The rise of instant, personalized access has its costs and benefits. Things like time-shifting, the ability to download songs rather than whole albums, and even SSRN make each person his or her own curator. But we lose the value of communal experience: the experience of encountering an interesting document or idea together and simultaneously.
In American legal academic culture, one such event was, or is, the publication of the Foreword to the Harvard Law Review’s annual Supreme Court Issue. Mark Tushnet and Timothy Lynch’s classic study, “The Project of the Harvard Forewords,” provides one of the best (and only) accounts of both the Foreword’s importance and its “structural constraints.” The article notes the frequency with which the Foreword article, which purports to be both a definitive statement about the most recent Term of the Supreme Court and a definitive statement for each Foreword’s author, disappoints. Indeed, attempting to serve both functions may contribute to that disappointment. The time constraints involved in writing the Foreword, the expectations it carries, and the fact that its authors are often selected because they have already often written their most important work means that most Forewords read like a “set piece,” a “replay” of the author’s greatest hits “in the context of the Supreme Court’s most recent cases.” Sometimes a Foreword fulfills neither function well. Aharon Barak’s 2002 Foreword was essentially a valedictory précis of great work he had already written. Nor was it a helpful guide to the past Term of the Court. Indeed, in its 146 pages, it mentioned just one case decided that Term. Even then, it only did so in the footnotes.
Tushnet and Lynch’s article deserves an update, asking whether the Foreword (or the Supreme Court issue as a whole) can or should survive in its traditional form, given that by the time it appears, the past Term has already been hashed over in countless online discussions and SSRN drafts. In the meantime, there must still be at least a few old fogies, like me, who look forward to the Foreword every year. And although Tushnet and Lynch are right that it is systematically disappointing, the occasional Foreword remains a pleasure worth waiting for and taking notice of. This is true of the latest Foreword, Jamal Greene’s Rights as Trumps?.
Greene’s article is in some ways characteristic of the structural constraints Tushnet and Lynch discuss. Its central subject—the contrast between the categorical approach to rights that is characteristic of American constitutional law and the proportionality analysis used by many modern constitutional courts—is not new or obscure, and Greene has discussed it before. But he has an important point to make about the contemporary relevance of that debate. In his hands, the past Term and its decisions are central to that point rather than an afterthought. His article is not tediously political; despite the potential pun involved in the title, he really is centrally concerned with “rights as trumps,” not with Trump and rights. But it is relevant to our political and cultural situation. Most importantly, the article is unafraid to raise hard questions about even its central claims.
If Greene’s Foreword were merely a plea for proportionality analysis in American constitutional law, it would be a fine introduction to that subject but perhaps less essential as a Foreword. But it is more than that. Although his “core claim” is that “a proportionality-like approach is better suited [than a categorical one] to adjudication of rights disputes within a rights-respecting democracy,” the article is really elevated by certain arguments he makes along the way. These arguments are closely related to and illuminate the state of contemporary legal and political culture: its state of polarization, heated rhetoric, and doctrinal gamesmanship.
Greene argues that the categorical approach treats rights in a “zero-sum” fashion and thus “ill prepare[s] its practitioners to referee the paradigmatic conflicts of a modern, pluralistic political order.” Many modern conflicts, Greene writes, are “less momentous” than “paradigm cases” such as “racial segregation, McCarthyism, and the like.” This seems both true and commendably candid. It is certainly out of step with modern legal and political culture, in which practically all arguments involve dramatic assertions of high stakes and great urgency.
That high-stakes rhetoric, Greene argues, is a natural consequence of categorical approaches to rights. Its effects distort constitutional law and politics alike. In a “mature rights culture,” in which many cases involve conflicting rights claims rather than absolute and lopsided deprivations, the logic of rights-as-trumps encourages a race to the summit. The goal is to be the first to plant the flag of one’s own rights claim and to cast any competing claims into the abyss. As a great, if oddly French-accented, Scottish philosopher once observed, “There can be only one.” In such a contest, the competing right is often dealt with by denying that it exists at all. Litigants, and ultimately judges, are encouraged to paint “a portrait of rights on one side [and] bad faith on the other,” rather than acknowledging the sincerity and seriousness of the interests of both sets of citizens, even if those claims must ultimately be weighed so that one side can be proclaimed the winner.
Doctrinally, one result is that conflicting rights claims are resolved by categorically denying that a conflict even exists, either by rejecting one claim absolutely or via a variety of doctrinal escape hatches. In religion cases, an example of the former is the rejection in Employment Division v. Smith of any judicially enforceable right to accommodation in cases of religious burdens, thus eliminating the need to balance such claims against competing state or individual interests. Examples of the latter approach are legion. Take the contraceptive mandate litigation, which was statutory but closely related to constitutional law. Many lower courts in that litigation dispensed with the case by denying that any substantial burden existed in the first place. Another escape hatch, as Greene notes, is the creation of doctrinal “refuge[s],” such as the government speech doctrine. A third possibility—or inevitability—is that under such a system, seemingly categorical rules will be treated in a “dogmatic but capricious” fashion, heightened or lowered according to the majority’s view of the needs of an individual case and resulting in “tacit (and therefore baffling) distortions of the categories themselves.”
The political consequences are equally bad. Rights-as-trumps provides a “grammar” for political argument. Under that grammar, “[b]ecause the rights-as-trumps frame cannot accommodate conflicts of rights, it forces us to deny that our opponents have them.” It encourages us to “formulate constitutional politics as a battle between those who are of constitutional concern and those who are not. It coarsens us,” and exacerbates social and political polarization. The party or lawyer who finds a novel way of characterizing a “good” position as a rights claim is a bold innovator, redeeming the promise of the Constitution. The party doing the same thing on the “bad” side is a calculating conspirator, a “weaponizer,” an abuser of a venerated document. The current approach creates “a world of enemies.”
Greene prefers proportionality analysis. Proportionality is “not just another word for ‘balancing.’” It is “a transsubstantive analytic frame…that is designed to discipline the process of rights adjudication on the assumption that rights are both important and, in a democratic society, limitable.” Greene characterizes it as focused less on interpretation, as is true of the categorical approach to rights, and more on empirical analysis. The question is less whether a right exists and what it means, and more “whether the facts of the particular dispute form a sufficient basis for the government to have acted as it did.”
This is hardly a “technocratic” inquiry. Questions about means-ends fit, or whether the impairment of a right is disproportionate given the competing governmental interest, necessarily involve value judgments. But those judgments turn on the justifications offered in each individual case, rather than being smuggled into categorical rulings that are destined to be stretched or narrowed as subsequent cases arise. This doctrinal approach can be unclear but is at least more transparent. And it has the benefit, in and out of court, of lowering the legal and political stakes. It forces “litigants and their fellow citizens…to acknowledge the mutual and legitimate presence within [society] of others who hold contrary values and commitments.”
