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/
The rise of instant, personalized access has its costs and benefits. Things like time-shifting, the ability to download songs rather than whole albums, and even SSRN make each person his or her own curator. But we lose the value of communal experience: the experience of encountering an interesting document or idea together and simultaneously.
In American legal academic culture, one such event was, or is, the publication of the Foreword to the Harvard Law Review’s annual Supreme Court Issue. Mark Tushnet and Timothy Lynch’s classic study, “The Project of the Harvard Forewords,” provides one of the best (and only) accounts of both the Foreword’s importance and its “structural constraints.” The article notes the frequency with which the Foreword article, which purports to be both a definitive statement about the most recent Term of the Supreme Court and a definitive statement for each Foreword’s author, disappoints. Indeed, attempting to serve both functions may contribute to that disappointment. The time constraints involved in writing the Foreword, the expectations it carries, and the fact that its authors are often selected because they have already often written their most important work means that most Forewords read like a “set piece,” a “replay” of the author’s greatest hits “in the context of the Supreme Court’s most recent cases.” Sometimes a Foreword fulfills neither function well. Aharon Barak’s 2002 Foreword was essentially a valedictory précis of great work he had already written. Nor was it a helpful guide to the past Term of the Court. Indeed, in its 146 pages, it mentioned just one case decided that Term. Even then, it only did so in the footnotes.
Tushnet and Lynch’s article deserves an update, asking whether the Foreword (or the Supreme Court issue as a whole) can or should survive in its traditional form, given that by the time it appears, the past Term has already been hashed over in countless online discussions and SSRN drafts. In the meantime, there must still be at least a few old fogies, like me, who look forward to the Foreword every year. And although Tushnet and Lynch are right that it is systematically disappointing, the occasional Foreword remains a pleasure worth waiting for and taking notice of. This is true of the latest Foreword, Jamal Greene’s Rights as Trumps?.
Greene’s article is in some ways characteristic of the structural constraints Tushnet and Lynch discuss. Its central subject—the contrast between the categorical approach to rights that is characteristic of American constitutional law and the proportionality analysis used by many modern constitutional courts—is not new or obscure, and Greene has discussed it before. But he has an important point to make about the contemporary relevance of that debate. In his hands, the past Term and its decisions are central to that point rather than an afterthought. His article is not tediously political; despite the potential pun involved in the title, he really is centrally concerned with “rights as trumps,” not with Trump and rights. But it is relevant to our political and cultural situation. Most importantly, the article is unafraid to raise hard questions about even its central claims.
If Greene’s Foreword were merely a plea for proportionality analysis in American constitutional law, it would be a fine introduction to that subject but perhaps less essential as a Foreword. But it is more than that. Although his “core claim” is that “a proportionality-like approach is better suited [than a categorical one] to adjudication of rights disputes within a rights-respecting democracy,” the article is really elevated by certain arguments he makes along the way. These arguments are closely related to and illuminate the state of contemporary legal and political culture: its state of polarization, heated rhetoric, and doctrinal gamesmanship.
Greene argues that the categorical approach treats rights in a “zero-sum” fashion and thus “ill prepare[s] its practitioners to referee the paradigmatic conflicts of a modern, pluralistic political order.” Many modern conflicts, Greene writes, are “less momentous” than “paradigm cases” such as “racial segregation, McCarthyism, and the like.” This seems both true and commendably candid. It is certainly out of step with modern legal and political culture, in which practically all arguments involve dramatic assertions of high stakes and great urgency.
That high-stakes rhetoric, Greene argues, is a natural consequence of categorical approaches to rights. Its effects distort constitutional law and politics alike. In a “mature rights culture,” in which many cases involve conflicting rights claims rather than absolute and lopsided deprivations, the logic of rights-as-trumps encourages a race to the summit. The goal is to be the first to plant the flag of one’s own rights claim and to cast any competing claims into the abyss. As a great, if oddly French-accented, Scottish philosopher once observed, “There can be only one.” In such a contest, the competing right is often dealt with by denying that it exists at all. Litigants, and ultimately judges, are encouraged to paint “a portrait of rights on one side [and] bad faith on the other,” rather than acknowledging the sincerity and seriousness of the interests of both sets of citizens, even if those claims must ultimately be weighed so that one side can be proclaimed the winner.
Doctrinally, one result is that conflicting rights claims are resolved by categorically denying that a conflict even exists, either by rejecting one claim absolutely or via a variety of doctrinal escape hatches. In religion cases, an example of the former is the rejection in Employment Division v. Smith of any judicially enforceable right to accommodation in cases of religious burdens, thus eliminating the need to balance such claims against competing state or individual interests. Examples of the latter approach are legion. Take the contraceptive mandate litigation, which was statutory but closely related to constitutional law. Many lower courts in that litigation dispensed with the case by denying that any substantial burden existed in the first place. Another escape hatch, as Greene notes, is the creation of doctrinal “refuge[s],” such as the government speech doctrine. A third possibility—or inevitability—is that under such a system, seemingly categorical rules will be treated in a “dogmatic but capricious” fashion, heightened or lowered according to the majority’s view of the needs of an individual case and resulting in “tacit (and therefore baffling) distortions of the categories themselves.”
The political consequences are equally bad. Rights-as-trumps provides a “grammar” for political argument. Under that grammar, “[b]ecause the rights-as-trumps frame cannot accommodate conflicts of rights, it forces us to deny that our opponents have them.” It encourages us to “formulate constitutional politics as a battle between those who are of constitutional concern and those who are not. It coarsens us,” and exacerbates social and political polarization. The party or lawyer who finds a novel way of characterizing a “good” position as a rights claim is a bold innovator, redeeming the promise of the Constitution. The party doing the same thing on the “bad” side is a calculating conspirator, a “weaponizer,” an abuser of a venerated document. The current approach creates “a world of enemies.”
