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“I have seen the future…” “And it works?”

David E. Pozen, Eric L. Talley & Julian Nyarko, A Computational Analysis of Constitutional Polarization, 105 Cornell L. Rev. 1 (2019).

The moment is at hand. No longer self-consciously experimental, computational analysis now comes to constitutional law in an ambitious effort pursued by David Pozen, prominent in the field at Columbia; his Van Halen-like colleague Eric Talley, known especially perhaps for his law and economics theorizing and his corporate and contract law investigations – and Julian Nyarko, newly arrived at Stanford as a practicing computationalist interested first of all in contract law. Their project takes up the question of polarization and its pertinence constitutionally, an issue that has become more prominent in the past few years.

The effort at one level is straightforward. It turns out that all remarks made by members of Congress, on both the House and Senate side, dating from 1873 to 2016, now exist in a collected, computer analyzable form. What might we learn if we read all these speeches? We can’t, of course – too much to know, too much information to acquire and think through, even if we read quickly rather than carefully. Machines read too, assimilating many more documents much faster. But they read their way – sorting words, counting uses, noticing conjoint and disjoint patternings, and the like. We need to know what we know, therefore, when we read machine-reading results. Pozen, Talley, and Nyarko show us how they assembled their mechanism and the decisions they had to make in order to ready their computer for work. These decisions become a sort of pedigree.

Word frequency lists as such are not the main focus. Instead, the idea is first to check legislator vocabularies against constitutional dictionaries. These last are collections of words that count as “constitutional” terms. The word “constitution” itself and its immediate modifications like “unconstitutional” and “nonconstitutional” generate a first dictionary. Words included in the U.S. Constitution fill up a second collection. Words seemingly part of ordinary discussions of immediately constitutional terms become a third grouping. The computer is instructed to search out, accumulate, and report incidences of these constitutional usages in congressional talk.

Because the speakers’ party affiliations are known, the computer can determine within given periods whether members of one party or the other are more prone to constitutional usages, and whether given usages vary or not with party membership. Pozen, Talley, and Nyarko put together training lists of constitutional usages in recent periods in order to suggest versions of “right” and “left” groupings, tuning the lists to match very well with Republican and Democratic affiliations of speakers. These groupings are made available to the computer to predict the party affiliations of congressional members within the larger sets. This in turn allows the computer to assess degrees of orthodoxy among party members.

All this effort (and more – including comparisons with Wall Street Journal and New York Times editorial usages), all parts carefully designed, executed, and reported, allow the study to state findings concerning constitutional polarization. Especially provocatively, it appears, both Republicans and Democrats made frequent use of constitutional terms in the most recent period (not so in other ranges). But the terms differed considerably depending on party affiliation. This may be evidence, the authors suggest, of strong constitutional polarization. It is as though two ships “Peerless” pass in the night (as Professors Talley and Nyarko might have put it).

This is too terse. It is clear nonetheless that the work here is very good indeed. What should we make of it? Should we want to read exercises of this sort? Assemble them ourselves? “Might as well jump?” The great value, I think, is old-fashioned. Observing closely what this effort involves, we are driven quickly from initial skepticisms to thinking about helpful differentiations and elaborations.

First, we notice that constitutional usage is reduced to piles of words. Sorting words is good work for computers. But we “not-computers” tend to believe we proceed otherwise. Of course, “we” may not be a homogeneous set. Are members of Congress engaged in the same efforts as judges or lawyers or academics? Consider: Sometimes constitutional terms — words, sentences, passage, entire documents – are considered closely, as elements in efforts to think intensely and independently about seemingly difficult and important matters. On other occasions, constitutional terms are treated as “doctrine” – standard formulas framed as rules and exceptions or levels of scrutiny or test steps – in order maybe to achieve institutional uniformity or integrity. In other instances, terms are pretty much emoji. They communicate attitude or intensity, mark normative postures, stand up or stand down (we might say).

All three modes are sometimes apt. But in different settings each might be more or less salient. We might imagine members of Congress who think hard and originally about basic constitutional questions. Regrettably, John C. Calhoun comes to mind. Bruce Ackerman suggested that the remarks of Hubert Humphrey and Everett Dirksen in the course of congressional discussion of the Civil Rights Act of 1964 should rank high. Often, it is easy to suppose, legislators proceed within established doctrinal fences. Or—maybe even more frequently—they use constitutional references and resonances to signal stances, to evoke ideological allegiances and intensities – to cast “emojis” as though fly fishing. This last use is formally a kind of mirroring or borrowing, or maybe translation, of attitudes or commitments or aversions already in play in society at large. These captures may be politically sharply relevant – and if reused often enough may become constitutional content by association. Effective trademarking maybe, purposefully derivative, these constitutional cartoons are in themselves neither analyses nor close “doctrinal” maps. But none of these three modes are, in any general way, inappropriate.

Second, we also readily recognize that polarization might be pictured from a dramatically different angle. It is not surprising if political parties understand their own agendas in differing, sharply distinct terms. We remember 1800 and its very hard hardball. “Popular sovereignty” and “freedom national” were at bottom opposing constitutional notions in the 1850s, ultimately fiercely held. Cataclysm and constitutional re-grounding followed, we know, unresolved controversies were renewed within new terms, fought in new ways even now.

It is also plausible to think that some polarizations involve refusals to recognize new constitutional understandings as constitutional at all. The dramatic devices of the sit-in sparked civil rights movement often found only awkward constitutional protection, and opponents (notably, otherwise low-key Lewis Powell) denounced that movement as anti-legal and best forgotten. We remember John Lewis well as an individual, bravely hard-headed. But he is less often celebrated as one participant among many other animators of a remarkable democratic leviathan.

We know all this, of course. We worry whether we ought to be able to take steps – discover our inner Henry Clay, as it were – to manage constitutional crises in advance of full out collision. Pozen, Talley, and Nyarko offer us a diagnostic device. The groupings of constitutional dictionary entries they are able to discern are accumulations of instances. These gatherings might be useful preliminaries if we try to impute interior thematics. This is work on our part, not the computer’s. These thematics are the jurisprudential equivalents of literary criticism, plainly not themselves computational, but rather re-visioning computational heaps as harbingers, maybe pointing to Dworkin-like enterprises in the end.

Against this backdrop, we remember Eric Talley earlier on. Writing with Ian Ayres, Talley restated the notion of Solomonic bargains as a question of dividing entitlements, suggesting that such divisions ex ante — more precisely, our responses to them – sometimes worked later to facilitate improving rearrangements.1 The beginnings of bargaining begin in the disorganization of law. Arbitrageurs read jurisprudence. This article continues to reward close study (not just snap-shot sloganeering) – maybe especially as constitutional analysis one-step disguised. For present purposes: Sometimes as we judge congressional constitutional polarizations, we may search out possible cut constitutional or other legal entitlements as building blocks and begin to sketch bargaining paths as responses. Computational mechanics looks to be part of the beginning stuff of law itself, a first lens in recognizing structural breaks and bends and thus potential rapprochements. Sometimes, anyway. In other instances, the cut entitlement will look to be profound, its remedy not necessarily some sutured recombination.

Not only congressional remarks: constitutions, statutes, judicial opinions, all the rest – these are just words, aggregates and arrangements open to study. Computational analytics frame the window, plot paths into and around or through legal complexities we otherwise see as dense to the point of darkness. Pozen, Talley, and Nyarko touch down on law’s documentary substrate. This is law-at-first they are writing.

  1. Ian Ayres & Eric Talley, Solomonic Bargaining: Dividing a Legal Entitlement to Facilitate Coasean Trade, 104 Yale L. J. 1027 (1995).
Cite as: Pat Gudridge, “I have seen the future…” “And it works?”, JOTWELL (January 20, 2021) (reviewing David E. Pozen, Eric L. Talley & Julian Nyarko, A Computational Analysis of Constitutional Polarization, 105 Cornell L. Rev. 1 (2019)), https://conlaw.jotwell.com/i-have-seen-the-future-and-it-works/.

The Two-Body Problem

Daphna Renan, The President’s Two Bodies, 120 Columbia L. Rev. 1119 (2020).

For reasons that remain mysterious, the past four years or so have seen a distinct rise in interest among public law scholars in the concept of “office” and surrounding ideas. What is an office, precisely? Is its defining feature one of powers—or of duties? What is the relationship between the office and the person occupying it? Do the powers and duties connected to that office inhere in the office, the officer, or some mixture of both? Can an officer speak for him- or herself, or is that speech always “official?” What is the relationship between office, officer, and the oath of office? Does the idea of fiduciary duty illuminate such questions, or obscure them? Of course these questions have a long pedigree. But since roughly 2017, this broad topic has seen a distinct upturn in scholarly work. One hopes it is not temporary or expedient.

Scholarly work on the question of office can take different approaches—legal or political, practical or theoretical. It can attain a level of abstraction that may yield general insights but few prescriptions—this is my own preferred sin—or give very precise recommendations that are hard to tie firmly to the legal, historical, or philosophical materials. (This is one way, in my view, to read a recent critique of “fiduciary constitutionalism,” even if one thinks the concept is worth exploring.) If one wants to avoid one or the other extreme, one had better be willing to live with tension and ambivalence. That position makes many law professors uncomfortable, given their own normative inclinations and the political and professional incentives that drive them. But it can be achieved—and beautifully, at that. Such is the case with Professor Daphna Renan’s recent article, The President’s Two Bodies.

Renan’s subject is “a central paradox in the structure of American constitutional government.” That paradox relates to any officer, but the keystone example and the subject of this article is the chief executive. Although the Constitution “split the atom of sovereignty,” its roots lie in English legal and political history, and there we find a long concern, both political and metaphysical, with the nature of the king’s authority as sovereign and chief executive. The classic treatment is Ernst Kantorowicz’s book The King’s Two Bodies, which explored the dual nature of the king, in English law and politics, as both an individual monarch with a “body mortal” and an enduring “body politic”: king and kingship, one person with two distinct but indivisible aspects.