Greene wants “to move U.S. constitutional adjudication closer than it is now to the proportionality end” of the spectrum. He acknowledges forthrightly that proportionality review “is not perfect, still less in practice than in theory.” Among other criticisms, if categoricalism promises clarity but ends in doctrinal distortion and obfuscation, proportionality is transparent about reviewing competing interests, but vulnerable to concerns about how little guidance it gives for subsequent cases. Greene offers counter-arguments to all the criticisms he provides. But he does not treat these arguments as “trumps.” Nor does he promise more certainty and clarity than proportionality review can actually provide. Admirably, he provides ammunition to those who would question proportionality review. He leaves the question as it should be: not one of which allegedly perfect system to choose, but of which imperfect system is better for law, politics, and culture in a society that presents many disputes involving competing and reasonable claims on both sides.
One might raise other questions about Greene’s argument for proportionality. I offer them with some personal basis: as a Canadian-born-and-trained lawyer with a continuing interest in the doings of that country and an occasional outsider’s perspective on the folkways of American law and politics. But I freely acknowledge that I am, by now, more of an imperfectly assimilated American insider than an outsider, and that I know less about Canadian law and legal culture than I once did.
One question is armchair-sociological. It concerns proportionality and the role of elites. The kinds of “empirical” questions that proportionality seeks to answer may not involve “balancing.” But the standard proportionality test for courts in Canada and elsewhere is not much more detailed than a balancing inquiry would be. If proportionality has any tractability and predictability, does the stability come from the test? Or is it a product of shared values and consensus on the part of the fairly narrow, elite community that purports to apply it? At least when I still lived in Canada, it seemed to have much more to do with the latter. Proportionality “worked” because the Canadian legal and political elite was a mandarinate. It was increasingly diverse among some dimensions but still narrow along others. Among other things, it was heavily concentrated in a few (mostly eastern) cities but drew very little representation from elsewhere in Canada. Judges and other members of that community could speak intelligibly to each other in the general language of proportionality because they already shared and assumed the values that were submerged within their applications of the test.
Assuming that this picture contains some truth, we might ask several questions. First, if the virtue of proportionality’s “culture of justification” lies in its reliance on the “‘rationality and reasonableness’” it demands from government, and on the promise that the empirical nature of this inquiry “invites parties with a diverse set of commitments to remain invested in the constitutional system rather than alienated from it,” is that investment likely to hold if “rationality and reasonableness” mostly consist of the shared values of an elite class? How transparent will the language of proportionality really be to outsiders under those circumstances, no matter how legible it is to those on the inside? Why remain invested in the system if you suspect that your reasons and interests will forever be viewed as “unreasonable” by this class?
Second, what happens if the mandarinate becomes more diverse along ideological or cultural lines? Will a proportionality test still be workable under circumstances in which there are fewer shared assumptions and values? Conversely, what happens if the elite remains relatively exclusive and is ultimately resented and challenged? Something of the latter case seems to me to have occurred in Canada once the Western provinces gained political power and the restrictive nature of the mandarinate became more salient. The consensus view among elites in the places I know best, like Toronto, was that this new constituency was disastrous and the new regime a bunch of wreckers. Maybe so. But they were also doubtlessly refreshing to many Canadians. It is perhaps unsurprising that the same period also saw increased contestation over the Canadian Supreme Court nomination process, and a slowly growing scholarship questioning the conventions of Canadian constitutional law and urging more—well, more categorical—approaches. Given the rise of populism and relative decline or isolation of elites in many places other than the United States, this seems a timely question. Is the world of proportionality analysis, and of its advocates, a genuine bridge between contending sides—or a place that seems calm and moderate only because it’s an island, sheltered from the rest of the world?
This leads to a final question, one asked by Greene himself: Can we get there from here? Although law and politics may share a “grammar” or “style,” they may both come from the broader culture rather than influencing each other. As Greene observes, the rights-as-trump style of American legal and political argument may be perpetuated by existing polarization, “producing a cycle from which escape will be challenging.” That is an understatement. Slyly referencing Ronald Dworkin, Greene writes that his approach offers a first step on “the path to rebuilding American politics, a feat that is…worthy of Hercules.” Perhaps the most important fact about Hercules is that he doesn’t exist. Although Greene usefully shows that categoricalism is not an inevitable approach to American constitutional review, it may be that it has use in an already diverse and divided system, in which the shared values necessary for proportionality are absent. Even if that’s not so, it may be that Americans—including American legal elites—are, so to speak, constitutionally wedded to high-stakes, zero-sum conflict and to “rhetoric over judgment.” They may not really want to rebuild American politics.
These questions are not intended to score points on Greene’s article. (As they suggest, however, I have my doubts about the optimistic and prophetic tone of Greene’s conclusion and its call for constitutional “redemption.”) Indeed, one of the most praiseworthy aspects of Greene’s article is that it openly supplies its own questions and criticisms, neither limiting itself to easy questions nor suggesting that his own answers are sure to satisfy. Beyond that, Greene’s Foreword nicely manages to be both an excellent introduction to his own work and a pertinent look at the recent work of the Supreme Court. It is an equally useful introduction to proportionality in constitutional law, for those who are still in need of education on this topic. Last and far from least, it serves as a worthwhile reminder that we need not treat every dispute as a horn sounding the Last Trump (to indulge in a final pun). Instead, we should give thought to what both law and politics ought to be like, given the “less momentous” contests of competing rights that characterize a “modern, pluralistic political order.”
Brandon L. Garret, Wealth, Equal Protection, and Due Process
, Duke Law School Public Law & Legal Theory Series No. 2019-14 (Jan. 14, 2019), available at SSRN
It is a constitutional law truism that wealth and class are not suspect classifications, nor does the government have a substantive due process obligation to fund abortions or provide most government benefits. This is because our Constitution is generally seen as containing negative rights, not affirmative obligations. But there are exceptions. For example, the Sixth Amendment means that the government must pay for an indigent criminal defendant’s attorney. In his new article, Wealth, Equal Protection, and Due Process, Brandon Garrett argues that there are more exceptions than we usually think there are. Garrett shows that the Supreme Court has ruled that poor individuals are entitled to fair government treatment, creating a wider swath of government obligations to fund than we generally assume. The article’s reasoning and conclusions are powerful, especially at a time of great social inequality. Moreover, Garrett’s careful doctrinal analysis commendably avoids overreach.