Greene prefers proportionality analysis. Proportionality is “not just another word for ‘balancing.’” It is “a transsubstantive analytic frame…that is designed to discipline the process of rights adjudication on the assumption that rights are both important and, in a democratic society, limitable.” Greene characterizes it as focused less on interpretation, as is true of the categorical approach to rights, and more on empirical analysis. The question is less whether a right exists and what it means, and more “whether the facts of the particular dispute form a sufficient basis for the government to have acted as it did.”
This is hardly a “technocratic” inquiry. Questions about means-ends fit, or whether the impairment of a right is disproportionate given the competing governmental interest, necessarily involve value judgments. But those judgments turn on the justifications offered in each individual case, rather than being smuggled into categorical rulings that are destined to be stretched or narrowed as subsequent cases arise. This doctrinal approach can be unclear but is at least more transparent. And it has the benefit, in and out of court, of lowering the legal and political stakes. It forces “litigants and their fellow citizens…to acknowledge the mutual and legitimate presence within [society] of others who hold contrary values and commitments.”
Greene wants “to move U.S. constitutional adjudication closer than it is now to the proportionality end” of the spectrum. He acknowledges forthrightly that proportionality review “is not perfect, still less in practice than in theory.” Among other criticisms, if categoricalism promises clarity but ends in doctrinal distortion and obfuscation, proportionality is transparent about reviewing competing interests, but vulnerable to concerns about how little guidance it gives for subsequent cases. Greene offers counter-arguments to all the criticisms he provides. But he does not treat these arguments as “trumps.” Nor does he promise more certainty and clarity than proportionality review can actually provide. Admirably, he provides ammunition to those who would question proportionality review. He leaves the question as it should be: not one of which allegedly perfect system to choose, but of which imperfect system is better for law, politics, and culture in a society that presents many disputes involving competing and reasonable claims on both sides.
One might raise other questions about Greene’s argument for proportionality. I offer them with some personal basis: as a Canadian-born-and-trained lawyer with a continuing interest in the doings of that country and an occasional outsider’s perspective on the folkways of American law and politics. But I freely acknowledge that I am, by now, more of an imperfectly assimilated American insider than an outsider, and that I know less about Canadian law and legal culture than I once did.
One question is armchair-sociological. It concerns proportionality and the role of elites. The kinds of “empirical” questions that proportionality seeks to answer may not involve “balancing.” But the standard proportionality test for courts in Canada and elsewhere is not much more detailed than a balancing inquiry would be. If proportionality has any tractability and predictability, does the stability come from the test? Or is it a product of shared values and consensus on the part of the fairly narrow, elite community that purports to apply it? At least when I still lived in Canada, it seemed to have much more to do with the latter. Proportionality “worked” because the Canadian legal and political elite was a mandarinate. It was increasingly diverse among some dimensions but still narrow along others. Among other things, it was heavily concentrated in a few (mostly eastern) cities but drew very little representation from elsewhere in Canada. Judges and other members of that community could speak intelligibly to each other in the general language of proportionality because they already shared and assumed the values that were submerged within their applications of the test.
Assuming that this picture contains some truth, we might ask several questions. First, if the virtue of proportionality’s “culture of justification” lies in its reliance on the “‘rationality and reasonableness’” it demands from government, and on the promise that the empirical nature of this inquiry “invites parties with a diverse set of commitments to remain invested in the constitutional system rather than alienated from it,” is that investment likely to hold if “rationality and reasonableness” mostly consist of the shared values of an elite class? How transparent will the language of proportionality really be to outsiders under those circumstances, no matter how legible it is to those on the inside? Why remain invested in the system if you suspect that your reasons and interests will forever be viewed as “unreasonable” by this class?
Second, what happens if the mandarinate becomes more diverse along ideological or cultural lines? Will a proportionality test still be workable under circumstances in which there are fewer shared assumptions and values? Conversely, what happens if the elite remains relatively exclusive and is ultimately resented and challenged? Something of the latter case seems to me to have occurred in Canada once the Western provinces gained political power and the restrictive nature of the mandarinate became more salient. The consensus view among elites in the places I know best, like Toronto, was that this new constituency was disastrous and the new regime a bunch of wreckers. Maybe so. But they were also doubtlessly refreshing to many Canadians. It is perhaps unsurprising that the same period also saw increased contestation over the Canadian Supreme Court nomination process, and a slowly growing scholarship questioning the conventions of Canadian constitutional law and urging more—well, more categorical—approaches. Given the rise of populism and relative decline or isolation of elites in many places other than the United States, this seems a timely question. Is the world of proportionality analysis, and of its advocates, a genuine bridge between contending sides—or a place that seems calm and moderate only because it’s an island, sheltered from the rest of the world?
This leads to a final question, one asked by Greene himself: Can we get there from here? Although law and politics may share a “grammar” or “style,” they may both come from the broader culture rather than influencing each other. As Greene observes, the rights-as-trump style of American legal and political argument may be perpetuated by existing polarization, “producing a cycle from which escape will be challenging.” That is an understatement. Slyly referencing Ronald Dworkin, Greene writes that his approach offers a first step on “the path to rebuilding American politics, a feat that is…worthy of Hercules.” Perhaps the most important fact about Hercules is that he doesn’t exist. Although Greene usefully shows that categoricalism is not an inevitable approach to American constitutional review, it may be that it has use in an already diverse and divided system, in which the shared values necessary for proportionality are absent. Even if that’s not so, it may be that Americans—including American legal elites—are, so to speak, constitutionally wedded to high-stakes, zero-sum conflict and to “rhetoric over judgment.” They may not really want to rebuild American politics.