Renan traces the idea of the king’s two bodies in changed form through the American presidency along three dimensions, noting the different visions of the presidency that emerge, and the tensions that are produced, from the king/kingship model in each dimension. One is the “personal/impersonal” dimension, arising from the “interdependence of the person and the office of the presidency,” which “belies efforts to make the President’s personal and official character fully severable.” She offers as an example the debate between Justice Jackson and Chief Justice Vinson in the Steel Seizure Case. Here, Vinson stands for the view that “the president’s individual judgment is not an extraconstitutional impulse but a facet of constitutional leadership itself,” while Jackson concedes the charismatic element of the American presidency but sees “the role of constitutional law” as being “to offer a counterweight to presidential charisma in the form of the separation of powers.”

The second conceptual distinction is between the temporary and continuous nature of the presidency. On the one hand, the presidency is a continuing institution that exists and acts across particular administrations. On the other, each president is elected in substantial measure for his or her charismatic vision and is expected to “implement a particular policy and ideological” program. An example of this tension can be found in the law and practice around executive orders, which enable each entering president to put his or her stamp on the office but are constrained, in practice, by procedural norms and rules of “process and publicity” that strengthen the legitimacy and legality of an executive order but also entrench it against sudden changes of course by the next administration.

Finally, there is the “singular/composite dimension,” embracing the distinction between the executive as a particular individual in whom the Article II power is vested and as a corporate institution arising from the fact that “the execution of presidential power,” especially given the nature and reach of the modern executive branch, “requires a collective.” Thus, in Trump v. Hawaii, Chief Justice Roberts’s opinion “embraces an impersonal, thoroughly institutional presidency,” in which the president’s own tweets are less important than the evidence of some proper institutional process in coming up with later iterations of the “travel ban.” By contrast, in Justice Sotomayor’s dissent, what matters is “executive ‘unitariness,’” and “the person of the president cannot—as a legal matter—hide behind the façade of an orderly office.”

Along each of these dimensions and across many issues, Renan argues, the idea of “the President’s ‘two bodies’ has been at the crux of ongoing debates about presidential power,” and the duality of the presidency has been “the defining ambiguity, the central paradox of the constitutional office.” Even as particular decisions and elements of presidential power can be understood better from the standpoint of one vision or another, taken together the duality “plays a mystifying or obscuring role,” while also serving as a constitutive feature of the modern presidency. It “orients practice toward certain fundamental, though conflicting, ideas about what the exercise of presidential power should actually entail,” such as the fundamental—and conflicting—desires for both a charismatic leader to occupy the “body mortal” and a constrained and time-extended executive branch to fulfill our need for a stable “body politic.”

How to resolve this paradox? One of the most admirable and frankly refreshing aspects of Renan’s article is that she does not suggest it can be resolved. We can understand the paradox better, identifying it at work and tracing its complex effects. But we cannot eliminate it. She states forthrightly: “Public law theory cannot solve or somehow move beyond the two-bodies paradox. But it can get the nature of the problems right.”

This is no small thing. That’s certainly true stylistically. Any reader of law reviews gets used to articles that consist of, in effect, 40 pages of second-hand journalism recounting some “new” issue, combined with five or ten pages of a draft statute or judicial opinion; or, on a higher plane, articles with a substantial, nuanced, and fascinating discussion of a legal problem, combined with a cursory, un-nuanced, seemingly obligatory “solution” section. Anything that breaks out of that format is a pleasure to readers.

The approach exemplified by Renan’s article also has disciplinary benefits, and those benefits are of special (but not unique) importance to public law. It is a field that offers many opportunities for technical fixes, on the one hand, and big ideas on the other. Both have their value—and both are diminished by a tendency, reinforced by law review gatekeepers and then reproduced within the academy, to jam the two together. The combination produces less than the sum of its parts. A big idea that is not allowed to end with a question mark is deprived of its full creative potential and often results in the most interesting problems being waved aside, or cut so the cloth can be tailored to the (often politically over-determined) garment. A narrower, more technical fix is more likely to be treated as lacking in prestige if it is not tied to a largely unnecessary 50-page lead-in and gaseous pronouncements about its “broader implications.” We would be better off if leading law reviews were more eager to publish shorter and more “narrow” public law pieces that strip away the extraneities and work on solving one problem at a time—and if “big” pieces abandoned any felt need to wrap things up cleanly with one prescription or another.

This is Renan’s approach here. In examining “the relationship between the person of the president and the office or institution of the presidency,” she does not plump for one vision over the other, but recognizes that both have worked themselves into the fabric of the “presidency,” broadly understood. Just as important is the relationship between them, which makes the chief executive “an amalgamation of the individual president and the institutional presidency.” Unless we more clearly understand the uneasy coexistence of both visions and which vision is being invoked in a particular case, we can expect not only accidental “incoherence in our law,” but also “opportunism,” as officials (including executive branch lawyers) appeal to one or the other line of thought depending on their goals.

I do not mean to overstate the size of the question mark or the degree of abstraction in Renan’s article. It is certainly not abstract. The examples I cited above are only three among many concrete treatments of particular legal issues: executive privilege and immunity, the role of presidential intent and of executive branch institutional processes, the role of the White House Counsel, the extent to which the executive branch can bind future administrations through litigation settlements or consent decrees, and others. Nor is Renan silent on the question of how we might best “integrate” the competing visions of the presidency. Here, her conclusion is that “legal engagement with the two-bodies paradox must come at a more retail level, context by context.” Our answers should focus not on the duality itself, but on the substance of each particular issue. That may leave a good deal of open ground, but lack of a definitive resolution is not the same thing as being irresolute.

It is possible, I venture to add, that we might bring in some of the concepts that have arisen in the context of fiduciary constitutionalism and elsewhere, as in Philip Hamburger’s Law and Judicial Duty—or, still further back, in Cicero’s De Officiis—to think further about the ways in which we have attempted to marry individual and institutional conceptions of governance. The relationship between person and institution is not new, and we have long sought means of effecting a “constitutional marriage of personality and impersonality.” The concept of office itself is a way of doing so, by tying the power of an office to the duties that are fundamental to that office. “What are the highest places,” a judge of the English Court of Common Pleas once asked, “but obligations of the greatest dewties?” Such an approach is embodied in the oath of office itself, which personalizes in the office-holder those sense of duties. And it relies in turn on a “proper sense of honor,” as Washington called it, under which not power or charisma or satisfaction of particular wants, but integrity in the performance of office, are the keys to being held in high regard by others and by oneself.

I doubt any of this can be liquidated into a set of mechanical prescriptions. It is no more certain an answer to particular questions than Renan’s injunction to consider the individual constitutional commitments involved in each particular issue. And it certainly partakes of what may seem an archaic set of motivations and values. But “archaic,” in my view, is a description, not a criticism. It may be that more people now more fully appreciate the extent to which personal character and a sense of honor and promise-keeping are necessary qualities in even the most bureaucratized democratic state, and a necessary counterweight to the charisma that people of all stripes seem to want from our presidents. One hopes they will keep the lesson in mind.

In any event, the overall emphasis in Renan’s article is on what can be better understood but not finally answered. “Even as the two-bodies prism illuminates a crucial role for public law in constituting ‘the President,’” Renan concludes, “it also underscores the limits of law and legal methods in managing its defining ambiguity.” We can better understand the fundamental elements of the presidency and how they interact, but no alchemical formula exists that can transmute them into a single perfect substance. That is a more than satisfactory answer in a tremendously satisfying paper.

Cite as: Paul Horwitz, The Two-Body Problem, JOTWELL (December 16, 2020) (reviewing Daphna Renan, The President’s Two Bodies, 120 Columbia L. Rev. 1119 (2020)), https://conlaw.jotwell.com/the-two-body-problem/.

Reproductive Health Care Exceptionalism and the Pandemic

The term “reproductive health care” encompasses safe access to gynecologic and obstetric care, prenatal care, the prevention of sexually transmissible disease, contraception, and abortion. The term “reproductive health care exceptionalism” refers to the ways in which law and medicine frequently single out reproductive health care services, particularly contraception and abortion, for different and disadvantaged treatment. In Essentially Elective: The Law and Ideology of Restricting Abortion During the Covid-19 Pandemic, Jessie Hill builds on her thoughtful and important body of work on reproductive health care exceptionalism—and its impact on women’s lives.

Examples of reproductive health care exceptionalism include the special Due Process Clause rules that the Supreme Court applies to the government’s regulation of abortion. Normally, courts apply strict scrutiny to the government’s restriction of a fundamental right; this requires the government to show that its choice is narrowly tailored to serve a compelling government interest, a burden that the government rarely meets. But while Planned Parenthood of Southeastern Pennsylvania v. Casey purported to reaffirm Roe v. Wade‘s holding that a woman’s decision about whether to have an abortion is a fundamental right protected by the Due Process Clause, the Casey Court nevertheless applied a new, more government-friendly, test to the government’s regulation of abortion. More specifically, Casey announced the “undue burden” test for assessing the government’s restrictions on abortion, a test that is much more forgiving of the government than strict scrutiny—and a test with contours and applications that remain deeply contested, as most recently illustrated by the Court’s fractured opinions in June Medical Services, LLC v. Russo.

For an earlier illustration of how reproductive health care exceptionalism discounts the medical importance of women’s ability to control whether and when they procreate, recall longstanding state laws barring the use and sale of contraceptives, laws eventually invalidated in Griswold v. Connecticut. As Reva Siegel and Neil Siegel have recounted, these laws frequently permitted the sale of condoms as medically necessary because they prevented the transmission of disease—but not contraception available only to women that “simply” prevented unwanted pregnancy. The Connecticut Supreme Court even declined to interpret its state’s statute to permit such contraception when pregnancy would put the woman’s life at risk; as Mary Dudziak has documented, the court instead suggested abstinence as the appropriate remedy. In so doing, these states treated women’s decisions about whether and when to procreate as distinct from decisions about medically necessary matters.

More recent examples of reproductive health care exceptionalism include the Department of Health and Human Services’s new rule that interprets the Affordable Care Act to require covered health insurers to send their insureds two separate bills each month: one singling out the portion of the policy’s premium allocated to abortion-related services (generally a dollar) and another for all other health care services covered by the premium. The rule also requires insurers to instruct policyholders to pay the two premiums separately, either by two separate checks or by two separate electronic transactions.