Specifically, the article develops a concept called “equal process.” This term highlights the synergy between equal protection and due process in certain cases. Though not a completely new idea, the nomenclature is a useful descriptive tool, especially given some of the doctrinal complexity in this area. Garrett focuses in part on the underappreciated legacy of the U.S. Supreme Court decision in Bearden v. Georgia. In that case, the Court held that a judge could not reverse the grant of probation to a defendant, because of an unpaid fine or costs, unless the judge concluded after a hearing that the defendant willfully refused to pay, or had made an inadequate effort to obtain the resources. The judge also had to find that there were no suitable alternative remedies. In effect, the Court ruled that such a reversal must satisfy due process by fairly accounting for the defendant’s potentially suspect financial status.
Garrett shows how this kind of individual claim has succeeded in cases involving the setting of bail, driver’s license suspensions, and the imposition of various court costs. Recently, the Department of Justice even adopted a consent decree that required Ferguson, Missouri, the well-known site of a horrific shooting and race-based riots, to cease its regressive practice of imposing arbitrary court fines and costs. In 2018, a federal judge used similar due process reasoning to rule that Virginia could not just unilaterally suspend the driver’s licenses of 600,000 people who had not paid court fines or costs. Moreover, state actions like those in Virginia can also can have an impact on whether individuals with financial problems are eligible to vote, since such persons may not appear on driver’s license lists. One of the foundational cases supporting Garrett’s argument is Matthews v. Eldridge, which required the state to provide a sufficiently timely hearing regarding social security disability termination decisions and provided a general procedural due process formula depending on the costs, benefits, and risks of error.
Garrett suggests that the United States Supreme Court’s decision in the same-sex marriage case, Obergefell v. Hodges, could have more effectively used this equal process reasoning. Obergefell cites Zablocki v. Redhail, where the Court struck down a Wisconsin law that prohibited prisoners from getting married who were behind in child support. According to Garrett, Obergefell relied on Zablocki’s due process and equality components. Garrett argues that Obergefell could have emphasized the synergy of the equality and due process concerns even more clearly, and that doing so would have built a stronger precedent protecting LGTBQ individuals.
Garrett acknowledges that a major problem with his thesis is San Antonio Independent School District v. Rodriguez, where the Supreme Court upheld the state of Texas’s public school financing scheme, in which some schools received much less money per students than others. The Court said this was not intentional and that it was not a wealth classification. After all, wealthy kids live in poor school districts and poor kids live in wealthy school districts. Thus, the Court could use rationality review. Moreover, regarding due process, the Court said there was no fundamental right to a particular quality of education.
In a sense, the Court engaged in a “divide and conquer” strategy regarding the equality and due process claims. This reflects the kind of formalism that generally rules out conceptual “inter-sectionality.” The Court was also pre-occupied with not violating Texas federalism interests. Garrett’s generally excellent article could have devoted greater attention to Justice Marshall’s dissent in that case, which advocated a sliding-scale approach to judicial scrutiny when these two important interests are at stake. Marhsall’s proposal was even more fluid than the one Garrett offers, and perhaps superior.
The Court later negated a Texas rule, in Plyler v. Doe, that barred a free public education for undocumented children. The Court said it would be irrational for Texas to create a permanent underclass based on parental misdeeds. This is “rationality with bite.” The Court also explained how undocumented immigrants pay taxes and have low crime rates. Nonetheless, Rodriguez and some other cases remain problematic for Garrett’s approach.
Garrett’s article goes on to propose several creative potential uses of an equal process doctrine. In Trump v. Hawaii, the Supreme Court upheld travel restrictions applied by the federal government to individuals and refugees traveling to the United States from certain hostile nations. Though most of these people are Muslim, the Court found the directive to be a valid exercise of executive power over immigration. Importantly, the restrictions exempted green card holders, contained waiver provisions, and did not just cover Muslim nations. Garrett argues, however, that plenty of consular officials used their discretion to make decisions improperly “based on religion and ethnicity.”
Interestingly, Garrett also argues that equal process could have been used by the Court more clearly in Whole Women’s Health v. Hellerstedt. There, the Court struck down Texas requirements that abortion clinics renovate and become hospital-like facilities and that clinic doctors have admitting privileges at a nearby real hospital. These requirements meant that many Texas clinics would have to close, and that some women would have to travel hundreds of miles for an abortion, as well as satisfy a waiting period. The majority found that these restrictions imposed an undue burden on women, especially since most abortions are in the first trimester and have far fewer complications than childbirth. Garrett points out that this was an opportunity for the Court to show that the burden was especially unfair to indigent women, thus placing the wealth issue in the foreground and making clear once again the intersection between due process rights, wealth, and inequality.
These cases exemplify why sometimes joint harms really are more problematic and deserve more careful scrutiny. The equal process connection is at the forefront of litigation concerning the constitutionality of fines, fees, cash bail, and perhaps also soon to involve challenges to voting procedure. The connection between equality and procedure will be all the more important if provision of social benefits are reconsidered and expanded.
It is an interesting, insightful, and attractive argument. Unfortunately for its supporters, however, the Supreme Court’s current composition will surely stand in the way of such developments.
Cite as: Mark Kende, Constitutional “Equal Process” and the Problem of Poverty
(March 12, 2019) (reviewing Brandon L. Garret, Wealth, Equal Protection, and Due Process
, Duke Law School Public Law & Legal Theory Series No. 2019-14 (Jan. 14, 2019), available at SSRN), https://conlaw.jotwell.com/constitutional-equal-process-and-the-problem-of-poverty/
Say what you will about sports metaphors in legal writing, but Professor Mark Tushnet’s “constitutional hardball” descriptor has proven remarkably useful in capturing one of the most vexing political dynamics of our time: the political parties’ resort to “claims and practice…that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with…the ‘go without saying’ assumptions that underpin working systems of constitutional government.”
Recent examples of such practices abound. A short list might include efforts by lame-duck Republican legislators in several states to strip state executive offices of power before newly elected Democratic governors take office; the abandonment of the filibuster and embrace of nomination holds in judicial appointments; and refusals to raise the national debt ceiling in disputes over broader legislative priorities. In these terms, Democrats’ refusal to support the President’s call for wall funding is not hardball (for opposition party opposition to a presidential initiative breaches no norm); Republican refusal to allow a vote to fund any government operations unless Democrats agree to wall funding is hardball to a tee (so to speak) (for it breaches the norm of passing at the least continuing resolutions to allow government to function until compromise over particular agenda items can be reached).
After grappling with how we might best understand this behavior (from either side) as more or less destructive of our separation-of-powers scheme in his article Self-Help and the Separation of Powers, Professor David Pozen, here joined by Professor Joseph Fishkin, now takes on the daunting task of describing how such hardball tactics have been deployed in practice. Their primary findings: both parties play hardball, but Republicans do it more often than Democrats, and the reasons for this flow from the differing institutional incentives and ideological commitments of the parties. Whether one agrees with this assessment or not—and Fishkin and Pozen have generated multiple responses already—the piece will be necessary reading for those who are interested in understanding the phenomenon or in developing strategies to manage it.