These questions are not intended to score points on Greene’s article. (As they suggest, however, I have my doubts about the optimistic and prophetic tone of Greene’s conclusion and its call for constitutional “redemption.”) Indeed, one of the most praiseworthy aspects of Greene’s article is that it openly supplies its own questions and criticisms, neither limiting itself to easy questions nor suggesting that his own answers are sure to satisfy. Beyond that, Greene’s Foreword nicely manages to be both an excellent introduction to his own work and a pertinent look at the recent work of the Supreme Court. It is an equally useful introduction to proportionality in constitutional law, for those who are still in need of education on this topic. Last and far from least, it serves as a worthwhile reminder that we need not treat every dispute as a horn sounding the Last Trump (to indulge in a final pun). Instead, we should give thought to what both law and politics ought to be like, given the “less momentous” contests of competing rights that characterize a “modern, pluralistic political order.”
Brandon L. Garret, Wealth, Equal Protection, and Due Process
, Duke Law School Public Law & Legal Theory Series No. 2019-14 (Jan. 14, 2019), available at SSRN
It is a constitutional law truism that wealth and class are not suspect classifications, nor does the government have a substantive due process obligation to fund abortions or provide most government benefits. This is because our Constitution is generally seen as containing negative rights, not affirmative obligations. But there are exceptions. For example, the Sixth Amendment means that the government must pay for an indigent criminal defendant’s attorney. In his new article, Wealth, Equal Protection, and Due Process, Brandon Garrett argues that there are more exceptions than we usually think there are. Garrett shows that the Supreme Court has ruled that poor individuals are entitled to fair government treatment, creating a wider swath of government obligations to fund than we generally assume. The article’s reasoning and conclusions are powerful, especially at a time of great social inequality. Moreover, Garrett’s careful doctrinal analysis commendably avoids overreach.
Specifically, the article develops a concept called “equal process.” This term highlights the synergy between equal protection and due process in certain cases. Though not a completely new idea, the nomenclature is a useful descriptive tool, especially given some of the doctrinal complexity in this area. Garrett focuses in part on the underappreciated legacy of the U.S. Supreme Court decision in Bearden v. Georgia. In that case, the Court held that a judge could not reverse the grant of probation to a defendant, because of an unpaid fine or costs, unless the judge concluded after a hearing that the defendant willfully refused to pay, or had made an inadequate effort to obtain the resources. The judge also had to find that there were no suitable alternative remedies. In effect, the Court ruled that such a reversal must satisfy due process by fairly accounting for the defendant’s potentially suspect financial status.
Garrett shows how this kind of individual claim has succeeded in cases involving the setting of bail, driver’s license suspensions, and the imposition of various court costs. Recently, the Department of Justice even adopted a consent decree that required Ferguson, Missouri, the well-known site of a horrific shooting and race-based riots, to cease its regressive practice of imposing arbitrary court fines and costs. In 2018, a federal judge used similar due process reasoning to rule that Virginia could not just unilaterally suspend the driver’s licenses of 600,000 people who had not paid court fines or costs. Moreover, state actions like those in Virginia can also can have an impact on whether individuals with financial problems are eligible to vote, since such persons may not appear on driver’s license lists. One of the foundational cases supporting Garrett’s argument is Matthews v. Eldridge, which required the state to provide a sufficiently timely hearing regarding social security disability termination decisions and provided a general procedural due process formula depending on the costs, benefits, and risks of error.
Garrett suggests that the United States Supreme Court’s decision in the same-sex marriage case, Obergefell v. Hodges, could have more effectively used this equal process reasoning. Obergefell cites Zablocki v. Redhail, where the Court struck down a Wisconsin law that prohibited prisoners from getting married who were behind in child support. According to Garrett, Obergefell relied on Zablocki’s due process and equality components. Garrett argues that Obergefell could have emphasized the synergy of the equality and due process concerns even more clearly, and that doing so would have built a stronger precedent protecting LGTBQ individuals.
Garrett acknowledges that a major problem with his thesis is San Antonio Independent School District v. Rodriguez, where the Supreme Court upheld the state of Texas’s public school financing scheme, in which some schools received much less money per students than others. The Court said this was not intentional and that it was not a wealth classification. After all, wealthy kids live in poor school districts and poor kids live in wealthy school districts. Thus, the Court could use rationality review. Moreover, regarding due process, the Court said there was no fundamental right to a particular quality of education.
In a sense, the Court engaged in a “divide and conquer” strategy regarding the equality and due process claims. This reflects the kind of formalism that generally rules out conceptual “inter-sectionality.” The Court was also pre-occupied with not violating Texas federalism interests. Garrett’s generally excellent article could have devoted greater attention to Justice Marshall’s dissent in that case, which advocated a sliding-scale approach to judicial scrutiny when these two important interests are at stake. Marhsall’s proposal was even more fluid than the one Garrett offers, and perhaps superior.
The Court later negated a Texas rule, in Plyler v. Doe, that barred a free public education for undocumented children. The Court said it would be irrational for Texas to create a permanent underclass based on parental misdeeds. This is “rationality with bite.” The Court also explained how undocumented immigrants pay taxes and have low crime rates. Nonetheless, Rodriguez and some other cases remain problematic for Garrett’s approach.
Garrett’s article goes on to propose several creative potential uses of an equal process doctrine. In Trump v. Hawaii, the Supreme Court upheld travel restrictions applied by the federal government to individuals and refugees traveling to the United States from certain hostile nations. Though most of these people are Muslim, the Court found the directive to be a valid exercise of executive power over immigration. Importantly, the restrictions exempted green card holders, contained waiver provisions, and did not just cover Muslim nations. Garrett argues, however, that plenty of consular officials used their discretion to make decisions improperly “based on religion and ethnicity.”