In earlier work, Professor Hill has explored in detail how reproductive health care services like contraception and abortion are isolated physically, legally, and doctrinally from health care more generally—and how this isolation, this exceptionalism, injures women. Writing in 2016, for instance, she examined how courts and policymakers increasingly treat contraception and abortion as political or ideological choices rather than as health care choices, and how this shapes law and policy in ways that disadvantage women. Among other things, she anticipated the Court’s 2018 ruling in National Institute of Family and Life v. Becerra that invalidated, on First Amendment grounds, California law that required “pregnancy service centers” to disclose two sets of objectively verifiable facts to the pregnant women they sought to persuade to continue their pregnancies to term. First, the law required unlicensed pregnancy service centers to inform women seeking reproductive health care services that the centers are in fact unlicensed because they employ no health care professionals. Second, the law required licensed facilities to inform women that the state offers free or low-cost reproductive health care, including prenatal care, contraception, and abortion. In preliminarily enjoining California’s law, the Court’s 5-4 majority said not a word about how pregnant women would find this information helpful to their health care decisions; instead, it focused only on the interests of the speakers who resisted truthful disclosures while seeking to influence those women’s decisions (I’ve discussed the Court’s exceptionalist Free Speech Clause approach to these issues in more detail here).

Hill suggests that if all reproductive health care decisions—including the decision to prevent unintended pregnancy—were seen as medical matters, policymakers and courts might be slower to single out contraception and abortion for disadvantageous treatment. To this end, she urges that we understand reproductive health care through a medical framework that recognizes these as medical decisions, as well as through an equality framework that understands them as key to women’s political, social, and economic equality.

Essentially Elective furthers this body of work by examining the problem of reproductive health care exceptionalism as illustrated by states’ regulation of abortion in response to the COVID-19 pandemic.

This past spring, government officials in several states interpreted their states’ executive orders that halted the delivery of “elective,” “non-essential,” or “non-urgent” medical treatment to stop or indefinitely delay many (if not most) surgical, and sometimes medical, abortions.

Yet, as a statement by the American College of Obstetricians and Gynecologists quickly made clear, “a delay of several weeks, or in some cases days, may increase the risks or potentially make [abortion] completely inaccessible. The consequences of being unable to obtain an abortion profoundly impact a person’s life, health, and well-being.” Shortly thereafter, the American Medical Association issued its own statement emphasizing that “physicians—not politicians—should be the ones deciding which procedures are urgent-emergent and need to be performed, and which ones can wait, in partnership with our patients.”

The states’ actions prompted litigation seeking emergency relief to keep abortion clinics open—litigation unnecessary to protect any other medical procedure during this period. The results in the federal courts of appeal were mixed: the Sixth and Eleventh Circuits protected a relatively wide range of abortion procedures from the orders’ interference, while the Fifth and Eighth Circuits permitted a smaller number of procedures to continue.

In the medical community, Hill tells us, the term “elective” simply refers to those procedures scheduled ahead of time. But policymakers and the public often understand the term to mean procedures like cosmetic surgery that are not medically necessary. In the abortion context more specifically, policymakers often refer to the overwhelming majority of abortions in the United States—that is, those where the woman decides to have an abortion for “reasons related to [her] unreadiness or inability to parent a child (or an additional child)”—as “elective.” Anticipating the possibility that Casey may soon be overturned (since the various opinions in June Medical make it hard to identify a majority of the current Court willing to preserve it), she predicts that some, perhaps many, states may respond with laws that prohibit “elective abortions” while permitting those deemed “medically necessary.” As Hill observes, “[t]his problematic definition of ‘elective’ abortion is a form of abortion exceptionalism, as it uniquely stigmatizes the abortion decision and adopts a concept of electiveness that would not apply to other surgeries. The notion that abortions chosen for particular reasons are somehow optional or non-therapeutic implies that the natural and expected course for all women is motherhood and that terminating a pregnancy is a ‘choice,’ but continuing one is not.”

To address the problem of reproductive health care exceptionalism, Hill proposes that we “integrate abortion into the health care framework by viewing patients’ abortion decisions as analogous to other patients’ health-care decisions.” To this end, she suggests that scholars and advocates avoid the use of “elective” in this context, and instead recognize that avoiding unwanted pregnancy is a medical decision with a wide array of physical, financial, social, and other life-shaping consequences.

The more we understand decisions about contraception and abortion as medical decisions, Hill concludes, the better to resist efforts to restrict access to reproductive health care—by rendering illusory the distinction between “medically necessary” and “elective” reproductive health care services and by empowering individual women and their health care providers to make these medical decisions free from the government’s second-guessing.

Cite as: Helen Norton, Reproductive Health Care Exceptionalism and the Pandemic, JOTWELL (November 9, 2020) (reviewing B. Jessie Hill, Essentially Elective: The Law and Ideology of Restricting Abortion During the Covid-19 Pandemic, 106 Va. L. Rev. Online 99 (2020)), https://conlaw.jotwell.com/reproductive-health-care-exceptionalism-and-the-pandemic/.

To Delegate or Not to Delegate: Celebrating a Scholarly Exchange About Originalism and the Nondelegation Doctrine

Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. __ (forthcoming 2020), available at SSRN.

A riveting originalist debate over the nondelegation doctrine is currently playing out in the legal academy. The nondelegation principle suggests, in part, that “Congress cannot delegate its legislative power to the executive.” In their recent article Delegation at the Founding, Professors Julian Mortenson and Nicholas Bagley argue that the framers originally understood the Constitution to permit such delegation. In a forthcoming essay in the Yale Law Journal, aptly titled Nondelegation at the Founding, Professor Ilan Wurman takes the opposite position.

As a policy matter, the answer to the question whether Congress can delegate some legislative power to the executive branch could have a profound effect on the way our federal government regulates various aspects of American life. Justice Kagan has warned that a robust application of the doctrine could lead to the conclusion that “most of Government is unconstitutional,” including the promulgation and enforcement of many consequential environmental, labor, and other regulations. Some proponents of the nondelegation doctrine reply that these and other regulations involve difficult policy choices that—in the interest of democratic accountability and the preservation of liberty—Congress should not be able to pass off to the executive branch.

Professors Mortenson and Bagley, as well as Professor Wurman, bracket these normative issues and explore a different question: At the time it was ratified, was the Constitution understood as prohibiting the delegation of legislative power from Congress to the executive? The answer is important. Multiple Justices on the current Supreme Court are originalists, meaning they believe “the constitutional text ought to be given the original public meaning that it would have had at the time that it became law.” Even Justice Kagan stated during her Supreme Court confirmation that “[w]e are all originalists.” While some would prefer a more outcome-based method, Justice Gorsuch explains that “[o]riginalism is a theory focused on process, not on substance.” And if that process yields a result that one dislikes? In the words of Justice Gorsuch: “So what?” If the evidence shows that nondelegation was indeed the rule at the founding, it follows that at least some members of the Court would seek to apply that restrictive rule to the modern administrative state.

To support their originalist pro-delegation claim, Professors Mortenson and Bagley cite numerous open-ended statutes passed after the ratification of the Constitution, and they discuss hundreds of years of pre-ratification history as well. They also offer other evidence to bolster their contention. Professor Wurman—the author of a book on originalism—counters their approach in part with a methodological critique, illustrating that originalism is not merely an exercise in throwing everything against the wall and hoping something sticks.

Professor Wurman frowns upon Professors Mortenson and Bagley’s “draw[ing of] one clean line between 1539, the British practices of the seventeenth century, the American practices under the states and the confederation government in the third quarter of the eighteenth century, and the constitutional moment of 1787–88.” He also lodges a more substantive set of specific critiques. He addresses all of the positive evidence that Professors Mortenson and Bagley cite, while reframing these examples as reflective of the existence of a bar on delegation at the founding. Professor Wurman not only provides needed context for a number of Professors Mortenson and Bagley’s examples, but also turns the tables on the professors. Professor Wurman makes the point that Delegation at the Founding “discount[s]” both “significant implicit evidence” and “overwhelming affirmative and explicit evidence of a widespread [founding-era] belief in a nondelegation doctrine.” Professor Wurman finds that, in the end, Professors Mortenson and Bagley hang their hats on a “paucity of affirmative and explicit evidence to the contrary.”

What is so remarkable about the Mortenson-Bagley/Wurman debate is the turf on which it is carried out. In both articles, the authors do a fine job of keeping the focus on distilling the original public meaning of nondelegation. Certainly, citizens can disagree about originalism’s results, but as Professor Wurman points out, Professors Mortenson and Bagley’s paper refreshingly “reflects a candid recognition that originalist work is possible.” In other words, the productive and illuminating back-and-forth here is a promising sign of things to come for those who are simply interested in the prospect of finding the correct answer as a matter of originalism when engaging in constitutional interpretation.

Professor Wurman’s work augments the originalist understanding of nondelegation in a significant way. Perhaps the essay’s most useful addition to the nondelegation debate is the more complete portrait it paints of James Madison as a true believer in the doctrine (and as someone whose views on the matter commanded support among his contemporaries). Professor Wurman cites a 1789 amendment that Madison proposed to the Constitution, arguments that Madison made with respect to early statutes (including nondelegation concerns that Madison raised during the Alien and Sedition Acts controversy), and other Madisonian writings and statements. Here, Professor Wurman takes on Professors Mortenson and Bagley directly, disputing their presentation of Madison as someone who argued against delegation mostly for convenience and held a minority view on the principle. To the contrary, he argues, the thread of Madison’s belief in the nondelegation principle runs through the early examples that the two essays discuss.

