canonical vision of minority protection, framed around the paradigm case of slavery and Jim Crow, has long revolved around federal protection and rights, not minority power—and inclusion and integration, not independence. Thus, our modern constitutional paradigm “presume[s] that minorities are best served by rights and national power.” (P. 1846.)
As Blackhawk points out, the inadequacy and contingency of this centralized power-and-rights perspective becomes immediately apparent once Native peoples and Native Nations are placed at the center of our thinking. The violence and efforts at subordination targeted at Native Nations have been predominantly (though certainly not exclusively) effectuated at the hands of federal actors, acting under broadly construed federal powers. So too “rights” have, in Blackhawk’s words, been “feared in Indian Country, rather than sought.” (P. 1859.) Rather than a tool of empowerment, rights, to the extent they have been offered at all, have largely been used to weaken and undermine Native self-governance and self-determination.
In contrast, Blackhawk points to power as the central organizing principle of harm mitigation that emerges from a constitutional paradigm centered on Native Nations. As Blackhawk points out “[w]ithin Indian law, the federal government has used power to mitigate the colonization of Native Nations and the subordination of Native peoples.” (P. 1862.) Understanding this as central, rather than peripheral, to our constitutional project leads to the conclusion that “[t]he empowerment of minorities should not only be celebrated, it should also be recognized as something foundational to American constitutional democracy.” (P. 1863.)
Blackhawk’s insights on this point ought to resonate deeply with those concerned with our constitutional equality law project. Power, and the autonomy and self-determination that come with it, are values that, as Blackhawk points out, are largely absent from our modern conception of constitutional equality law. (Though some, including a number of scholars who Blackhawk discusses, have urged their greater inclusion). And yet they are deeply important to many minority communities. From people of color, to people with disabilities, the working poor, and more, power and autonomy should be a key component of our thinking about how the Constitution ought to address issues of minority subordination and oppression.
Like most attempts at effectuating a fundamental paradigm shift, Blackhawk’s article cannot hope to fully develop all of the nuances of her argument. Among the areas that could offer rich possibilities for future work is an elaboration of how her ideas relate to the paradigm case she seeks to supplement: the experience of African Americans in the United States. For although power and autonomy have not been the constitutional principles through which the harms of slavery and Jim Crow have been mitigated, they have long played a role in Black political thought and Black political movements. Indeed, even today political power and community control are among the central demands of the Movement for Black Lives. Yet modern examples of real power and autonomy being devolved to black or other minority communities are comparatively few, and often have been met with resistance and backlash.
Blackhawk’s article also does not fully address the many genuine conflicts that can arise from devolving power to minorities, especially where communities are heterogeneous. Though she persuasively makes the case that a Native woman, whose community is told it must adhere to federal sex discrimination rights, has been in a meaningful and harmful way divested of power, she does not address how this might play out across other, potentially even more difficult, contexts. In an era in which many conservative Christians feel that they represent a minority perspective, and in which various Christian denominations are riven by internecine battles over doctrine and direction, this issue is surely not merely theoretical. Rather, it highlights the importance of integrating the paradigm on which Blackhawk would have us retrain our attention with the rights-protective paradigm that has emerged from the paradigm of African American exclusion.
Though Blackhawk’s article does not (and could not) fully resolve these dilemmas, it offers important insights into what a path forward might look like. As Blackhawk points out, the path to constitutional harm-mitigation (i.e., power) in the context of Native Nations and Native peoples has not been exclusively, or even primarily, through the courts. Rather, it has been a project in which legislative, and sometimes executive, action has played a vital role—for better or for worse.
To the extent we are going to attempt to operationalize constitutional values of power and autonomy for other minority communities, this insight is surely of key importance. For while the courts may be an important site for developing Blackhawk’s paradigm-shifting insights (and it is enticing to imagine contexts, such as state receivership of minority communities, which might provide a place to start), executive and legislative action at all levels of government will surely play a role. Not only are legislative and executive actors critical, by virtue of their ability to fundamentally obstruct or promote such a project, they are also arguably better equipped to consider the questions of how to address the inevitable conflicts between power and rights, or between different powers or different rights.