Interestingly, Garrett also argues that equal process could have been used by the Court more clearly in Whole Women’s Health v. Hellerstedt. There, the Court struck down Texas requirements that abortion clinics renovate and become hospital-like facilities and that clinic doctors have admitting privileges at a nearby real hospital. These requirements meant that many Texas clinics would have to close, and that some women would have to travel hundreds of miles for an abortion, as well as satisfy a waiting period. The majority found that these restrictions imposed an undue burden on women, especially since most abortions are in the first trimester and have far fewer complications than childbirth. Garrett points out that this was an opportunity for the Court to show that the burden was especially unfair to indigent women, thus placing the wealth issue in the foreground and making clear once again the intersection between due process rights, wealth, and inequality.
These cases exemplify why sometimes joint harms really are more problematic and deserve more careful scrutiny. The equal process connection is at the forefront of litigation concerning the constitutionality of fines, fees, cash bail, and perhaps also soon to involve challenges to voting procedure. The connection between equality and procedure will be all the more important if provision of social benefits are reconsidered and expanded.
It is an interesting, insightful, and attractive argument. Unfortunately for its supporters, however, the Supreme Court’s current composition will surely stand in the way of such developments.
Cite as: Mark Kende, Constitutional “Equal Process” and the Problem of Poverty
(March 12, 2019) (reviewing Brandon L. Garret, Wealth, Equal Protection, and Due Process
, Duke Law School Public Law & Legal Theory Series No. 2019-14 (Jan. 14, 2019), available at SSRN), https://conlaw.jotwell.com/constitutional-equal-process-and-the-problem-of-poverty/
Say what you will about sports metaphors in legal writing, but Professor Mark Tushnet’s “constitutional hardball” descriptor has proven remarkably useful in capturing one of the most vexing political dynamics of our time: the political parties’ resort to “claims and practice…that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with…the ‘go without saying’ assumptions that underpin working systems of constitutional government.”
Recent examples of such practices abound. A short list might include efforts by lame-duck Republican legislators in several states to strip state executive offices of power before newly elected Democratic governors take office; the abandonment of the filibuster and embrace of nomination holds in judicial appointments; and refusals to raise the national debt ceiling in disputes over broader legislative priorities. In these terms, Democrats’ refusal to support the President’s call for wall funding is not hardball (for opposition party opposition to a presidential initiative breaches no norm); Republican refusal to allow a vote to fund any government operations unless Democrats agree to wall funding is hardball to a tee (so to speak) (for it breaches the norm of passing at the least continuing resolutions to allow government to function until compromise over particular agenda items can be reached).
After grappling with how we might best understand this behavior (from either side) as more or less destructive of our separation-of-powers scheme in his article Self-Help and the Separation of Powers, Professor David Pozen, here joined by Professor Joseph Fishkin, now takes on the daunting task of describing how such hardball tactics have been deployed in practice. Their primary findings: both parties play hardball, but Republicans do it more often than Democrats, and the reasons for this flow from the differing institutional incentives and ideological commitments of the parties. Whether one agrees with this assessment or not—and Fishkin and Pozen have generated multiple responses already—the piece will be necessary reading for those who are interested in understanding the phenomenon or in developing strategies to manage it.
The essay’s strong descriptive claim—that Republicans resort to hardball tactics more often than Democrats—is wisely introduced by first cataloguing the methodological challenges that confront any form of bean-counting in this context. As the authors note, the grounds on which one distinguishes constitutional law from constitutional norm is hardly settled. The counters themselves inevitably suffer from biases of their own, and the tit-for-tat nature of hardball tactics make it of some moment when in history one begins the count. Given such challenges, the authors disclaim any systematic attempt at measurement in favor of “a more encompassing, qualitative approach,” which involves “scour[ing]” the “legal, political science, and popular literatures on constitutional conflict in the political branches,” and highlights examples like the Republicans’ redistricting initiatives and the Democrats’ use of the recess appointments power when the Senate was still in (pro forma) session. While one may regret the absence of at least a somewhat more methodologically defined approach, the authors’ conclusion that Republican initiatives predominate is bolstered by their observation of several ambient phenomena. For example, while the Democrats have yet to adopt various Republican-initiated tactics (like debt ceiling brinksmanship or voter suppression measures), the Republicans have generally embraced Democratic hardball initiatives (like pro forma sessions in the Senate and filibuster elimination). Further, as political science has now well demonstrated, the Republican Party has moved farther to the right in recent decades than the Democratic Party has moved to the left. The reality of asymmetric polarization to date is at least consistent with the theory of asymmetric hardball.
Above all, as the authors detail, the parties’ differing institutional demands and ideologies suggest that Republicans’ disposition toward hardball tactics may be hard-wired in to their governing incentives in ways that they are not for Democrats. For instance, while both parties’ incumbents at times face primary fights with challengers from the far right or left, primary challengers have historically been far more successful in defeating Republicans than Democrats, meaning that Republican office holders in the lead up to the 2018 election included a larger share of relative extremists than Democrats. Likewise, a powerful network of outside Republican donors and advocates targets more moderate Republican Party members specifically, including those more inclined to embrace compromise positions, while key outside Democratic donors and institutional constituencies have continued broadly to favor establishment candidates.
As for contrasting ideologies, it is not hard to see how a party committed to smaller, limited government would be relatively more comfortable with hardball measures like government shutdowns and failure to raise the debt ceiling that would effectively render the government incapable of acting. Perhaps less apparent has been, as the authors describe it, Republicans’ growing “politics of constitutional restorationism:” the view that the entire post-New Deal growth of legislative and administrative agency power (among other things) is not only misguided but in some sense illegitimate from the outset. Given this, it should be less surprising that Republicans would also be relatively more comfortable than Democrats in abandoning twentieth century institutional norms that have the effect of blocking restoration of the ‘original’ constitutional scheme.