The essay’s strong descriptive claim—that Republicans resort to hardball tactics more often than Democrats—is wisely introduced by first cataloguing the methodological challenges that confront any form of bean-counting in this context. As the authors note, the grounds on which one distinguishes constitutional law from constitutional norm is hardly settled. The counters themselves inevitably suffer from biases of their own, and the tit-for-tat nature of hardball tactics make it of some moment when in history one begins the count. Given such challenges, the authors disclaim any systematic attempt at measurement in favor of “a more encompassing, qualitative approach,” which involves “scour[ing]” the “legal, political science, and popular literatures on constitutional conflict in the political branches,” and highlights examples like the Republicans’ redistricting initiatives and the Democrats’ use of the recess appointments power when the Senate was still in (pro forma) session. While one may regret the absence of at least a somewhat more methodologically defined approach, the authors’ conclusion that Republican initiatives predominate is bolstered by their observation of several ambient phenomena. For example, while the Democrats have yet to adopt various Republican-initiated tactics (like debt ceiling brinksmanship or voter suppression measures), the Republicans have generally embraced Democratic hardball initiatives (like pro forma sessions in the Senate and filibuster elimination). Further, as political science has now well demonstrated, the Republican Party has moved farther to the right in recent decades than the Democratic Party has moved to the left. The reality of asymmetric polarization to date is at least consistent with the theory of asymmetric hardball.
Above all, as the authors detail, the parties’ differing institutional demands and ideologies suggest that Republicans’ disposition toward hardball tactics may be hard-wired in to their governing incentives in ways that they are not for Democrats. For instance, while both parties’ incumbents at times face primary fights with challengers from the far right or left, primary challengers have historically been far more successful in defeating Republicans than Democrats, meaning that Republican office holders in the lead up to the 2018 election included a larger share of relative extremists than Democrats. Likewise, a powerful network of outside Republican donors and advocates targets more moderate Republican Party members specifically, including those more inclined to embrace compromise positions, while key outside Democratic donors and institutional constituencies have continued broadly to favor establishment candidates.
As for contrasting ideologies, it is not hard to see how a party committed to smaller, limited government would be relatively more comfortable with hardball measures like government shutdowns and failure to raise the debt ceiling that would effectively render the government incapable of acting. Perhaps less apparent has been, as the authors describe it, Republicans’ growing “politics of constitutional restorationism:” the view that the entire post-New Deal growth of legislative and administrative agency power (among other things) is not only misguided but in some sense illegitimate from the outset. Given this, it should be less surprising that Republicans would also be relatively more comfortable than Democrats in abandoning twentieth century institutional norms that have the effect of blocking restoration of the ‘original’ constitutional scheme.
It is this last point that illustrates most acutely the dilemma of describing the phenomenon of constitutional hardball: The very real prospect that neither Republican office holders nor their constituents view the practices the authors highlight as hardball at all. While there is some question how much the restorationist beliefs the authors describe animate hardball practice day to day, to those who hold this view, it seems likely they see at least some of their conduct not so much as violating “unwritten norms of government practice,” but rather as upholding an actually written down constitutional rule. Pozen and Fishkin’s work suggests it may not be possible to escape the hardball era without at some point mapping in more specific terms whether and to what extent a particular norm exists, and whether and to what extent it grew up to supplant some pre-existing or latent commitment to an alternative constitutional settlement. For whatever the reality of hardball practice, it has become apparent that a fair number of our democracy’s “‘go without saying’ assumptions” actually need to be said.
Cite as: Deborah Pearlstein, Asymmetric Normalcy
(February 26, 2019) (reviewing Joseph Fishkin and David Pozen, Asymmetric Constitutional Hardball
, 118 Colum. L. Rev.
915 (2018)), https://conlaw.jotwell.com/asymmetric-normalcy/
Kevin Toh, Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation,
in Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy
(Lisa Crawford, Patrick Emerton, & Dale Smith, eds., 2018), available at SSRN
Kevin Toh’s Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation offers a fresh and lucid discussion of the relationship between constitutional interpretation and musical performance. Toh is by no means the first scholar to have observed the connection between the two pursuits: Jerome Frank, Richard Posner, Sanford Levinson and Jack Balkin, and others have noted and analyzed the shared nature of the challenges that judges and musicians confront. But Toh’s article, written in honor of the Australian philosopher Jeff Goldsworthy, offers a welcome contribution to this intriguing line of inquiry, mining the music-law analogy for rich and revealing insights about the values of authenticity and fidelity as they apply to both of these interpretive endeavors.
Toh begins his discussion by highlighting an oft-analyzed issue within the philosophy of music—namely, that of the “ontological status” of musical works (P. 3.) When we talk about songs, sonatas, symphonies, and the like, what exactly are the objects to which we refer? Toh dismisses the possibility that a musical work is equivalent to the physical score that demarcates it. (Scores, after all, can be annotated, shredded, or left at home, and that is hardly true as to a “cantata” or “concerto.”) He also rejects the possibility that a musical work equates to a “score-type”—an abstract representation of the score’s particular instructions (P. 3.) Score-types often fail to specify important components of a musical performance, including components that are “important enough to be considered nonoptional if the performances are to count as performances of the relevant works” (P. 4.) And he further rejects the possibility of treating the musical work as equivalent to the “meaning” of the score, where the score’s meaning is understood to be the performance that the score as a whole prescribes (P. 5.) This conception too, Toh argues, fails to acknowledge the fundamental incompleteness of the score’s demands. Plodding through the notes on a page is not the same thing as performing the piece. A “true” and “authentic” version of the piece requires phrasings, voicings, dynamics, and other expressive elements that the score does not always convey.
That leads Toh to another possibility: Perhaps a musical work corresponds to the “pragmatically-enriched meaning” of a score. If a work encompasses something more than the score’s abstract instructions, then that “something more” might be the “traditions or conventions governing interpretation and performances of the relevant music” (P. 5.) This expanded definition would no doubt narrow the gap between what a song consists of and what a score connotes. All the choices necessary to ensure an authentic performance might not appear within the four corners of the score, but the norms of a musical tradition might still be seen as incorporated by reference. And thus, the argument would go, when a performer has adhered to both the score’s instructions and the stylistic expectations of the relevant musical tradition, that performer can be said to have rendered a faithful representation of the work itself.
To Toh, however, even this expanded conception of a musical work would remain incomplete. The problem, as he sees it, is that some musical performances could still qualify as fully “authentic” even when they depart from the broader, “pragmatically-enriched” meaning of a score (P. 5.) Sometimes, that is, musicians who “take some liberties with the score, even in the pragmatically enriched . . . sense” will deliver performances that are “truer or more faithful to the relevant musical work, more authentic, than any that would adhere strictly to such a score” (P. 6.) Toh refers to such performances as “radically authentic musical performance[s],” or “RAMPs” for short.