In a precursor to his essay, Professor Wurman concedes that Professors Mortenson and Bagley’s research may prove “that originalists . . . need to think more about the limitations of their current ‘private conduct’ theory of nondelegation,” which is a belief that all rules impacting private rights are legislative and Congress therefore cannot delegate the power to make any such rules. The correct understanding of the nondelegation doctrine, Professor Wurman posits, could turn out to be Chief Justice Marshall’s theory in the 1825 case of Wayman v. Southard that “there is a category of exclusively legislative power over ‘important subjects,’ but also a nonexclusive [and delegable] power to ‘fill up the details.’” Such a reading of the early evidence may well allow for some delegation, giving “more leeway to delegate on matters of official conduct than private conduct, . . . more leeway to delegate authority over public rights than over private rights, and . . . more leeway to delegate authority over means than over, say, jurisdictional or purpose questions.” Yet, Professor Wurman asserts, Professors Mortenson and Bagley’s statutory examples still do not necessarily disprove the prevailing private conduct theory. To be sure, Professors Mortenson and Bagley also make a meaningful contribution, adding nuance to the nondelegation debate and compiling an impressive set of historical evidence.

It remains to be seen whether and how this debate will influence nondelegation jurisprudence. Professor Wurman notes that in addition to early practice, other “scholarly defenses of nondelegation on originalist grounds have focused on constitutional structure, political theory and the likely understanding of what ‘the legislative power’ was thought to entail, and British constitutional struggles.” Moreover, practical considerations about administrability—even if merely as a background constraint—are sure to figure into judicial application of the nondelegation doctrine to an expansive, technocratic regulatory state that none of the framers would have recognized. At bottom, these essays are new pieces of a larger nondelegation puzzle. It appears that the Supreme Court is still working on putting together the loops and sockets of this consequential jigsaw.

The key line of Justice Gorsuch’s ringing dissent in the recent case of Gundy v. United States cited the words of nondelegation scholar Professor Gary Lawson: “If Congress could pass off its legislative power to the executive branch, the ‘[v]esting [c]lauses, and indeed the entire structure of the Constitution,’ would ‘make no sense.’” Professor Wurman’s thoughtful historical analysis suggests that the framers generally thought so, too. “Whatever readers decide about this conclusion, Professor Wurman’s article—alongside that of Professors Mortenson and Bagley—shows the depths of evidence and argument that are available in answering these and other questions through originalist methods.

Cite as: Eli Nachmany, To Delegate or Not to Delegate: Celebrating a Scholarly Exchange About Originalism and the Nondelegation Doctrine, JOTWELL (October 7, 2020) (reviewing Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. __ (forthcoming 2020), available at SSRN), https://conlaw.jotwell.com/to-delegate-or-not-to-delegate-celebrating-a-scholarly-exchange-about-originalism-and-the-nondelegation-doctrine/.

Zombie Sovereignty: Dead Idea, Eternal Life?

Don Herzog, Sovereignty, RIP (2020).

Don Herzog‘s new book exhorts its readers to face up to tough facts about the doctrine, purpose, and practice of sovereignty—and the irrelevance of that concept to legal argument. For anyone whose calling is to teach and develop the primary constitutional precepts aimed at taming state power—limiting it, dividing it, and making it accountable—Herzog’s book is a hair-raiser of a read, especially in light of the last four years of headlines. It is also a good text for anyone interested in political theory or constitutional doctrine.

In simple terms, sovereignty posits unitary, total command as a requirement to give us order. There must be one unaccountable source of law and of rules. Devised as a means of stopping bloody religious wars in Europe, and perhaps useful today where internal wars rage among sects, the idea has seen its time pass in liberal democracies. Sovereignty as an idea is no longer a means to resolve religious hatred without gore, but a problem of remnants here to make trouble. Unlike Mark Twain’s misreported departure, sovereignty’s death has been grossly underreported. Pronouncements of its obsolescence by the likes of St. George Tucker, Harold Laski, John Dewey, Hannah Arendt, and H.L. A. Hart (Pp. 265-68) have not had the clout to head off furtive moments of reliance on the classic theory. (P. xii.)

Although he wants, as have others done, to pronounce last rites over the idea, Herzog finds that sovereignty has a certain zombie-like persistence. His achievement is to demonstrate its vacuous, even nonsensical nature as an idea while demonstrating its pernicious continuing appeal. In his preface, he shows that any use of the term that omits the dangerous or vacuous parts leaves us with a capacious label that can describe anyone or anything at all. For me, that’s the scary part. The term is useless in argument or analysis, but like the undead, it persists.

Herzog helpfully draws the reader’s attention to the commitments—abstract in theory, terrifying in application—necessary to effectuate the big idea. Sovereignty as an idea with considerable staying power is simple enough, and, in these days of American carnage, it is an idea with a degree of popular appeal. First, sovereignty means we need control, and lots of it. Though who “we” are may not be always clear, Herzog proceeds to lay out the nature of the presumed need that we have. If you want social order, and we know many do, you need “a political actor (whether corporate or individual) whose authority is unlimited, undivided, and unaccountable.”

Expositors of sovereignty in the life of nations have adopted and advanced similar ideas and offered nominees to fill the role. Charles I of England considered the person of the king to be well suited to the job. Parliament differed, and applied new ideas about limits, sharing, and accountability. The English Civil War provided an early draft for Herzog of the discussions that might arise between practitioners of unlimited authority and adherents of something roughly constitutional in conception. Charles lost the debate—and the English Civil War—and died a martyr king. The Restoration (bringing in Charles II and countless paramours) continued the debate. While arguments raged, the importance to sovereignty of a well-provisioned army asserted itself once more.

Among the merits of the book are a nice account, in Herzog’s inimitably striking prose, of Charles’s efforts to effectuate his vision and the sad ending for Charles to the enterprise. One gains an appreciation of the phrase “heads will roll,” coming and going. Herzog treats us to a vivid description of the expressions of sovereignty inflicted by Charles II upon the restoration of the Stuart vision of sovereignty, in preference to the Cromwellian version that found a taste for military rule. Torture seemed well suited to making clear once more the prerogative of the monarchy, along with a son’s thirst for revenge. It also is a good demonstration of raw power.

Therein lies a bit of a puzzle about the book: why worry about the term, if raw power is all one needs? The irrelevance of the concept of sovereignty is made vivid in Herzog’s imaginary summary of the back and forth about ultimate, unlimited power between Charles and his prosecutors in his trial in the Rump Parliament. “A cartoonist could have drawn them sticking out their tongues at one another. ‘We are satisfied with our own Authority,’ said the lord president. ‘You have shown no lawful authority to satisfy any reasonable man,’ shot back the king.” In this example of a school-yard standoff between the King and “the people,” Herzog shows that sovereignty can do no work. He then shows with examples from claims by Presidents to immunity that they don’t quite have it either. Who has the guillotine has power, but is that a debate?

I pause here to note that Herzog spends most of his time in the territory of nation states and international law, what a nation can do to its citizens and claim immunity from restraint or redress, and whom it can torture. One reader, Jack Goldsmith, has argued, in effect, that Herzog does a fine job in that domain of demolishing the idea of sovereignty, but that the demolition seems not entirely needed. The bad things Herzog sees sovereignty as doing are accomplished quite nicely using other legal doctrines and applying the logic of power, which goes where it wishes. Goldsmith doubts that the doctrine does any additional harm, really, in legal cases or in what power does. Goldsmith is all ideas. Herzog likes examples that show us fruitless argument and inevitable power moving under sovereignty’s banner. He also explains that if the banners of sovereign rule, by a king or “the people,” can be finally furled and put away, we have ourselves, told to us in his story of “the efforts of actual people to solve actual problems.”

Where does the residual presence of a dead idea leave us? A couple of places. First, there is the social behavior connected to our continuing instinct to bow to power. President Charles Eliot of Harvard described its command over the human response to position well enough in the nineteenth century, without a needful mention of the idea of command over territory that Herzog describes as an element of the sovereign pretense. On becoming president, Eliot wrote: “Official station is a curious power. There is a lot of human nature in the saying à tout seigneur tout honneur; even when the signeur is a mean or inadequate person, the station is still sacred.”

Second, legal and other arguments are infected by both the idea and the behavior. Herzog gives us examples aplenty. He helps the reader link the debaters’ standoff in the trial of Charles I in seventeenth-century England to the idea that captured the imagination of Southerners claiming their rights as sovereign states and Northerners claiming a larger domain of sovereign right.

Despite all the blood, as Herzog narrates in his wonderfully but grimly memorable way, the affection for sovereignty theory and practice has retained believers. Herzog explains how the belief in the United States persists in the face of contradictory commitments to constitutions such as ours here. Two ancillary commitments in sovereignty theory makes plain its appeal to rulers. They are that, as noticed by president Eliot, “sovereignty is immensely dignified,” and that, as Southern theorists and enough Northerners to make a war maintained, “law is the command of the sovereign.” While the masses crave law and order, any person or entity (monarch, university board of governors, Pope) is apt to be drawn to the gratifications of dignity as immense and to the possession of command made law. (Can anyone say pardon power?)

This thought broadens the appeal of the book from persons whose primary concern is political theory, international law, and constitutional law to common readers. Herzog, with a little help I borrow from Eliot, lays a marker for a broader reflection on the claims to dignity and command. “It’s natural to read the classic theory of sovereignty as applying to monarchs. But I’ll take the theory as leaving open, as Hobbes explicitly does, just who holds sovereignty: the king, king-in-Parliament, or whatever else.” Herzog’s primary big game is government. As noted, “Sovereignty, as I’m treating it, is supposed to be a feature of part or all of the government.” “Whatever else” is the dangerously open term. Without needing the zombie itself as the big idea, the lingering life in these subcomponents may just be as pernicious as Herzog tells us it is.

As We the People have learned lately, the sovereignty feature at the executive level in the United States is enjoying a vogue, at the executive level. The principle of dignity, with immunity playing a supporting role, takes its expression in the expulsion of persons from various spots in government, e.g., the White House grounds (Col. Vindman), the F.B.I. (James Comey), and the embassy in Ukraine (Marie Yovanavitch).

To recognize that presidential immunity in the United States is not that of a sovereign, Herzog provides a guide to various parlor games that insulate the role somewhat, but not enough to make our president a sovereign. Simply explained, the man (yes, so far!) can be removed from office by a process having some connection to consent (albeit not quite the sovereignty of The People—nope, they are not sovereign either). But Herzog shows us some prosecutorial behavior that seems to demonstrate the staying power of sacred respect for the role: Nixon’s final prosecutor, Leon Jaworski, in the end, after Nixon’s resignation, had less fellow feeling for the jury of peers who sought to indict Nixon than he had remnants of deference to the man, however “mean or inadequate.” He vetoed the will of the grand jury, which was to indict Nixon.