It is this last point that illustrates most acutely the dilemma of describing the phenomenon of constitutional hardball: The very real prospect that neither Republican office holders nor their constituents view the practices the authors highlight as hardball at all. While there is some question how much the restorationist beliefs the authors describe animate hardball practice day to day, to those who hold this view, it seems likely they see at least some of their conduct not so much as violating “unwritten norms of government practice,” but rather as upholding an actually written down constitutional rule. Pozen and Fishkin’s work suggests it may not be possible to escape the hardball era without at some point mapping in more specific terms whether and to what extent a particular norm exists, and whether and to what extent it grew up to supplant some pre-existing or latent commitment to an alternative constitutional settlement. For whatever the reality of hardball practice, it has become apparent that a fair number of our democracy’s “‘go without saying’ assumptions” actually need to be said.
Cite as: Deborah Pearlstein, Asymmetric Normalcy
(February 26, 2019) (reviewing Joseph Fishkin and David Pozen, Asymmetric Constitutional Hardball
, 118 Colum. L. Rev.
915 (2018)), https://conlaw.jotwell.com/asymmetric-normalcy/
Kevin Toh, Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation,
in Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy
(Lisa Crawford, Patrick Emerton, & Dale Smith, eds., 2018), available at SSRN
Kevin Toh’s Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation offers a fresh and lucid discussion of the relationship between constitutional interpretation and musical performance. Toh is by no means the first scholar to have observed the connection between the two pursuits: Jerome Frank, Richard Posner, Sanford Levinson and Jack Balkin, and others have noted and analyzed the shared nature of the challenges that judges and musicians confront. But Toh’s article, written in honor of the Australian philosopher Jeff Goldsworthy, offers a welcome contribution to this intriguing line of inquiry, mining the music-law analogy for rich and revealing insights about the values of authenticity and fidelity as they apply to both of these interpretive endeavors.
Toh begins his discussion by highlighting an oft-analyzed issue within the philosophy of music—namely, that of the “ontological status” of musical works (P. 3.) When we talk about songs, sonatas, symphonies, and the like, what exactly are the objects to which we refer? Toh dismisses the possibility that a musical work is equivalent to the physical score that demarcates it. (Scores, after all, can be annotated, shredded, or left at home, and that is hardly true as to a “cantata” or “concerto.”) He also rejects the possibility that a musical work equates to a “score-type”—an abstract representation of the score’s particular instructions (P. 3.) Score-types often fail to specify important components of a musical performance, including components that are “important enough to be considered nonoptional if the performances are to count as performances of the relevant works” (P. 4.) And he further rejects the possibility of treating the musical work as equivalent to the “meaning” of the score, where the score’s meaning is understood to be the performance that the score as a whole prescribes (P. 5.) This conception too, Toh argues, fails to acknowledge the fundamental incompleteness of the score’s demands. Plodding through the notes on a page is not the same thing as performing the piece. A “true” and “authentic” version of the piece requires phrasings, voicings, dynamics, and other expressive elements that the score does not always convey.
That leads Toh to another possibility: Perhaps a musical work corresponds to the “pragmatically-enriched meaning” of a score. If a work encompasses something more than the score’s abstract instructions, then that “something more” might be the “traditions or conventions governing interpretation and performances of the relevant music” (P. 5.) This expanded definition would no doubt narrow the gap between what a song consists of and what a score connotes. All the choices necessary to ensure an authentic performance might not appear within the four corners of the score, but the norms of a musical tradition might still be seen as incorporated by reference. And thus, the argument would go, when a performer has adhered to both the score’s instructions and the stylistic expectations of the relevant musical tradition, that performer can be said to have rendered a faithful representation of the work itself.
To Toh, however, even this expanded conception of a musical work would remain incomplete. The problem, as he sees it, is that some musical performances could still qualify as fully “authentic” even when they depart from the broader, “pragmatically-enriched” meaning of a score (P. 5.) Sometimes, that is, musicians who “take some liberties with the score, even in the pragmatically enriched . . . sense” will deliver performances that are “truer or more faithful to the relevant musical work, more authentic, than any that would adhere strictly to such a score” (P. 6.) Toh refers to such performances as “radically authentic musical performance[s],” or “RAMPs” for short.
Toh illustrates the concept of a RAMP with a hypothetical. Suppose that:
[t]he composer of a musical work and his audience had formed certain anticipations for performances of a work based on what he wrote, what the performance traditions or conventions for the relevant kind of work had been up to that point, and the instructions and tips that the composer had given to some musicians earlier. Then a new musician or ensemble comes along and delivers an electrifyingly new, even revolutionary interpretation. All, including the composer, are initially scandalized. The newcomers persist undaunted, however, and after a period of time, some critics, and the composer himself, are brought around. Eventually, the composer opines, and many agree, that the new interpretation is a ‘revelation’, and has enabled him and others to see the aspects or even the nature of the work that had hitherto eluded him and others. (P. 6.)
Toh offers some examples of RAMPs in action, but let me hazard an additional one from the domain of popular music. I (and I suspect others) have sometimes come across cover versions of songs that don’t just sound better than the original versions, but also, strangely, seem to adhere more faithfully to the “song” being performed. We can quibble about what entries belong on this list, but the general idea is that one musician might sometimes perform another’s work in a way that, while sounding quite different from the original recording, nonetheless better “captures the essence” or “gets to the core” of the source material. Hearing these covers evokes the thought: “Now that’s what that song was meant to be.” And by this we mean not that the cover conveys the performance the songwriter had always intended, but rather that the cover conveys a performance that better befits the song itself.
The idea of a RAMP suggests that our judgments about musical authenticity cannot be wholly disentangled from a deeper-level set of judgments about the nature of the work being performed. To some this might sound like nonsense: The most authentic performance of a musical work is the one that best aligns with what its author(s) and original audiences expected the work to sound like, period. But in a world that allows for the possibility of RAMPs, the “fidelity,” “purity,” or “truth” of a performance depends on not just the extent to which it sticks to the composer’s original plan, but also the fullness with which it realizes the potential that lies latent within the work. We might characterize such assessments as grounded in a sort of inner “logic” that emerges from the piece after its creation (P. 10.) Or, as Toh elsewhere speculates, we might even characterize such judgments as stemming from “what we find aesthetically valuable and interesting about that work or works of that type” (P. 19.) But however we ultimately communicate the point, a RAMP would represent a performance whose authenticity derives not from its similarity to whatever the composer of the piece envisioned, but rather from the listener’s own sense of what the piece itself demands.