Toh illustrates the concept of a RAMP with a hypothetical. Suppose that:
[t]he composer of a musical work and his audience had formed certain anticipations for performances of a work based on what he wrote, what the performance traditions or conventions for the relevant kind of work had been up to that point, and the instructions and tips that the composer had given to some musicians earlier. Then a new musician or ensemble comes along and delivers an electrifyingly new, even revolutionary interpretation. All, including the composer, are initially scandalized. The newcomers persist undaunted, however, and after a period of time, some critics, and the composer himself, are brought around. Eventually, the composer opines, and many agree, that the new interpretation is a ‘revelation’, and has enabled him and others to see the aspects or even the nature of the work that had hitherto eluded him and others. (P. 6.)
Toh offers some examples of RAMPs in action, but let me hazard an additional one from the domain of popular music. I (and I suspect others) have sometimes come across cover versions of songs that don’t just sound better than the original versions, but also, strangely, seem to adhere more faithfully to the “song” being performed. We can quibble about what entries belong on this list, but the general idea is that one musician might sometimes perform another’s work in a way that, while sounding quite different from the original recording, nonetheless better “captures the essence” or “gets to the core” of the source material. Hearing these covers evokes the thought: “Now that’s what that song was meant to be.” And by this we mean not that the cover conveys the performance the songwriter had always intended, but rather that the cover conveys a performance that better befits the song itself.
The idea of a RAMP suggests that our judgments about musical authenticity cannot be wholly disentangled from a deeper-level set of judgments about the nature of the work being performed. To some this might sound like nonsense: The most authentic performance of a musical work is the one that best aligns with what its author(s) and original audiences expected the work to sound like, period. But in a world that allows for the possibility of RAMPs, the “fidelity,” “purity,” or “truth” of a performance depends on not just the extent to which it sticks to the composer’s original plan, but also the fullness with which it realizes the potential that lies latent within the work. We might characterize such assessments as grounded in a sort of inner “logic” that emerges from the piece after its creation (P. 10.) Or, as Toh elsewhere speculates, we might even characterize such judgments as stemming from “what we find aesthetically valuable and interesting about that work or works of that type” (P. 19.) But however we ultimately communicate the point, a RAMP would represent a performance whose authenticity derives not from its similarity to whatever the composer of the piece envisioned, but rather from the listener’s own sense of what the piece itself demands.
Toh recognizes that our intuitions may vary as to whether something like a RAMP could ever exist. But if the intuition is correct, then it raises an interesting question about judicial work with written constitutions and, indeed, any form of written law. If performers can authentically interpret music while moving beyond a work’s pragmatically-enriched original meaning, then perhaps judges can do the same when they work with written legal texts, including constitutions. Just as musicians might sometimes render radically authentic musical performances, so too might judges render “radically authentic constitutional interpretations” (“RACIs”)— “performances” of a constitution that turn out to be “truer or more faithful to the constitution” precisely because they do not “strictly adhere” to the text’s “pragmatically enriched meaning” (P. 14.)
Toh’s claim here is not simply the familiar one that judges sometimes have good reason to depart from a constitution’s meaning (even in pragmatically enriched form). That would amount to a straightforward prescription for “non-originalist” judging, and so it would be subject to the standard stock of criticisms that such a prescription invites. Instead, Toh’s claim is that authentic constitutional interpretation might sometimes permit, or even require, judicial departures from the pragmatically-enriched constitutional text. And on this view, originalism and non-originalism need not stake out competing positions on the importance of interpretive fidelity as an adjudicatory value. Rather, non-originalists can be just as “committed to fidelity to the constitution as much as originalists,” while simply “believ[ing] that the constitution that judges must accurately reflect is not wholly constituted by the meaning of the constitutional text” (P. 21.) The non-originalist judge is not so much like the performer who decides to ignore the sheet music and play a better song. Rather, she is like the performer who regards the sheet music as only partially constitutive of the “song” to be performed.
It would be too facile, as Toh recognizes, to contend that that RACIs must exist simply because RAMPs exist (or vice versa). Constitutional texts and musical works are different in important respects, and those differences might end up supporting different conceptions of interpretive authenticity within each domain. Constitutions, unlike songs, exert binding force on people and institutions; constitutions, unlike songs, emerge from lawmaking bodies that claim a special authority to create them; constitutions, unlike songs, can be formally altered only through specifically-designated amendment procedures; and so on. But that is, in a way, the ultimate point of Toh’s extended riff on the music-law connection. What the example of musical performance helps to illustrate is that the ideal of interpretive authenticity depends at bottom on how we define the object to be interpreted. And, as Toh once again suggests, the question of how we define the object to be interpreted may depend, at least in part, on what we find “valuable and important” about the object itself (P. 19.)
This last observation tees up the final and most daunting question that Toh takes on: If our surface-level judgments about constitutional fidelity depend on deeper, value-laden conceptions of what counts as fundamental law, then is there an “ontology of constitutions, or of laws more generally, that would yield a conception of constitutional or legal authenticity that permits non-originalist adjudication, and at the same time meshes in the right and disciplined way with our normative interests”? (P. 21.) Toh has not fully worked out such an account, but he does here begin to sketch out how it might proceed. The central strategy involves the seeking out a “vindicatory natural history” of non-originalism—a sort of “state of nature narrative” that begins with some “initial situation” and spins out of that situation a tale by which non-originalism might have evolved to serve some salutary or worthwhile human needs (P. 21.) The idea is not to make any particular historical claim about how non-originalism actually came to be, but rather to tease out the most salient practical interests that legal systems help to serve—interests, perhaps, such as the coordination of collective behavior, the facilitation of long-term planning, or the expression of public values—and then to demonstrate, by reference to those practical interests, why and how non-originalism jibes with the most valuable and important features of the law to which it applies.
I won’t here rehash this last part of Toh’s paper, but I will certainly commend it to the reader’s attention. Suffice it to say that Toh’s roadmap of the argument, though tentative, is nuanced, wide-ranging, and challenging, drawing on the work of legal theorists, literary theorists, philosophers of art, social psychologists, and evolutionary biologists. And staying true to the topic at hand, the discussion highlights additional interesting connections between legal and musical interpretation, thus, in my view, further bolstering the case for thinking about these pursuits in tandem.
I’m reserving judgment as to whether this broader jurisprudential project can succeed, but Toh deserves credit for teeing it up in the way he has done so here. His insights about musical and legal authenticity are interesting in their own right and all the more so when considered together. They have left me rethinking some of my own assumptions about the nature of authenticity as an interpretive ideal, and they have raised plenty of follow-up questions that are well worth pondering on their own terms. Having previously assumed that the music-law analogy had run its scholarly course, I was delighted to encounter this powerful new variation on a well-worn theme.