So even as Herzog explains that sovereignty is not part of the legal armor of the President, the bit of life in it seems to do more work than constitutional contradictions of sovereignty promise. The book then is a bit of a brain-teaser. Herzog demolishes the concept as an idea and demonstrates how it is stymied in doctrine and in human argumentation, where either power or a less grandiose idea will prevail. The winner is either force or a form of reason that is not a sovereignty claim. Why murder a zombie? I think for Herzog, it is to give us back to ourselves. Forget high flown discourse of “metaphysics or ontology,” (P. xiii), first brought to us by Hobbes and embraced by thinkers who spelled out the need of subjection and, in the bargain, “awe of reverence” for a Royal Sovereign (Pp. 21-23) and come to earth where actual people solve actual problems.

Let Herzog show you why, as he devotes the book to scary stories of the harm sovereignty, dead or alive, has done and could do again. Since brain-teasers are worthwhile, and the book is a great read, providing little primers on history and bloodshed along with plenty of pedagogical oomph, it is a gift to readers. It is just the book for anyone in possession of broad interests or an immersion in nooks in scholarship of one kind or another, a love of learning, and a tolerance for gore.

Cite as: Mae Kuykendall, Zombie Sovereignty: Dead Idea, Eternal Life?, JOTWELL (September 11, 2020) (reviewing Don Herzog, Sovereignty, RIP (2020)), https://conlaw.jotwell.com/zombie-sovereignty-dead-idea-eternal-life/.

Judicial Review and Emergency Powers

Lindsay Wiley and Stephen I. Vladeck, Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending” Judicial Review, 133 Harv. L. Rev. Forum __ (forthcoming, 2020), available at SSRN.

The coronavirus epidemic has raised urgent questions of constitutional rights and judicial review. In response to the pandemic, which has taken over 100,000 lives in the US and many more abroad, governments at all levels have enacted a host of policies that potentially threaten constitutional rights or butt against structural limits on government power. Numerous cases have been filed challenging some of these policies, arguing that they violate the Free Exercise of Religion and Free Speech clauses of First Amendment, the Second Amendment, constitutional protection for abortion rights, the Takings Clause, separation of powers principles, and other provisions of federal and state constitutions.How should we treat these claims? In particular, how should courts treat them?

In light of these questions, it’s hard to imagine a more timely and relevant constitutional law article than Lindsay Wiley and Steve Vladeck’s forthcoming article. In it, Wiley and Vladeck ask whether normal judicial review should be “suspended” during the ongoing pandemic.

In reviewing such challenges, should courts opt for “normal,” relatively non-deferential judicial review? Or should they give the government broad deference, so long as there is a minimally plausible emergency rationale for the challenged policy? Wiley and Vladeck call the latter approach the “suspension model,” and offer three powerful considerations that count against it.

First, they emphasize that the suspension idea implicitly assumes that the crisis will be temporary, with civil liberties and limitations on government power soon to be restored. But in reality, the crisis may go on for a long time, especially if no effective vaccine or treatment is developed for the disease. The seemingly “temporary” suspension could easily become a “new normal.” The authors note that this is a special danger with the coronavirus crisis because it could easily last for a long time, and because restrictions on civil liberties—in the form of mandatory closure and “social distancing” measures—are “central” to the policy response to the crisis.  Mass lockdowns that force millions of people to “shelter in place” and abjure most normal commercial and social interactions go far beyond anything seen in previous public health emergencies. The scale of restrictions on liberty makes it especially important to use judicial review to ensure they go no farther than necessary.

As the coronavirus crisis has developed over time, it has become clear that it might potentially involve multiple cycles of lockdowns and other restrictions on civil liberties. Even if initial emergency measures are loosened or lifted, they can potentially be reinstated later. That makes it all the more important to avoid assuming that the crisis is temporary and will end quickly. At this point, it is difficult or impossible to tell how long it might last.

Second, the suspension model is based on what they call “the oft-unsubstantiated assertion that ‘ordinary’ judicial review will be too harsh on government actions in a crisis—and could therefore undermine the efficacy of the government’s response.” Wiley and Vladeck contend that this assertion is unwarranted, and that most legitimate emergency measures can and do survive “ordinary” judicial scrutiny. The first wave of judicial decisions in the coronavirus cases suggests that Wiley and Vladeck are right. Courts that have applied “normal” judicial review have either upheld the challenged measures, struck down only limited aspects of them (as with decisions protecting gun rights or requiring the government to permit “drive-in” church services if they permit similar secular services), or invalidated the measures on separation-of-powers grounds that allow the state to reenact them if the legislature chooses to do so. Maintaining normal judicial review reduces the risk of pretextual policies and helps ensure that even well-intentioned ones do not overreach.

Finally—and in the authors’ view most importantly—the suspension model entirely fails to account for the importance of an independent judiciary in a crisis. The judiciary, they write, is “perhaps the only institution that is in any structural position to push back against potential overreaching by the local, state, or federal political branches.” Emergency situations are precisely when government power is often most likely to be abused. Rigorous judicial review can help prevent constitutional rights against assertions of emergency powers whose necessity is dubious, and whose claimed rationales often pretextual.

As Wiley and Vladeck emphasize, there is a long history of abuses of emergency powers, often legitimized by an over-deferential judiciary. The 1944 Korematsu case, in which the Supreme Court upheld the internment of Japanese-Americans during World War II is a particularly notorious example, long seen as “overruled in the court of history,” that the Supreme Court finally repudiated in 2018 as “gravely wrong the day it was decided.”

In many countries around the world, authoritarian leaders are using the pandemic as an excuse to expand their power and crush dissent. Liberal democracy is more firmly entrenched in the US than in countries like Hungary, where Prime Minister Viktor Orban has exploited the crisis to consolidate authoritarian rule. But it would be naive to imagine we are immune from the tendency of governments to exploit crises for their benefit. To the contrary, we too have a long history of crises being used to undermine constitutional rights, subvert limits on government power, and target unpopular minorities. Those who fear (often with good reason) that Donald Trump and the GOP have significant authoritarian tendencies should be especially wary of assuming that coronavirus emergency measures should be exempt from normal judicial scrutiny.

But such concerns cut across party lines.  Recent events have raised serious concerns about the extent to which some public officials—including liberal Democrats—will go easy on enforcing rules against mass gatherings or protests when they agree with the cause they espouse, while condemning others. In some areas, officials who were quick to enforce restrictions against anti-lockdown protestors and religious gatherings have been unwilling to do so when it comes to recent protests against police brutality and racism – sometimes even openly supporting the latter. While the latter protests address a worthy cause, it is dangerous for the government’s reactions to mass gatherings to be dictated by the viewpoints those gatherings support.

Indeed, the genuinely severe nature of the current health crisis may actually make the threat of exploitation even greater, as the severity of the danger makes Americans more willing to sacrifice constitutional rights to address it, and less likely to closely scrutinize government actions enacted in response.

One standard critique of non-deferential judicial review in such situations is that judges may lack the specialized expertise needed to assess emergency policy. Few if any judges have expertise in epidemiology or public health. But anti-coronavirus policies are, in most cases, enacted by politicians who themselves are not experts. They can, of course, rely on advice provided by such experts. But the same is true of judges exercising the power of judicial review, who routinely consider testimony and other evidence submitted by scientists and other experts of various kinds.

If the government’s policies really are based on strong scientific evidence, then they should be able to prove that in court, without any special judicial deference. Wiley and Vladeck rightly point out that robust judicial review can actually incentivize the government to improve the quality of the evidence it relies on, to provide greater specificity in its explanations of the purposes restrictions on civil liberties are intended to achieve, and to take greater care to ensure that those restrictions do not go too far.

If lack of technical expertise were a justification for suspending normal judicial review, it would apply to a vast range of cases, not just challenges to public health policies. The same rationale can be (and often is) used to justify broad deference in the fields of immigration, national security policy, and almost any other government action that addresses a complex issue. In many of these fields too, the government can and does claim that its constitutionally questionable policies are necessary to save lives, and that those policies are based on specialized expertise that courts are not qualified to assess. (I explain in greater detail why such arguments for special deference should be rejected here.)

The emergency argument for judicial deference should be distinguished from claims that some constitutional rights claims are just generally wrong, or that the right in question generally deserves little judicial protection. Many conservatives, for example, take that view of abortion rights, and many on the left have a similar view when it comes to gun rights. If you believe that gun rights claims or abortion rights claims are wrong irrespective of whether there is a public health emergency going on, then by all means make that argument. But we should resist the temptation to argue that rights claims we dislike should be excluded from normal judicial review because of the need to defer to the government’s judgment in emergency situations. The same rationale can easily be used to gut judicial protection for rights you do care about, especially in a society where judges and government officials have diverse views. Those who live by the sword of special deference in emergency situations can all too easily die by it.

One notable issue that Wiley and Vladeck do not consider is the changing ideological valence of arguments for the “suspension” model they criticize. During the Cold War and the War on Terror, it was primarily conservatives who argued for special deference based on the existence of an emergency situation and the government’s supposed possession of specialized expertise. Liberals viewed such claims with great skepticism. With a few exceptions (such as challenges to restrictions on abortion), left and right have almost completely changed places when it comes to legal challenges to coronavirus emergency measures. In this context, much of the left accepts arguments for judicial deference that they vehemently rejected when it comes to national security threats; the right has gone in the opposite direction. Wiley and Vladeck are unusual in maintaining a consistent stance on judicial review during both sets of emergencies. Future research should consider why such consistency is rare.

Wiley and Vladeck’s analysis does not by itself tell us how any particular legal challenge to coronavirus emergency measures should be resolved. But they do explain why courts should not abjure normal judicial review in favor of the suspension model. That insight is essential for as long as this crisis lasts—and will be valuable for future emergencies, as well. Sadly, this one is unlikely to be the last.

Parts of this piece are adapted from a post at the Volokh Conspiracy law and politics blog, affiliated with Reason.