Ultimately, Blackhawk’s article is a call for us to remember that “[t]he U.S. Constitution contained more than one compromise and more than one original sin at the Founding.” (P. 1806.) As Blackhawk argues, colonialism, and the subordination of Native Nations and Native peoples, was central to our national project of constitution-making. As such, this history surely deserves a more prominent place in our constitutional canon—and anti-canon. And centering that paradigm, alongside slavery and Jim Crow, can offer us new constitutional perspectives—on rights and power, federalism and sovereignty, and ultimately how our past constitutional mistakes ought to inform our constitutional present.
Nikolas Bowie, The Government-Could-Not-Work Doctrine
, 105 Va. L. Rev.
1 (forthcoming, 2019), available at SSRN
Without much fuss, writing with easy, accomplished clarity, Nikolas Bowie puts forward two striking ideas interacting dramatically in his article The Government-Could-Not-Work-Doctrine.
The first is advertised in the title of his article: The proposition that government is supposed to work is constitutional, Bowie stresses. It is itself a notion properly treated as of primary relevance in processes of bringing to bear other constitutional considerations. In particular, he asserts, government efforts ought ordinarily to win our respect if they declare their general applicability to be integral to their aims. Vaccination programs, we may especially appreciate these days, count as paradigm illustrations. Claims to exceptions, however deeply felt and honorably motivated, should not prevail absent directly pertinent, emphatically couched constitutional directives. “We cannot always be in every political majority.” (P. 62.) Individuals who resist general dictates should consider tactics founded in philosophies of civil disobedience. Bowie mobilizes, inter alia, Jesus of Nazareth, Mohandas Gandhi, and Martin Luther King, Jr. (P. 3).
The second idea pretty much takes over the essay quite quickly (Pp. 11-35).
We are made witnesses to a distinctly striated chronology. Until 1943, Professor Bowie reports, the Supreme Court respected government efforts to treat regulatory agendas as generally applicable. After Justice Jackson wrote his majority opinion in West Virginia Board of Education v. Barnette, however, the idea of exceptions to duties writ large quite often figured as high-church constitutional law too. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Many Court rulings followed Barnette’s lead, if variously, complicated sequences of decisions emerging. Sometime around 1982, Bowie sees a second shift, a largely returned resolution, a now bridged gap. Exceptions are once more exceptional, expansive laws are much more often accorded constitutional respect. Lawyers sometimes lag – and the Supreme Court is not always consistent in its course. Professor Bowie has collected and read closely a very large lot of cases, however. His main point is the larger movement. Convinced his chronology holds, he readily reaches conclusions about the content of constitutional law as we ought to understand it as of now. Cases that we might suppose are complicated are not, he argues. For example, the baker’s claim to exemption from nondiscrimination law in Masterpiece Cakeshop (sidestepped in Justice Kennedy’s opinion there) “would go to the heart of the government-could-not-work doctrine.” Bowie is confident: “The Court would have an easy time rejecting it.” (P. 59.) Notably, he writes at considerable length setting up a context marking as wrong the Court’s ruling in Janus last summer. Re-embracing a free speech right to refuse to pay agency fees to public sector unions was plainly error. “[A]gency-fee agreements and other compelled subsidies should be presumptively constitutional, no matter what the recipient spends the fees on.” (P. 53.)
There’s more discussion of examples. It’s all very well done. What precisely do we learn?