Cite as: Michael B. Coenen, Of Constitutions and Concertos
(December 19, 2018) (reviewing Kevin Toh, Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation,
in Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy
(Lisa Crawford, Patrick Emerton, & Dale Smith, eds., 2018), available at SSRN), https://conlaw.jotwell.com/of-constitutions-and-concertos/
In recent years, there has been a resurgence of interest in the Gilded Age and the Lochner era. When one reads that the three richest Americans now control more wealth than the entire bottom half of the United States population, one cannot help but think of the vast wealth disparities between the Gilded Age’s railroad barons and oil tycoons and the masses of Americans who worked for them. For many, the Court’s recent decisions on topics such as unions and campaign finance likewise call to mind the Lochner era, in which legislative efforts to mitigate various kinds of inequality were sacrificed on the altar of “economic liberty.” But increasing income inequality and the neo-Lochner undertones of some of the Court’s recent decisions are not the only features of contemporary law and politics that call to mind the decades before and after the First World War. The resurgence of anti-immigrant sentiment and the current Administration’s pronounced efforts, both rhetorical and legal, to make clear who is welcome in this country and who is not echo in profound ways the xenophobic attitudes and acts of exclusion directed at “foreigners” in the early decades of the twentieth century. That is why Gabriel (Jack) Chin and John Ormonde’s recent article, The War Against Chinese Restaurants, so captured my attention when it was published earlier this year.
In this article, Chin and Ormonde recover the largely forgotten history of the national campaign, in the last decade of the nineteenth century and the first decades of the twentieth, to eradicate Chinese restaurants from the United States. Although the number of Chinese immigrants in the U.S. decreased over those years as a result of tight restrictions on Asian immigration, the number of Chinese restaurants skyrocketed. In 1870, Chinese restaurants employed 164 Chinese workers; by 1920, such restaurants employed over 11,400 Chinese workers. By that point, it had become clear that the “Chop Suey craze” was not just a fad. Americans seemed to have a limitless appetite for Chinese food. But the rapid proliferation of Chinese restaurants exacerbated powerful nativist anxieties about economic opportunity, immigration, and the racial make-up of the American polity. Unions in particular decried the diversion of jobs and money away from “the American wage-earner” and to “workers and employers from the Orient.” Union leaders feared that the low wages and low prices associated with Chinese restaurants would depress restaurant workers’ pay and deprive so-called American restaurants of much-needed revenue. Deeply intertwined with these apparently economic concerns was the widely-shared fear that Chinese immigrants constituted a threat to “traditional” American culture and that Chinese men, often portrayed as shifty opium-pushers, posed a threat to the safety of white women. Thus began a decades-long campaign, orchestrated by unions, politicians, and law enforcement officers, to eliminate Chinese restaurants from cities and towns across the country.
Chin and Ormonde provide a rich account of this campaign, and the shifting forms and rationales it assumed over time as it challenged and found ways to work around constitutional equality law. One of the first tactics unions turned to in their quest to force the closure of Chinese restaurants was the boycott. Boycotts of Chinese restaurants were common in these years, but they weren’t particularly successful. Unions fined their members to compel compliance, but the lure of the food (and the prices) was too great. There were numerous reports of union men, with an irresistible “fancy for Chop Suey,” “sneaking in the side doors of Chinese restaurants.” Union boycotts also sometimes ran into trouble in Lochner-era courts, which were fiercely opposed to union activity perceived to interfere with the operation of the free market.
When boycotts failed, unions sought to persuade policymakers and law enforcement officials to use the law to eliminate or restrict Chinese restaurants. At this point, the rationale for targeting these restaurants shifted dramatically. Increasingly, the perpetrators of the war on Chinese restaurants focused on the supposed threat these restaurants and their male employees posed to white women. This racial panic escalated dramatically after the 1909 murder of Elsie Sigel, a young white missionary from a prominent family, by a Chinese restaurant worker in New York. Sigel’s murder gave impetus to the campaign for bills all over the country banning white women from dining and working in Chinese restaurants. Numerous state legislatures considered such legislation, as did several municipalities. Interestingly, however, many of these bills encountered legal trouble. Equal protection law was not particularly robust in the early decades of the twentieth century. But many courts and commentators seemed to agree that these restrictions—“not imposed on any other restaurants”—were “plainly directed against the Chinese as a race” and thus contrary to the Fourteenth Amendment, particularly in light of the Court’s ruling in Yick Wo v. Hopkins.
Even more interesting, however, is what happened next. Largely unable to pass laws that facially discriminated against Chinese restaurateurs, opponents of such restaurants turned to facially neutral means of discrimination. Governments all over the country used planning and zoning ordinances, licensing regimes, and other ostensibly neutral regulatory measures to try to keep Chinese restaurants out of particular neighborhoods and close those in operation. In many places, these efforts got a big boost from police, who patrolled Chinese restaurants, harassing both the white women who tried to eat or work in them and the Chinese men suspected of corrupting those women. These forms of discrimination—often cast in facially neutral terms—were considerably more successful in subordinating Chinese people than the facially classificatory methods of discrimination often blocked by the law.
In an abbreviated section at the end of the article, Chin and Ormonde draw a few parallels between this history and contemporary law and culture. They argue that this history shows the pervasiveness of racism: its lack of confinement to any particular region of the country, its long-lasting effects, and the way it has reserved superior economic opportunities to whites. But it is a testament to the richness of the story they tell that there is so much more one could say about the contemporary relevance of this history. The history they recover illustrates how early in the life of the Fourteenth Amendment lawmakers began to turn to facially neutral means to preserve the racial status quo and how much of the subordination of historically oppressed groups is attributable to laws and policies that do not formally classify on the basis of race. This history illustrates in a particularly vivid way how dramatically the Court constricted the ability of equal protection law to combat racial subordination when it decided forty years ago essentially to give a free pass to facially neutral state action despite any disparate effects it may have on historically subordinated groups.
There’s also a powerful story here about gender and its interaction with race. In 1909, xenophobic lawmakers exploited the murder of Elsie Sigel to argue not only for the elimination of Chinese restaurants but for a sharp reduction in Chinese immigration. Today, opponents of Mexican immigration make similar use of the murders of Katie Steinle and Mollie Tibbetts; the current President justifies his harsh stance on immigration by invoking the specter of Mexican rapists. But it is not just the depressing longevity of the strategy of stoking fear about the defilement of white women to justify the harsh treatment of racial minorities that’s interesting here. So much of Chin and Ormonde’s article is actually about women at work—Chinese women who were rendered invisible and subordinated by the portrayal of Chinese restaurant workers as sexual predators and white women who were barred from vast numbers of jobs in the name of protecting them from an imagined threat to their wellbeing. It is instructive to read The War on Chinese Restaurants in the #MeToo era, the era of the Kavanaugh hearings and the President’s Access Hollywood tape. This piece of history helps one to see more vividly how manufactured panics about the dangers of non-white immigrant men—then and now—enable those in power to obscure where the real threats to women lie.