Toh recognizes that our intuitions may vary as to whether something like a RAMP could ever exist. But if the intuition is correct, then it raises an interesting question about judicial work with written constitutions and, indeed, any form of written law. If performers can authentically interpret music while moving beyond a work’s pragmatically-enriched original meaning, then perhaps judges can do the same when they work with written legal texts, including constitutions. Just as musicians might sometimes render radically authentic musical performances, so too might judges render “radically authentic constitutional interpretations” (“RACIs”)— “performances” of a constitution that turn out to be “truer or more faithful to the constitution” precisely because they do not “strictly adhere” to the text’s “pragmatically enriched meaning” (P. 14.)
Toh’s claim here is not simply the familiar one that judges sometimes have good reason to depart from a constitution’s meaning (even in pragmatically enriched form). That would amount to a straightforward prescription for “non-originalist” judging, and so it would be subject to the standard stock of criticisms that such a prescription invites. Instead, Toh’s claim is that authentic constitutional interpretation might sometimes permit, or even require, judicial departures from the pragmatically-enriched constitutional text. And on this view, originalism and non-originalism need not stake out competing positions on the importance of interpretive fidelity as an adjudicatory value. Rather, non-originalists can be just as “committed to fidelity to the constitution as much as originalists,” while simply “believ[ing] that the constitution that judges must accurately reflect is not wholly constituted by the meaning of the constitutional text” (P. 21.) The non-originalist judge is not so much like the performer who decides to ignore the sheet music and play a better song. Rather, she is like the performer who regards the sheet music as only partially constitutive of the “song” to be performed.
It would be too facile, as Toh recognizes, to contend that that RACIs must exist simply because RAMPs exist (or vice versa). Constitutional texts and musical works are different in important respects, and those differences might end up supporting different conceptions of interpretive authenticity within each domain. Constitutions, unlike songs, exert binding force on people and institutions; constitutions, unlike songs, emerge from lawmaking bodies that claim a special authority to create them; constitutions, unlike songs, can be formally altered only through specifically-designated amendment procedures; and so on. But that is, in a way, the ultimate point of Toh’s extended riff on the music-law connection. What the example of musical performance helps to illustrate is that the ideal of interpretive authenticity depends at bottom on how we define the object to be interpreted. And, as Toh once again suggests, the question of how we define the object to be interpreted may depend, at least in part, on what we find “valuable and important” about the object itself (P. 19.)
This last observation tees up the final and most daunting question that Toh takes on: If our surface-level judgments about constitutional fidelity depend on deeper, value-laden conceptions of what counts as fundamental law, then is there an “ontology of constitutions, or of laws more generally, that would yield a conception of constitutional or legal authenticity that permits non-originalist adjudication, and at the same time meshes in the right and disciplined way with our normative interests”? (P. 21.) Toh has not fully worked out such an account, but he does here begin to sketch out how it might proceed. The central strategy involves the seeking out a “vindicatory natural history” of non-originalism—a sort of “state of nature narrative” that begins with some “initial situation” and spins out of that situation a tale by which non-originalism might have evolved to serve some salutary or worthwhile human needs (P. 21.) The idea is not to make any particular historical claim about how non-originalism actually came to be, but rather to tease out the most salient practical interests that legal systems help to serve—interests, perhaps, such as the coordination of collective behavior, the facilitation of long-term planning, or the expression of public values—and then to demonstrate, by reference to those practical interests, why and how non-originalism jibes with the most valuable and important features of the law to which it applies.
I won’t here rehash this last part of Toh’s paper, but I will certainly commend it to the reader’s attention. Suffice it to say that Toh’s roadmap of the argument, though tentative, is nuanced, wide-ranging, and challenging, drawing on the work of legal theorists, literary theorists, philosophers of art, social psychologists, and evolutionary biologists. And staying true to the topic at hand, the discussion highlights additional interesting connections between legal and musical interpretation, thus, in my view, further bolstering the case for thinking about these pursuits in tandem.
I’m reserving judgment as to whether this broader jurisprudential project can succeed, but Toh deserves credit for teeing it up in the way he has done so here. His insights about musical and legal authenticity are interesting in their own right and all the more so when considered together. They have left me rethinking some of my own assumptions about the nature of authenticity as an interpretive ideal, and they have raised plenty of follow-up questions that are well worth pondering on their own terms. Having previously assumed that the music-law analogy had run its scholarly course, I was delighted to encounter this powerful new variation on a well-worn theme.
Cite as: Michael B. Coenen, Of Constitutions and Concertos
(December 19, 2018) (reviewing Kevin Toh, Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation,
in Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy
(Lisa Crawford, Patrick Emerton, & Dale Smith, eds., 2018), available at SSRN), https://conlaw.jotwell.com/of-constitutions-and-concertos/
In recent years, there has been a resurgence of interest in the Gilded Age and the Lochner era. When one reads that the three richest Americans now control more wealth than the entire bottom half of the United States population, one cannot help but think of the vast wealth disparities between the Gilded Age’s railroad barons and oil tycoons and the masses of Americans who worked for them. For many, the Court’s recent decisions on topics such as unions and campaign finance likewise call to mind the Lochner era, in which legislative efforts to mitigate various kinds of inequality were sacrificed on the altar of “economic liberty.” But increasing income inequality and the neo-Lochner undertones of some of the Court’s recent decisions are not the only features of contemporary law and politics that call to mind the decades before and after the First World War. The resurgence of anti-immigrant sentiment and the current Administration’s pronounced efforts, both rhetorical and legal, to make clear who is welcome in this country and who is not echo in profound ways the xenophobic attitudes and acts of exclusion directed at “foreigners” in the early decades of the twentieth century. That is why Gabriel (Jack) Chin and John Ormonde’s recent article, The War Against Chinese Restaurants, so captured my attention when it was published earlier this year.