“Working government” ought to be viewed as a constitutional concern. This is an old thought. It is everywhere in John Marshall’s opinion in McCulloch v. Maryland, for example, pretty much the premise of its discussion of how to understand the Necessary and Proper Clause, and also the prompt giving urgency to the worry that Maryland’s “power to tax” is or would be or might be “the power to destroy.” Marshall had latitude there, though. He was working with the article I, section 8 list of congressional powers, along the way assuming that no other constitutional terms were pertinently constraining his readings. Bowie, it appears, treats the broad readings given constitutional rights in the gap years as originating against a backdrop something like Marshall’s. No constitutional endorsements of legislative authority, either federal or state, were thought to be immediately implicated. There was not much need therefore, it may have seemed, to judge separately immediate infringements of rights and oblique obstructions. Bowie depicts the Supreme Court, over the last three decades or so, as now putting up fences, hedging rights-readings in service of working government, more or less independently of whether specific constitutional constraints are pertinent. “Good fences make good neighbours” – Robert Frost’s North of Boston jurisprudence? (More precisely maybe, Frost’s neighbor’s father’s jurisprudence?)
Professor Bowie adroitly juxtaposes the “much older” and “pretty much right now” lines of Supreme Court thinking. He is more inclined to note the fact of the gap he’s discovered, jumping effortlessly across it, than to look closely at the clangorous opinions accumulated there. Why? Gaps open up in constitutional law, not news we know. After 1937, for example, a great host of Supreme Court Commerce Clause decisions were quite quickly deemed to be irrelevant, Justices openly marking the phenomenon. Around 1937 also, an entire herd of substantive due process opinions looked to have wandered off too, recognized suddenly as extinct, kin to mastodons or wooly mammoths. Near to 1982 (Bowie’s time change), we know, Brown v. Board of Education began to recede from view, maybe not so quickly or completely, obscured by a crowd of new Supreme Court remedial concerns and hesitations.
The question is not whether we forget Barnette itself. Bowie suggests that he would not. It’s rather the resonance – the thought we take away after reading Jackson’s opinion that we have encountered something right in our constitutional law, something it would be wrong not to put to work, to mark where we stand. (Many of us – Justice Kavanaugh, for example – say we feel this way about Brown.) Too: the four decades 1943-82 show off an exuberantly critical mass of talented, ambitious, creative, independent-minded, only sometimes coalescing Justices: Black, Frankfurter, Douglas, Jackson, Warren, Harlan, Brennan, Marshall, Rehnquist, Powell – just for starters. A golden age? Barnette one of its especially bright pillars? Or too often too brilliant, we might think (perhaps remembering Daniel Farber). “Constellations” might appear to encompass not only Barnette and its immediate family resemblances, for example, but also other bright stars and their larger groupings. These gatherings may not be stable, instead networks open to further rhizome-like elaborations. Forty years of cases, often enough over time sprawling well beyond initial points of departure, in fact spurred more than a few aggressively re-thought organizings, we know. Unlike Laurence Tribe and John Ely (many others also), Nikolas Bowie resists this call. He perhaps appreciates Oedipus at Colonus. Heroic figures and their great works belong underground, now-chthonic forces: turbulences, a warning perimeter of sorts, maybe only safely within which ordinary work might be done.
“We can be heroes.” Did David Bowie sing wrongly?
It is not at all surprising, we realize, that Nikolas Bowie avoids looking too closely into the gap he’s discovered. Why try to take inventory down in the dark, plot the reach of all the reverberations, the full extent of the forty-year pile-up, would-be “golden age” or not? Bowie wants what’s in the gap out of the way.
Less disciplined, I peer just for a moment. Justices Brennan and Rehnquist, active in overlapping stretches in second half gap years, continued in their often-competing efforts for a while in the first part of Bowie’s “right now.” They’re near the top of the heap therefore (in a way both inside and outside the gap).
Brennan – The famous term “actual malice” inserted into constitutional law in 1964 in New York Times v. Sullivan is exemplary. It looks to have originated in one of the alternative sets of common law defamation checkpoints (notably, Thomas Cooley’s) still in use in Sullivan’s time. Justice Brennan, however, turned it first into a photographic negative of sorts of “robust and inhibited” public debate – the “central meaning” he declared. But then in Garrison in 1965 he also characterized it affirmatively as the core notion for purposes of modeling remedies as against anti-free speech (Brennan evoking Nazi manipulations of defamation law), underscoring and responding to Justice Black’s concern in Sullivan itself for how widespread white supremacist sentiment might readily infiltrate and weaponize defamation suits (civil or criminal) to suppress civil rights protest. “Actual malice” thus both pledged allegiance to and protectively organized regulation of free speech. The first amendment and the fourteenth amendment effectively incorporated – looked to – each other.