Editor’s Note: For a previous review of The War Against Chinese Restaurants, in the Legal History section, see Joanna Grisinger, Restaurants and Regulation (November 7, 2018).
Cite as: Cary C. Franklin, Acts of Exclusion
(November 21, 2018) (reviewing Gabriel J. Chin & John Ormonde, The War Against Chinese Restaurants
, 67 Duke L.J. 681-741
In Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay, Amanda Tyler undertakes “to lay out as comprehensively as possible the full story of the legal and political history of the constitutional privilege of the writ of habeas corpus.” She does so with care and style.
In excavating what she calls the “forgotten” Anglo-American legal history of the writ of habeas corpus, Tyler begins, of course, at the beginning, in seventeenth-century England. Among the products of Parliament’s longstanding battle for power with the crown, the original Habeas Corpus Act of 1679 provided that a person who could claim the protection of English law could be detained—that is, imprisoned by the king and his ministers—only through timely criminal prosecution and conviction. Absent timely prosecution, the Act required the prisoner’s discharge. Period.
Because the Act made no allowance for wartime or other emergency detentions, however, ten years later Parliament scrambled to create an exception by inventing the concept of suspension—in which Parliament (but not the crown) could suspend the Act’s protections during times of crisis. But once a suspension expired, the Act again put the government to a clear and simple choice: either prosecute the detainee or release him. Period.
A century later, England’s view that the Habeas Corpus Act did not apply in America was among the colonists’ major grievances: England denied that Americans were entitled to the rights of Englishmen, while Americans believed otherwise. After the Revolution, each of the newly united states quickly enacted statutory or constitutional habeas corpus protections (or both) of their own, such that a half-century later Joseph Story’s Commentaries concluded that the Act had been “incorporated into the jurisprudence of every state in the Union.”
The drafters of the new national government quickly followed suit. Those at the Philadelphia convention sought to improve on English protections of individual rights by expressly limiting the Constitution’s suspension power to those times “when in Cases of Rebellion or Invasion the public Safety may require it.” The early Congress took this limitation on its power to suspend seriously—so seriously that it rejected the first proposal for suspension, made by then-President Thomas Jefferson in response to Aaron Burr’s military conspiracy.
Not until the Civil War did the United States see its first suspension of the writ, famously (or infamously) asserted by Lincoln as President. Tyler concludes that Chief Justice Taney had the better argument—certainly backed by history—when he concluded that suspension is a legislative and not an executive power (Congress eventually passed legislation that delegated the power to Lincoln). But everyone, including Lincoln, agreed that suspension was necessary before the government could detain persons outside the criminal process who, like Confederate sympathizers, could claim the protection of American law. And shortly after the War, during Reconstruction, Congress authorized President Grant to suspend the privilege to deal with rising Klan violence in the South.
Well into the 20th century, as Tyler painstakingly documents, the consensus understanding remained consistent: “[T]he origins and long-standing interpretation of the Suspension Clause understood it to prohibit the government, in the absence of a valid suspension, from detaining persons who can claim the protection of domestic law outside the criminal process, even in wartime.” Even in wartime. Especially in wartime.
But World War II brought the sea change in which this longstanding understanding was “forgotten.” The United States government forcibly relocated and detained 120,000 Japanese-Americans (70,000 of whom were American citizens) without criminal prosecution and without a suspension of habeas corpus. Initially, Attorney General Francis Biddle advised that no such detention could occur without a suspension of habeas corpus protections. He later backed down, recounting still later that “the Constitution has never greatly bothered any wartime President.”
But the President was not alone. Not only did a majority of the Supreme Court infamously find that the federal government’s action, concededly based on race and national origin, did not violate its equal protection obligations under the Due Process Clause, but it made no mention of habeas corpus protections, much less the conspicuous absence of any suspension. (As a matter of equal protection, the contemporary Supreme Court only recently finally made clear that Korematsu “was gravely wrong the day it was decided.” But still no mention of habeas corpus.)
Fast forward to the contemporary war on terror. Tyler explains how the World War II experience paved the way for the federal response to 9/11, backed by the Supreme Court in Hamdi v. Rumsfeld,, which permits the detention of U.S. citizens on American soil as enemy combatants, outside of the criminal process and absent any suspension. As Tyler explains, that response is inconsistent with historical practice (prior to World War II), as well as the framers’ understanding
And although the Court in Boumediene v. Bush, concluded that Guantanamo detainees enjoyed habeas protections, it did not order “the traditional remedy of release from custody” even though Congress has not suspended the privilege, nor had they been criminally charged. The Court instead held that the detainees were entitled to greater opportunity to challenge their designation than Congress had offered them by statute. Tyler suggests that the Court has conflated, if not confused, Due Process Clause precedent with the habeas privilege in a way that undermines habeas protections. The historical understanding of the writ required prosecution, suspension, or release—one of those three things, and no other. Today’s Court has instead devised a balancing test in which detention can last for the duration of the conflict—in other words, indefinitely and perhaps as long as the detainee’s life—so long as a tribunal assesses the government’s claims to support the detention. That’s not the same.
To be sure, Tyler doesn’t insist that reliance on historical tradition is the only or necessarily the best approach to constitutional interpretation (nor does she address the role of habeas outside the wartime context, and many may be eager to hear her views on its application in the immigration setting or in other criminal justice contexts). She instead emphasizes that history is relevant and valuable, and thus that it should be part of the discussion. There may be good reasons to depart from historical understandings and practices. But it’s hard to see any good reason for failing to discuss that backdrop altogether, much less failing to explain when and why to abandon or alter longstanding and fundamental traditions.
Daniel J. Hemel & Eric A. Posner, Presidential Obstruction of Justice
, 106 Cal. L. Rev.
__ (forthcoming 2018), available at SSRN
Full-length articles on current newsworthy issues are a difficult genre. Special praise, therefore, goes to legal scholars who thoroughly explore a constitutional question on a hot-button issue not only in depth and in a timely fashion, but with insights that exceed the present moment. Dan Hemel and Eric Posner have made just such a contribution with Presidential Obstruction of Justice.
“Can a president be held criminally liable for obstruction of justice?” they ask. (P. 1.) This question has taken on greater urgency in the wake of President Trump’s firing of FBI director James Comey and the continuing investigation by special counsel Robert Mueller into Russian efforts to interfere with the 2016 presidential election and possible collusion between Russia and the Trump campaign.