Cite as: Ilya Somin, Judicial Review and Emergency Powers, JOTWELL (June 29, 2020) (reviewing Lindsay Wiley and Stephen I. Vladeck, Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending” Judicial Review, 133 Harv. L. Rev. Forum __ (forthcoming, 2020), available at SSRN), https://conlaw.jotwell.com/judicial-review-and-emergency-powers/.

Functional Parents, Functional Constitutional Law

Douglas NeJaime, The Constitution of Parenthood, 72 Stan. L. Rev. 261 (2020).

For most of us who are parents, being permanently excluded from our children’s lives would be an unimaginable tragedy. Yet for non-biological parents—including many gay and lesbian parents—this outcome has long been a possibility.  Because at least one member of a same-sex couple typically lacks a biological relationship to their children, the legal status of such functional, but non-biological, parents has historically often been uncertain. Even today, in some states, such parents can be deemed “legal strangers” to their children—no matter how long the parental relationship, or how much the parent and child desire to preserve it. In these circumstances, a finding of lack of parental status is the equivalent of a termination of parental rights—but without any required showing of parental deficiency, and indeed even in the face of substantial likely harm to the child.

While the stakes of such parentage rights cases are high—adjudicating rights “far more precious than any property right”—they have, unlike LGBT marriage rights, primarily been addressed outside of the constitutional domain.  Even as LGBT advocates and scholars have quietly succeeded in transforming the family law landscape in many states with respect to non-biological parents, questions regarding the constitutional rights of such parents have remained mostly absent from constitutional debates about LGBT rights. Indeed, constitutional arguments have most often been raised in litigation by biological parents seeking to oppose the recognition of non-biological parents’ rights. As such, despite the outpouring of constitutional scholarship on issues of marriage equality, constitutional law as a discipline has had relatively little to say on the issue of non-biological parents’ rights.

In The Constitution of Parenthood, Douglas NeJaime takes up the work of making the case that the relationship of non-biological parents to their children ought to be afforded constitutional protection. As NeJaime notes, these constitutional arguments will not matter for all non-biological parents, some of whom already possess parental status under state family law.  Thus, some non-biological parents will find relief in state family law doctrines such as equitable parenthood or, in the wake of marriage equality, the marital presumption. Others may be able to obtain a step- or second-parent adoption, affording full secure parental rights.  But for those that fall outside of these family law protections—either because their state lacks them or because practical or financial considerations make them inaccessible—a backstop of constitutional protections remains vitally important.

As NeJaime observes, the idea of protecting parental bonds via substantive due process is hardly novel.  Parental rights are among the oldest and most consistently affirmed substantive due process rights recognized by the Supreme Court, forming the foundation for modern substantive due process doctrine. Thus, the key question for non-biological parents is what defines the constitutional boundaries of who will be deemed a parent entitled to such protections.  Is biology (or adoption) a necessary prerequisite to constitutional recognition as a parent, or is it functional parenthood that matters?

Through a careful and detailed analysis of varied threads of constitutional law doctrine, NeJaime makes the case that functional parenthood should indeed matter, and that biology or adoption is not the sine qua non of constitutionally protected parental relationships. As NeJaime points out, some of the earliest due process cases adjudicating parental rights in fact dealt with functional parents, such as extended relatives raising children. While the case law concerning the rights of biological fathers has been muddled and arguably inconsistent, it too has included an important functional component, requiring a level of functional parenting for protections to attach. Obergefell v. Hodges and Pavan v. Smith have directly recognized the rights of LGBT parents (albeit through the lens of marriage), despite recognition that such parents may lack biological relationships to their children. Even cases that are often cited against functional parents’ constitutional rights, such as the foster care case of Smith v. OFFER, are far more equivocal than they are remembered today, offering considerable support for the idea that functional characteristics matter in defining family.

NeJaime’s analysis of the relevant considerations is comprehensive, and too detailed to fully encapsulate in a short review.  But one important aspect of that analysis bears emphasis, as it arises not from existing constitutional law doctrine, but rather from the longstanding family law strategies that have already succeeded in shifting understandings of parentage toward functional criteria. As NeJaime observes, while such legislative and common law reforms have typically not rested explicitly on constitutional law (though they have sometimes been constitutionally inflected), they have shifted background understandings in ways that are important to the constitutional analysis.  In short, widespread shifts in understandings of what a parent is—away from biology alone, and towards functional criteria—ought to inform our understandings of what parents qualify for constitutional protections, and the centrality (or lack thereof) of biology to that determination.

NeJaime also makes clear that he does not view the constitutional argument that he develops in The Constitution of Parenthood as superseding family law approaches to protecting functional non-biological parents’ rights, but rather as complementing and integrating with them. As NeJaime observes, it is unrealistic to think that the Supreme Court will imminently take up the issue of non-biological parents’ rights and issue a sweeping holding affording such parents protections.  But the Supreme Court is hardly the only constitutional adjudicator that matters, and constitutional arguments can shape the terms of the debate, even outside of the courts themselves. Thus, NeJaime envisions such arguments playing out across a host of different contexts, including state and lower federal courts, state legislatures, and law reform organizations.

In a discipline with an often almost obsessive focus on the Supreme Court, we ought to take heed of the messier, more complicated model that NeJaime puts forward for constitutional transformation.  The reality is that constitutional change often happens in precisely the way that NeJaime suggests: through incremental state and lower federal court decisions, constitutionally inflected legislative change, and gradual concomitant shifts in public perceptions of the content of equality and rights.  This process is often iterative, self-referential, and non-linear, and yet may lead to profound shifts in on-the-ground constitutional meaning.   As scholars (including NeJaime himself, as well as other scholars, like Reva Siegel, Robert Post, and Lani Guinier) have observed, this is a much more realistic model of how effective constitutional change happens than the Supreme Court-centric model that typically takes center stage. We miss much of what is important, both as scholars and as advocates, if our focus is only on the narrow slice of constitutional lawmaking that takes place at the United States Supreme Court.

Such a multi-faceted and multi-sited account of constitutional change is not only more realistic, it is also arguably in this case more just. Parental rights are critically important, but often implicate the rights of others in ways that do not lend themselves to the “all or nothing” approach to rights that too often pervades disputes over constitutional rights. As NeJaime observes, children may have important interests that come into play in disputes involving functional parents (both for and against functional parent recognition), and there may be countervailing group-based equality concerns (such as, for example, race or class concerns in the context of foster care parents whose claims might adversely implicate the rights of minority and poor parents). Thus, NeJaime expressly contemplates that case by case adjudication, and constitutionally inflected legislative reform, may have a major role to play in protecting functional parents’ rights, permitting the type of weighing or balancing of individual circumstances that rarely is the province of United States Supreme Court decision-making.

In short, NeJaime offers a compelling case for the constitutional rights of non-biological functional parents.  But both the genesis and the effectuation of this right that he envisions is far from a top-down, all or nothing constitutional rights affair.  Rather, NeJaime takes seriously the insights of democratic constitutionalism (and its close cousins demosprudence and descriptive popular constitutionalism) to offer a much richer, messier account of why and how substantive due process ought to protect non-biological functional parents. His account is worth reading, both for its careful exposition of why we ought to constitutionally protect functional parents and for the roadmap it provides for thinking about functional constitutional change.

Cite as: Katie Eyer, Functional Parents, Functional Constitutional Law, JOTWELL (June 5, 2020) (reviewing Douglas NeJaime, The Constitution of Parenthood, 72 Stan. L. Rev. 261 (2020)), https://conlaw.jotwell.com/functional-parents-functional-constitutional-law/.

Within the Labyrinth of the Law

Robert C. Post and Jennifer E. Rothman, The First Amendment and the Right(s) of Publicity, 130 Yale L. J. __ (forthcoming, 2020), available at SSRN.

It only takes two facing mirrors to build a labyrinth.”J.L.Borges

A labyrinth has no easily discernible path. It leads to frustration and wasted time on the part of the uninitiated, who find themselves foiled by twists, turns, and blocked escapes. We easily imagine the bellowing roars of frustration of the mythological beast, the Minotaur, trapped in his unlighted labyrinth on the Isle of Crete. When we encounter a labyrinth, what we need is a guide to lead us from frustration with the task to a possible solution. An image comes to mind of Ariadne, daughter of the King of Minos, who provided the knowledge and the tools to allow the (admittedly ungrateful) Theseus to escape the maze.

Professors Robert C. Post and Jennifer E. Rothman provide both guidance and solution to a labyrinthine problem in their forthcoming article, The First Amendment and the Right(s) of Publicity. That problem, as suggested by the article’s title, is accommodating the interests protected by the right of publicity with those protected by the First Amendment. Post and Rothman traverse the labyrinth created by existing doctrine from two directions. First, they clarify the varied and distinct interests that the right of publicity protects, or ideally should protect. If this were the article’s only contribution, it would be a tremendously valuable one, and judges and lawyers willing to accept their guidance could begin to construct coherent doctrine. But their second contribution is to point away from the “sea of inconsistent, vague, and unhelpful First Amendment tests” cluttering current doctrine toward more stable yet nuanced analysis. (P. 29.) Along the way, they even propose four new torts, and what’s not to love about new torts?

As Post and Rothman persuasively demonstrate, much of the problem with the right of publicity is that the doctrine has focused on defendants’ conduct (namely, the appropriation or use of a name or likeness) rather than the harm or harms the tort is meant to remedy. (P. 2.) They seek to solve this problem by teasing from the caselaw the numerous distinct interests the right is designed to protect.

Post and Rothman show that that there is not one right of publicity but four. (P. 5.) The first right the tort attempts to vindicate is the right of performance. The right of performance is violated “when a defendant uses the performance of another without consent.” (P. 8.) This right was at issue in the Supreme Court’s only right of publicity decision, Zacchini v. Scripps-Howard Broadcasting, which involved the broadcast of the entire act of a human cannonball. What the Court’s decision in Zacchini protected, at least according to Post and Rothman, was not Mr. Zacchini’s identity but his performance—“a discrete set of acts in space and time.” (P. 12.) Protecting performances protects an interest akin to copyright and “encourage[s] the creation of unfixed performances that may not be copyrightable.” (P. 12.)