Rehnquist – Near to invisible, his masterpiece for present purposes may be Jean v. Nelson, decided in 1985. The United States government had detained hundreds of Haitian arrivals, undocumented and excludable, for an extended, indefinite period of time at its Miami Krome Avenue detention facility – which had become effectively an internment camp. See Irwin P. Stotzky, Send Them Back (2018). All sorts of constitutional, statutory and administrative law arguments and counter-arguments swirled around the case. Rehnquist seized upon a single colloquy at oral argument (Justice Stevens asks the question):
“Question: You are arguing that constitutionally you would not be inhibited from discriminating against these people on whatever ground seems appropriate. But as I understand your regulations, you are also maintaining that the regulations do not constitute any kind of discrimination against these people, and … your agents in the field are inhibited by your own regulations from doing what you say the Constitution would permit you to do.”
“Solicitor General: That’s correct.”
Dissonance becomes crystallization, an affirmatively rejected constitutional proposition acquires authority, two words work as rule of recognition, in several senses authorize the force of law:
We have no quarrel with the dissent’s view that the proper reading of important statutes and regulations may not be always left to the stipulation of the parties. But when all parties, including the agency which wrote and enforces the regulations, and the en banc court below, agree that regulations neutral on their face must be applied in a neutral manner, we think that interpretation arrives with some authority in this Court.
(P. 856 n.3.)
Detention was illegal, the internees free, anti- Korematsu! – without any Brennan-ish “central meaning” acknowledged whatsoever. Within Rehnquist’s analyses, we remember, the scope of constitutional rights often emerged seemingly haphazardly, non-constitutional elements or actors unexpectedly figuring as decisive. Jean takes this approach to its limit. Legal questions appear as implicating several distinct constitutional or statutory or judicial domains, unfolding without conveying any sense of canonical emphases, regimes in principle equally significant.
Neither Brennan nor Rehnquist seems to have perceived any real difficulty in depicting ideas of individual rights and agendas of working government as sometimes concurrent, as frequently interacting, as each at points expressions or interpretations or acknowledgements of the other. Nikolas Bowie might readily conclude that neither of their approaches work for his purposes. If the point of the constitutional project is both to secure well-defined individual rights and to facilitate working government more often than not, well-maintained hedges or fences must become part of the enterprise too.
Bowie’s Gap may be an important discovery. Justices Brennan and Rehnquist, along with many also illustrious comrades, were regularly caught up in puzzles posed by “constitutional” “law.” Law should generally acknowledge and therefore somehow express constitutional commitments; constitutional commitments should similarly bear witness to legal notions and institutions that are as law constitutionally constitutive. This back and forth, we all know, is hard to conclude once taken up. “Just say no!” Professor Bowie calls attention to otherwise extant constitutional presuppositions pretty much free of “constitution” and “law” – enough initially, anyway. Working government is part of the project, so too is some sense of what counts as well-defined in our collection of individual rights. If we fence carefully, attentive to problems of interference posed for either side, we may most of the time proceed free of systemic drama (there will always be constitutionally-local controversies). We might therefore leave our forty years of famous cases and famous Justices down in the gap.
Just so much trash? Encompassing constitutional crises are not inconceivable – within which we would not want to stop short, would feel the need to take up all of our constitutional thinking, all against all. These are the occasions, presumably, when we should want to revisit our most fully wrought – most dramatic, most intricate, most self-conscious – explorations: our resources at the limit, as it were. Speluncean explorers then, we would revisit the gap: Our emergency constitution in cases of constitutional emergency?
Cite as: Pat Gudridge, Bowie’s Gap
(May 29, 2019) (reviewing Nikolas Bowie, The Government-Could-Not-Work Doctrine
, 105 Va. L. Rev.
1 (forthcoming, 2019), available at SSRN), https://conlaw.jotwell.com/bowies-gap/