In this article, Chin and Ormonde recover the largely forgotten history of the national campaign, in the last decade of the nineteenth century and the first decades of the twentieth, to eradicate Chinese restaurants from the United States. Although the number of Chinese immigrants in the U.S. decreased over those years as a result of tight restrictions on Asian immigration, the number of Chinese restaurants skyrocketed. In 1870, Chinese restaurants employed 164 Chinese workers; by 1920, such restaurants employed over 11,400 Chinese workers. By that point, it had become clear that the “Chop Suey craze” was not just a fad. Americans seemed to have a limitless appetite for Chinese food. But the rapid proliferation of Chinese restaurants exacerbated powerful nativist anxieties about economic opportunity, immigration, and the racial make-up of the American polity. Unions in particular decried the diversion of jobs and money away from “the American wage-earner” and to “workers and employers from the Orient.” Union leaders feared that the low wages and low prices associated with Chinese restaurants would depress restaurant workers’ pay and deprive so-called American restaurants of much-needed revenue. Deeply intertwined with these apparently economic concerns was the widely-shared fear that Chinese immigrants constituted a threat to “traditional” American culture and that Chinese men, often portrayed as shifty opium-pushers, posed a threat to the safety of white women. Thus began a decades-long campaign, orchestrated by unions, politicians, and law enforcement officers, to eliminate Chinese restaurants from cities and towns across the country.
Chin and Ormonde provide a rich account of this campaign, and the shifting forms and rationales it assumed over time as it challenged and found ways to work around constitutional equality law. One of the first tactics unions turned to in their quest to force the closure of Chinese restaurants was the boycott. Boycotts of Chinese restaurants were common in these years, but they weren’t particularly successful. Unions fined their members to compel compliance, but the lure of the food (and the prices) was too great. There were numerous reports of union men, with an irresistible “fancy for Chop Suey,” “sneaking in the side doors of Chinese restaurants.” Union boycotts also sometimes ran into trouble in Lochner-era courts, which were fiercely opposed to union activity perceived to interfere with the operation of the free market.
When boycotts failed, unions sought to persuade policymakers and law enforcement officials to use the law to eliminate or restrict Chinese restaurants. At this point, the rationale for targeting these restaurants shifted dramatically. Increasingly, the perpetrators of the war on Chinese restaurants focused on the supposed threat these restaurants and their male employees posed to white women. This racial panic escalated dramatically after the 1909 murder of Elsie Sigel, a young white missionary from a prominent family, by a Chinese restaurant worker in New York. Sigel’s murder gave impetus to the campaign for bills all over the country banning white women from dining and working in Chinese restaurants. Numerous state legislatures considered such legislation, as did several municipalities. Interestingly, however, many of these bills encountered legal trouble. Equal protection law was not particularly robust in the early decades of the twentieth century. But many courts and commentators seemed to agree that these restrictions—“not imposed on any other restaurants”—were “plainly directed against the Chinese as a race” and thus contrary to the Fourteenth Amendment, particularly in light of the Court’s ruling in Yick Wo v. Hopkins.
Even more interesting, however, is what happened next. Largely unable to pass laws that facially discriminated against Chinese restaurateurs, opponents of such restaurants turned to facially neutral means of discrimination. Governments all over the country used planning and zoning ordinances, licensing regimes, and other ostensibly neutral regulatory measures to try to keep Chinese restaurants out of particular neighborhoods and close those in operation. In many places, these efforts got a big boost from police, who patrolled Chinese restaurants, harassing both the white women who tried to eat or work in them and the Chinese men suspected of corrupting those women. These forms of discrimination—often cast in facially neutral terms—were considerably more successful in subordinating Chinese people than the facially classificatory methods of discrimination often blocked by the law.
In an abbreviated section at the end of the article, Chin and Ormonde draw a few parallels between this history and contemporary law and culture. They argue that this history shows the pervasiveness of racism: its lack of confinement to any particular region of the country, its long-lasting effects, and the way it has reserved superior economic opportunities to whites. But it is a testament to the richness of the story they tell that there is so much more one could say about the contemporary relevance of this history. The history they recover illustrates how early in the life of the Fourteenth Amendment lawmakers began to turn to facially neutral means to preserve the racial status quo and how much of the subordination of historically oppressed groups is attributable to laws and policies that do not formally classify on the basis of race. This history illustrates in a particularly vivid way how dramatically the Court constricted the ability of equal protection law to combat racial subordination when it decided forty years ago essentially to give a free pass to facially neutral state action despite any disparate effects it may have on historically subordinated groups.
There’s also a powerful story here about gender and its interaction with race. In 1909, xenophobic lawmakers exploited the murder of Elsie Sigel to argue not only for the elimination of Chinese restaurants but for a sharp reduction in Chinese immigration. Today, opponents of Mexican immigration make similar use of the murders of Katie Steinle and Mollie Tibbetts; the current President justifies his harsh stance on immigration by invoking the specter of Mexican rapists. But it is not just the depressing longevity of the strategy of stoking fear about the defilement of white women to justify the harsh treatment of racial minorities that’s interesting here. So much of Chin and Ormonde’s article is actually about women at work—Chinese women who were rendered invisible and subordinated by the portrayal of Chinese restaurant workers as sexual predators and white women who were barred from vast numbers of jobs in the name of protecting them from an imagined threat to their wellbeing. It is instructive to read The War on Chinese Restaurants in the #MeToo era, the era of the Kavanaugh hearings and the President’s Access Hollywood tape. This piece of history helps one to see more vividly how manufactured panics about the dangers of non-white immigrant men—then and now—enable those in power to obscure where the real threats to women lie.