The second interest the right of publicity vindicates is the right of commercial value. This right allows individuals to reap commercial or market value from their identity. (P. 17.) In describing this right, Post and Rothman are careful to disclaim the proposition that the interest protected is “a generalized property right in the commercial value of one’s identity.” (P. 18.) Instead, they identify three concerns underpinning cases involving rights of commercial value. One concern, which they denominate “confusion,” arises when the use of a plaintiff’s name or likeness creates confusion about his participation with or sponsorship of the defendant or the defendant’s products or services. (P. 19.) A second concern is diminishment, namely that the defendant’s use of plaintiff’s likeness or identity in a commercial context will lessen its market value. (P. 20.) The final concern is unjust enrichment, which occurs when a defendant uses the plaintiff’s identity for advertising or marketing goods and services without compensation or consent.

The third interest the right of publicity tort advances is the right of control, which gives people “a general right to control how others use their identity.” (P. 22.) This right is “oriented toward the protection of personality rather than market damages.” (P. 22.) It encompasses a “right of informational self-determination,” a right especially likely to conflict with First Amendment interests in the free flow of information. (Pp. 21-22.)

The fourth interest implicated by the right of publicity is the right of dignity. (P. 22.) Portrayal of individuals in ways that cause them shame and humiliation threatens the integrity of their identities as persons worthy of respect within their communities, at least when these portrayals are highly offensive to reasonable people. A musician who has a song used for a political campaign without consent may experience this as a dignitary harm, as may the people whose arrest photos are posted on mugshots.com. Again, this dignitary interest is especially likely to collide with First Amendment interests, which is why Post and Rothman insist that the specification of interests involved in a particular tort action must come before decisionmakers begin the process of weighing that interest against any asserted First Amendment interest.

In fact, in a bold nod to legendary legal scholar William Prosser’s four-fold division of the right to privacy into distinct torts, they convincingly argue that the right of publicity—one of Prosser’s original four—should itself be divided into four distinct torts. (P. 4.) Recognition of these four torts would help diminish doctrinal inconsistencies and add precision to First Amendment analysis, thereby reducing the chill that current doctrine imposes on free expression.

Even so, this step is insufficient, standing alone, to properly resolve conflicts between the rights of publicity they propose and the First Amendment, because it ignores the First Amendment side of the balance. On that side, Post and Rothman contend that proper analysis requires consideration of the contexts in which appropriations of identity occur. First Amendment interests are at their zenith when appropriation occurs in public discourse, at their midpoint when they occur in commercial speech, and at their nadir when a plaintiff’s name or likeness is used in or on commodities. (P. 32.) Although the determination of the context in which a defendant is using a plaintiff’s name  or likeness is sometimes difficult, this determination must be the starting point of accurate First Amendment analysis.

Although these categories of contexts seem to suggest an ad-hoc balancing of tort and First Amendment interests, Post and Rothman map the broad outlines of what the balance would look like with regard to each of the four torts they propose, leaving the details to future scholarship. For example, Post and Rothman contend that the similarity of the right of performance to copyright suggests the proper shape of its constitutional analysis and that copyright’s protections for free expression, such as the doctrine of fair use, should be imported into the right of performance.

The balance tilts quite differently in the case of the publicity rights more oriented toward redressing emotional harms—namely, the rights of control and dignity. For these torts, pinpointing the context of the appropriation is especially crucial. If the appropriation occurs within the sphere of public discourse, the scope of the rights of control and dignity is narrow because the First Amendment demands that the public remain free “to form its own judgments based on publicly available information.” (P. 63.) In addition, the First Amendment typically does not allow plaintiffs to recover for dignitary harms based on the publication of truthful information in public discourse unless they can prove fault of the defendant. Analogizing to existing First Amendment precedents, Post and Rothman suggest that the First Amendment should permit redress of harms flowing from use of one’s name or likeness in public discourse only when the defendant knowingly or recklessly disregarded that such use would mislead the public about the plaintiff’s participation in or endorsement of the use. Presumably, the authors would apply this standard regardless of the plaintiff’s status as a public or private figure, because to do otherwise would import into this troubled tort all the complications of another troubled tort, namely, defamation law.

A brief review, such as this one, can only hint at the many fruitful journeys scholars can take along the path marked by Post and Rothman. I look forward to the flowering of the new torts they have outlined, complete with elements fleshed out to protect the interests they have identified without compromising free expression.

Cite as: Lyrissa B. Lidsky, Within the Labyrinth of the Law, JOTWELL (May 1, 2020) (reviewing Robert C. Post and Jennifer E. Rothman, The First Amendment and the Right(s) of Publicity, 130 Yale L. J. __ (forthcoming, 2020), available at SSRN), https://conlaw.jotwell.com/within-the-labyrinth-of-the-law/.

Grounded Free Speech

Joseph Blocher, Free Speech and Justified True Belief, 133 Harv. L. Rev. 439 (2019).

If protection of freedom of speech has something to do with truth-seeking, we ought to acknowledge that “the goal of free speech is not the maximization of truths in the abstract, but rather the development of knowledge.” Supposing this to be so, Joseph Blocher suggests that “First Amendment theory and doctrine” should find its organizing pulse in the idea of grounding: in investigations of what counts as “justified true belief,” not simply “truth alone.” (P. 459.) Epistemology matters.

“Justified true beliefs” emerge within an individual’s own mind, Professor Blocher thinks, in view of particular “interior” dispositions or distinctive “exterior” states of affairs. Interior and exterior elements are sometimes concurrent, sometime interacting, sometimes decisive alone. This account of “true” beliefs does not claim to be philosophically right without doubt. Blocher believes it works well enough, however. Elaboration often shows well-ordered groups of settings, objectives, investigations, and conclusions. Conjunctions—infrastructure, institutions, and the like—come into view, prompting or otherwise disciplining particular forms of speech within which we frame our assertions of justified true belief, and thus also our claims to constitutionally defensible free speech.

Blocher readily acknowledges his debt to important work by Fred Schauer, Paul Horwitz, Robert Post, and others. Blocher’s contribution introduces a distinctive and important structural dynamism. He carefully places his own “grounding” preoccupations adjacent to familiar free speech notions in order to assess what this juxtaposition reveals. Initially, thus, he takes up the much-celebrated image of the “free marketplace of ideas.” It is very easy to associate this notion with a concern for truth, as Justice Holmes himself made clear. Blocher stresses this conjunction, but he nonetheless does not suggest that the “free marketplace” and “justified true belief” are equivalents. Holmes’s writings, we know, frequently endorsed an inarticulate “invisible hand”-like “common sense,” and often expressed an overarching skepticism. Similarly, Blocher maneuvers “justified true belief” near to other often-invoked free speech motivating premises—notions of democracy and autonomy. He perceives more distance, a degree of independence therefore, but he is also able to identify partial congruences at least, signs of some measure of reinforcement.

* * * * *

Professor Blocher does not court controversy. For the most part, he stresses instances in which justifications of free speech and accounts of institutional infrastructures seem to proceed in defensible parallel. The tolerance that Justice Brennan famously shows for false statements (absent actual malice) in New York Times v. Sullivan, for example, may not serve truth immediately, but it also recognizes that the reliability in general of grounds for statements is often what really matters, not the results in every particular case. Constitutionally protecting journalists or other communicators implicates and encourages (perhaps extends) professional norms, and thus ultimately encourages its own form of discipline. This institutional reading of Sullivan is a familiar one, of course. But there are other dimensions to the case. His general approach, extended a bit, catches them well also.

We might remember that New York Times columnist and First Amendment writer Anthony Lewis walked away from Brennan’s Sullivan opinion. The actual malice test, Lewis thought, opened up too many chances for intensive discovery and other procedural machinations, increasing litigation costs and inducing real self-censorship. We may also recall that Harry Kalven initially declared Brennan’s text to be incomprehensible, moving without explanation from free speech verities to the mandatory replacement of one usual state common law defamation regime with another.

As well, however: Justice Brennan identified the advertisement at issue in Sullivan as one exchange in a “robust, wide-open, and uninhibited” contestation (implicitly, the defamation suit too—he’d written NAACP v. Button the year before). Justice Black, concurring, worriedly described how the Alabama procedure might enable white supremacists, taking advantage of notably open-textured trial processes, to overwhelm careful legal inquiry as such, putting defendants at risk of financial ruin with only a semblance of an actual trial. Brennan returned to “actual malice” a few months later in Garrison v. Louisiana, delicately adverting to happenings in Germany in the period in which the Nazis seized power. Against this backdrop, we realize, Sullivan brings to bear freedom of speech and due process of law and equal protection of law; it brings together both First Amendment and Fourteenth Amendment fundamentals. Brennan’s main moves (the object of Kalven’s concern)—“actual malice,” turning defamation law into a sort of federal common law, the specification of de novo appellate review, and the rest—look to be efforts to buttress Fourteenth Amendment legality, the primordial project of Reconstruction. In Sullivan, judicial recasting of common law builds up journalistic disciplines along the way, reinforcing professional norms working to protect free speech too.

* * * * *

Tone, feeling, resonance, and the like are sometimes significant elements in free speech, whether independently or alongside claims of truth, assertions of autonomy, or commitments to democracy. Emotional palettes figure as close at hand in many communicative efforts. Professor Blocher does not explore these matters here (he comes closer elsewhere). But it’s easy to see that they fit readily within the workings he deploys. Extremes of feeling may propel ideas or images or other forms of expression into or out of prominence, at greater or lesser velocities. This is one way, at least, that we experience politics or other important aspects of social or cultural environments.

In Hustler Magazine v. Falwell, William Rehnquist seized upon Larry Flynt’s erotic cartoon mockery of minister Jerry Falwell (and his mother!), declaring it to be exemplary effrontery, thorough-going irreverence constitutionally characteristic of free speech protected against civil suit absent false statements of fact.

Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude….But in the world of debate about public affairs, many things are done with motives that are less than admirable are protected by the First Amendment. [53]…The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events—an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided. [54]…[G]raphic depictions and satirical cartoons have played a prominent role in political debate. [54]…Respondent contends, however, that the caricature in question here was so “outrageous” as to distinguish it from more traditional political cartoons.…“Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression. [55]

Hustler depicts emotion as form-generating—as pushing towards simplifications or exaggerations or other intensifications. These devices overwhelm images of nuance or complexity or moderation. Facts—their characteristic modes of representation—push oppositely, accentuate complexity, in this way assert their own plausibility.

Emotion of itself tends to reposition society, politics, or culture—within communicative environments in which strong stylizations and reiterations “rifle,” spinning formulations to maximum force. Such settings may shape propagations of “fundamentals” or other cult-like formulations (we might conclude, following Mary Anne Franks). Ideas acquire pointed directness, maybe especially so outside courts and legal formulations as such, seeming to adherents to license absolutism, harshness near-kin to violence, cousins to the grotesqueries privileged by the Court in Hustler. Much we glimpse now looks to be of a piece. Disciplinary institutions often perceive themselves as precarious, cowed by self-promoting affinity groups pressing members to extremes. Affinity groups sometimes perceive social media platforms as affording huddling shelters or other bolsterings. Platforms at times perceive feelings of affinity groups as not only unified within the given group, but also as fiercely set against other views and groups. These oppositions look like “facts,” useful cues to entrenched popular fissures. Groupings become commodities: market segments, easily spotted, categorized, entrepreneurially valuable.

How do we address circumstances in which enthusiasms look to have occupied the field—whether positive or negative, affinity-driven or institutionally-narcissistic? Our awareness of American law as itself irreducibly layered, if at times disruptively so, is also occasionally rescuing. The interplay of free speech as contest, on the one hand, with concern for  equal protection of the laws on the other, grounded the regime of filters New York Times v. Sullivan engineered to impede the exploitation of trial process by demagogues.

Consciousness of what we don’t know sometimes also engages constitutional thinking. Consider this too-quick sketch: The Fourteenth Amendment premise of equal citizenship governs dealings of citizens with each other. “We the people,” equally sovereigns, equally owe each other duties of allegiance and protection, duties of care. Division at the extreme—“all against all,” stasis—thus acquires constitutional marking, cannot notbe a background matter of legal concern and adjudicative attention. Social media platforms make sorting along political or cultural lines easy. The way they structure their own workings accentuates affinity group extremism. What if these divisions—their clarity, anyway—are in part artifacts, products of the formally encoded devices and algorithms of the platforms themselves, cartoons in effect rather than accurate representations of social and political reality? Platforms might appear to refuse to take seriously as fact statistical capacities to describe overlaps and unsettlings, the simultaneous pertinence of alternate modes of representation. Liability—potentially? Uncertain grounds! Joseph Blocher’s premise presses.

Cite as: Pat Gudridge, Grounded Free Speech, JOTWELL (April 3, 2020) (reviewing Joseph Blocher, Free Speech and Justified True Belief, 133 Harv. L. Rev. 439 (2019)), https://conlaw.jotwell.com/grounded-free-speech/.

Congressional Power to Guarantee State Democracy

Carolyn Shapiro, Democracy, Federalism, and the Guarantee Clause, 62 Ariz. L. Rev. (forthcoming, 2020), available at SSRN.

How much power does Congress have to regulate state democracy? More than it may realize, suggests Professor Carolyn Shapiro, in her article, Democracy, Federalism, and the Guarantee Clause. Shapiro locates this untapped power in the Guarantee Clause, which provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” A significant body of scholarship has considered whether this clause empowers the federal judiciary to review undemocratic state practices (P. 2), a question the Supreme Court has repeatedly answered in the negative. But Shapiro flips the inquiry, focusing not on what the courts cannot do, but on what Congress can do. She concludes that Congress can do a great deal, arguing that the Guarantee Clause gives Congress the authority—and the duty—to intervene when necessary to ensure the democratic integrity of states.

Deploying a series of textual, functional, and historical arguments, Shapiro reframes the Guarantee Clause as a structural principle with dynamic substantive content. Modern democracy scholars might put it this way: antidemocratic practices in one state may produce negative “spillover” effects in another, causing an “antidemocratic spiral [that] is contagious.” (P. 5.) The Framers did not think in these precise terms, but they recognized the need to protect every state by ensuring that each state had a similar form of republican government. Thus, Article IV Section 4 protects “each” state from “Invasion” and “domestic violence,” but guarantees to “every” state a “Republican Form of Government.” (Pp. 11-12.)

In the antebellum period, the federal government resisted calls to intervene in state affairs by enforcing the guarantee, but after the Civil War the Radical Republicans claimed the Guarantee Clause empowered Congress to enforce new democratic norms through Reconstruction. (P. 20.) Charles Sumner described the Guarantee Clause as a “sleeping giant” awakened by the Civil War that gave Congress, more than any other clause, “supreme power over the states.” (P. 19.) From Reconstruction to modern times, the operational meaning of the guarantee has continued to evolve along with American democracy itself. The nationalization of American politics has rendered each state more vulnerable to antidemocratic spillovers from her neighbors. And the American polity has developed a more robust, universal, and egalitarian conception of the structural elements essential to ensure popular sovereignty and representative government, as evidenced by landmark legislation like the Voting Rights Act and constitutional amendments guaranteeing political participation rights, such as the Fourteenth Amendment, the Fifteenth Amendment, the Seventeenth Amendment, the Nineteenth Amendment, the Twenty-Third Amendment, the Twenty-Fourth Amendment, and the Twenty-Fifth Amendment.

Shapiro’s “guaranteeing power” (my term, not hers) would enable Congress to address something beyond the reach of its other powers: structural problems with state democracy. The Elections Clause empowers Congress to regulate the “Time, Place, and Manner” of congressional elections, and the Fourteenth Amendment empowers Congress to “enforce” its provisions “by appropriate legislation.” The former clause permits comprehensive regulation, but only for congressional elections. The latter permits regulation of state and local elections, but only to enforce individual rights in a way the Court deems “congruent and proportional” and consistent with “equal state sovereignty.” Neither permits regulation of state institutions to vindicate structural principles.

These constraints on congressional authority limit the national policy debate. Take HR1, the omnibus electoral reform bill the Democrats introduced after retaking the House of Representatives in the 2018 midterms. A key component of the bill requires every state to establish an independent redistricting commission (IRC). Another prohibits “double running”—an individual shall not run the very election in which she runs as a candidate. But both the mandate and the prohibition are limited to national elections. So Idaho must use an IRC to draw the single line that demarcates its two congressional districts, but not to draw the electoral maps for its state legislature. And the Secretary of State cannot administer the election if she is a candidate for Congress, but she can if she is a candidate for Governor.

Why limit these provisions to national elections? It’s not because the democratic threats of gerrymandering and double running are limited to national elections. It’s because Congress only has clear authority to address these threats in that context. But if Shapiro is correct about the scope and purpose of the Guarantee Clause, Congress may have the authority to mandate commissions for state legislative maps and to prohibit double running in state elections, not to enforce individual rights, but to guarantee a republican form of government.

Shapiro envisions a robust “guaranteeing power” that would recalibrate electoral federalism, enabling Congress to regulate the states more aggressively than it presently does and otherwise could. She suggests this power should be subject only to a “highly deferential” form of judicial review, one more deferential than what the Court applies to exercises of congressional enforcement power. (P. 49.) Shapiro contends that current practices—like gerrymandering, voter suppression, lame duck power grabs, and electoral maladministration—present the sort of democratic threats that warrant such unprecedented congressional action. And she suggests that Congress can and should adopt a broad array of preventive and remedial measures, such as national voter identification cards and national criteria for polling places and voting machines. (Pp. 47-48.)

Shapiro’s proposal invites future scholarly attention to the scope of the guaranteeing power and the role of the Court in determining and policing its limits. On the one hand, the Court might struggle to satisfactorily explain why it cannot enforce the guarantee itself while it can determine the scope of congressional power to enforce the guarantee. On the other hand, as Shapiro herself recognizes, if the scope of the guaranteeing power presented a non-justiciable political question, Congress would suddenly enjoy “unlimited power to impose on the states whatever government it deemed republican.” (P. 49.)

How could the Court constrain this power in a principled and determinate way, when the substantive content of the guarantee is dynamic? I suggest it may be instructive to consider the Court’s Eighth Amendment jurisprudence. Despite strident opposition from Justices Scalia and Thomas, the Court has consistently held that the meaning of “cruel and unusual punishment” changes over time with society’s “evolving standards of decency,” so a punishment accepted at the Founding, like the death penalty for child rape, may become impermissible when eschewed by a sufficient number of states. Could an electoral practice, permitted at the Founding but now rejected by most states, such as lifetime felon disenfranchisement, offend society’s evolving standards of democracy?

Note that the dynamism of the Eighth Amendment generally operates in one direction—practices once permitted may now be proscribed. But dynamism under the Guarantee Clause may operate in both directions—practices once permitted may now be proscribed, while practices once proscribed may now be permitted. For example, Shapiro suggests that Congress cannot prohibit Nebraska’s use of a unicameral legislature or California’s “ballot box budgeting,” even though the Founders may have considered unicameralism or direct democracy fundamentally incompatible with a republican form of government, because even if such practices produce “significant state-level dysfunction,” they do not produce “antidemocratic spillovers.” (P. 44.) Does the Court have the institutional competence, and the requisite methodological tools, to make such determinations? And, more generally, to distinguish permissible from impermissible exercises of the guaranteeing power?

In this article, Shapiro’s focus is appropriately limited: her intent “is not to set forth a fully developed legal doctrine but rather to lay out its conceptual framework.” (P. 40.) Shapiro successfully makes a strong case that Congress can regulate state democracy under the Guarantee Clause. I hope that future work, by Shapiro and others, will flesh out these doctrinal details and further develop the case for a robust guaranteeing power.

Cite as: Benjamin Plener Cover, Congressional Power to Guarantee State Democracy, JOTWELL (March 3, 2020) (reviewing Carolyn Shapiro, Democracy, Federalism, and the Guarantee Clause, 62 Ariz. L. Rev. (forthcoming, 2020), available at SSRN), https://conlaw.jotwell.com/congressional-power-to-guarantee-state-democracy/.