Editor’s Note: For a previous review of The War Against Chinese Restaurants, in the Legal History section, see Joanna Grisinger, Restaurants and Regulation (November 7, 2018).
Cite as: Cary C. Franklin, Acts of Exclusion
(November 21, 2018) (reviewing Gabriel J. Chin & John Ormonde, The War Against Chinese Restaurants
, 67 Duke L.J. 681-741
In Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay, Amanda Tyler undertakes “to lay out as comprehensively as possible the full story of the legal and political history of the constitutional privilege of the writ of habeas corpus.” She does so with care and style.
In excavating what she calls the “forgotten” Anglo-American legal history of the writ of habeas corpus, Tyler begins, of course, at the beginning, in seventeenth-century England. Among the products of Parliament’s longstanding battle for power with the crown, the original Habeas Corpus Act of 1679 provided that a person who could claim the protection of English law could be detained—that is, imprisoned by the king and his ministers—only through timely criminal prosecution and conviction. Absent timely prosecution, the Act required the prisoner’s discharge. Period.
Because the Act made no allowance for wartime or other emergency detentions, however, ten years later Parliament scrambled to create an exception by inventing the concept of suspension—in which Parliament (but not the crown) could suspend the Act’s protections during times of crisis. But once a suspension expired, the Act again put the government to a clear and simple choice: either prosecute the detainee or release him. Period.
A century later, England’s view that the Habeas Corpus Act did not apply in America was among the colonists’ major grievances: England denied that Americans were entitled to the rights of Englishmen, while Americans believed otherwise. After the Revolution, each of the newly united states quickly enacted statutory or constitutional habeas corpus protections (or both) of their own, such that a half-century later Joseph Story’s Commentaries concluded that the Act had been “incorporated into the jurisprudence of every state in the Union.”
The drafters of the new national government quickly followed suit. Those at the Philadelphia convention sought to improve on English protections of individual rights by expressly limiting the Constitution’s suspension power to those times “when in Cases of Rebellion or Invasion the public Safety may require it.” The early Congress took this limitation on its power to suspend seriously—so seriously that it rejected the first proposal for suspension, made by then-President Thomas Jefferson in response to Aaron Burr’s military conspiracy.
Not until the Civil War did the United States see its first suspension of the writ, famously (or infamously) asserted by Lincoln as President. Tyler concludes that Chief Justice Taney had the better argument—certainly backed by history—when he concluded that suspension is a legislative and not an executive power (Congress eventually passed legislation that delegated the power to Lincoln). But everyone, including Lincoln, agreed that suspension was necessary before the government could detain persons outside the criminal process who, like Confederate sympathizers, could claim the protection of American law. And shortly after the War, during Reconstruction, Congress authorized President Grant to suspend the privilege to deal with rising Klan violence in the South.
Well into the 20th century, as Tyler painstakingly documents, the consensus understanding remained consistent: “[T]he origins and long-standing interpretation of the Suspension Clause understood it to prohibit the government, in the absence of a valid suspension, from detaining persons who can claim the protection of domestic law outside the criminal process, even in wartime.” Even in wartime. Especially in wartime.
But World War II brought the sea change in which this longstanding understanding was “forgotten.” The United States government forcibly relocated and detained 120,000 Japanese-Americans (70,000 of whom were American citizens) without criminal prosecution and without a suspension of habeas corpus. Initially, Attorney General Francis Biddle advised that no such detention could occur without a suspension of habeas corpus protections. He later backed down, recounting still later that “the Constitution has never greatly bothered any wartime President.”
But the President was not alone. Not only did a majority of the Supreme Court infamously find that the federal government’s action, concededly based on race and national origin, did not violate its equal protection obligations under the Due Process Clause, but it made no mention of habeas corpus protections, much less the conspicuous absence of any suspension. (As a matter of equal protection, the contemporary Supreme Court only recently finally made clear that Korematsu “was gravely wrong the day it was decided.” But still no mention of habeas corpus.)
Fast forward to the contemporary war on terror. Tyler explains how the World War II experience paved the way for the federal response to 9/11, backed by the Supreme Court in Hamdi v. Rumsfeld,, which permits the detention of U.S. citizens on American soil as enemy combatants, outside of the criminal process and absent any suspension. As Tyler explains, that response is inconsistent with historical practice (prior to World War II), as well as the framers’ understanding
And although the Court in Boumediene v. Bush, concluded that Guantanamo detainees enjoyed habeas protections, it did not order “the traditional remedy of release from custody” even though Congress has not suspended the privilege, nor had they been criminally charged. The Court instead held that the detainees were entitled to greater opportunity to challenge their designation than Congress had offered them by statute. Tyler suggests that the Court has conflated, if not confused, Due Process Clause precedent with the habeas privilege in a way that undermines habeas protections. The historical understanding of the writ required prosecution, suspension, or release—one of those three things, and no other. Today’s Court has instead devised a balancing test in which detention can last for the duration of the conflict—in other words, indefinitely and perhaps as long as the detainee’s life—so long as a tribunal assesses the government’s claims to support the detention. That’s not the same.
To be sure, Tyler doesn’t insist that reliance on historical tradition is the only or necessarily the best approach to constitutional interpretation (nor does she address the role of habeas outside the wartime context, and many may be eager to hear her views on its application in the immigration setting or in other criminal justice contexts). She instead emphasizes that history is relevant and valuable, and thus that it should be part of the discussion. There may be good reasons to depart from historical understandings and practices. But it’s hard to see any good reason for failing to discuss that backdrop altogether, much less failing to explain when and why to abandon or alter longstanding and fundamental traditions.