Hemel and Posner’s article gives this question, and the range of constitutional and policy issues that it raises, a thorough analysis in succinct and punchy prose. They harmonize constitutional text and history—most importantly the arguably conflicting principles that the president is vested with the “executive power” and that no one, not even the president, is above the law—with federal obstruction statutes that bar anyone from interfering with law enforcement based on a “corrupt” motive. At the same time, Hemel and Posner make a broader point: “[W]ithout anyone noticing it, the law of obstruction of justice,” they observe, “has evolved into a major check on presidential power.” (P. 1.) Obstruction allegations have been levied against six of the last nine presidents or their close aides—raising the stakes on whether, and in what circumstances, a president can obstruct.
Hemel and Posner begin their argument with the arguable tension between the principle that the president controls the quintessentially executive functions of criminal investigation and prosecution and the bedrock notion that no one is above the law. Generally, as the nation’s top law enforcement official, the president possesses the power to end investigations and to fire executive branch officers who fail to maintain his confidence. If the president can fire an FBI director who displeases him, why can’t he fire one who pursues an investigation he wants shut down, regardless of motive? Surely, no one thinks that the president should be able to murder his valet and call off the investigation of it, Hemel and Posner respond. More seriously, neither should the president be able to control law enforcement to hamper political opposition. If he could, they observe, he or his aides could engage with impunity in criminal activity to harass their opponents—precisely what the Watergate burglary illustrates.
Article II suggests an answer to this puzzle, they argue. It not only vests the executive power in the president, but it obligates him to “take care that the laws be faithfully executed.” The exercise of the executive power, while vast, is not unlimited. It does not encompass the power to “corruptly” interfere with law enforcement to benefit oneself, family, or political allies. The trick is how one defines “corrupt,” meaning “with an improper purpose.”
The authors take a historical and originalist approach to this question, beginning with the Declaration of Independence’s charge that George III interfered with the administration of justice in the colonies. Parsing obstruction of justice statutes and cases, they survey the law of obstruction to the present day, including Watergate, Iran-Contra, the impeachment of President Clinton, and the dismissal of U.S. Attorneys under President George W. Bush. This historical survey helps elaborate the meaning of “corruptly.” Hemel and Posner then harmonize this history with the special role of the president in law enforcement, the constitutional provisions elaborating on that role, and recent precedents, both in the impeachment and prosecution contexts, to frame the parameters of obstruction.
Significantly, Hemel and Posner reject the unitary executive argument that the Constitution vests “complete” presidential control over federal law enforcement so that, as President Trump’s lawyers have argued, he cannot exercise the power unconstitutionally. There may be substantial gray area in what constitutes obstruction, but it is not the case that the president, by dent of his role, cannot commit it.
The article’s historical and analytical survey provides a foundation for the authors’ proposed definition of presidential obstruction: “A president commits obstruction of justice when he significantly interferes with an investigation, prosecution, or other law enforcement action to advance narrowly personal, pecuniary, or partisan interests. He does not, however, commit obstruction when he acts on the basis of a legitimate and good-faith conception of his constitutional responsibilities, even if he receives a personal or pecuniary benefit or incidentally advances his party’s interests.” (P. 37.)
Hemel and Posner do not spell out all the scenarios that might meet that standard, but they explore a wealth of variations, providing a rich basis for analyzing cases that might arise. In particular, they explore presidential discretion to intervene in an investigation because the president thinks national security depends on it, or to stop prosecuting cases involving possession of marijuana because he considers such efforts a poor use of scarce enforcement resources. But the Constitution does not authorize the president to employ his office for personal or partisan advantage—say, to advance the financial interests of a family member or call off the prosecution of a senator from his own party who is up for reelection.
The authors canvass various counter-arguments and complications, including cases of mixed motives, the pardon power, whether a sitting president can be indicted, and the canon of constitutional avoidance. The authors’ approach is nuanced and rich with examples, so we will only hit a few highlights.
Recognizing the deep challenge that mixed motive cases present, they reject a “partially corrupt motive” test as too broad, given presidents’ involvement with politics. They argue instead for a “but-for” motive: If the president would not act “but for” the corrupt motive, the charge is actionable.
Next, they ask whether the president’s exercise of the pardon power could ever itself constitute obstruction. And what of the argument (prominently made by Alan Dershowitz) that because the president possesses the power to pardon, he must possess the lesser-included power to end criminal investigations, regardless of motive?
On the first point, the authors contend that while a “corruptly” given pardon would still be effective, excusing the grantee of criminal process, it is a separate question whether the president, as grantor, could obstruct justice by granting the pardon. And because nobody thinks a presidential sale of pardons for money could not be prosecuted, in principle the pardon power can be used to obstruct.
On the second, the authors convincingly argue that Dershowitz is wrong: from text, structure, and function, the president cannot self-pardon, so he has no “lesser power” to drop an investigation of himself. Further, Dershowitz’s argument rests on a conceptual error: the power to drop an investigation is different in kind and effect than the power to pardon. The pardon power is public, with different political costs and implications, than the ability to drop an investigation in secret.
Concerning the implication for their argument of whether a sitting president can be criminally indicted, Hemel and Posner offer this synopsis: “First, the claim that a sitting president cannot be convicted of a crime while in office does not represent settled law. Second, even if a president cannot be convicted of a crime while in office, it may be possible to convict him after he leaves office of a crime he convicted while in office. Third, even if a president cannot be convicted of a crime committed while in office, he may be impeached for such a crime.” (P. 52.)
Finally, the authors consider whether the constitutional avoidance canon should be used to excise the president from the reach of ambiguous obstruction statutes. No, they conclude: the statutes contain no arguably ambiguous language. Interpreting “whoever” to mean “whoever, except the president” would do violence to the statutory language, not avoid ambiguity.
The authors make two major points in closing. First, they ask, what to make of the historical anomaly that obstruction charges have been raised against so many recent presidents or their aides, while no such charges were brought against the first 36 presidents? This development is perhaps explained, they posit, by the growth in presidential power, the difficulty of impeachment, and the weakness of electoral mechanisms to control that power. The law of obstruction, in other words, has developed as a matter of necessity, as a valuable check in the face of growing executive abilities and incentives to use law enforcement for personal or political ends.
Second, should the rise of the law of obstruction as a check on presidential power be “celebrated or bemoaned”? On the one hand, the law of obstruction may provide a needed check on abuse. On the other, its growth may mean that “all presidents will permanently be under investigation even when they do nothing wrong.” (P. 59.) The authors remain normatively uncommitted—suggesting, perhaps appropriately, that only time will tell.
In short, this is a fabulous article concerning both immediate constitutional issues and lasting constitutional structural developments.
Cortney Lollar, Criminalizing (Poor) Fatherhood
, 70 Ala. L. Rev.
__ (forthcoming 2018), available at SSRN
In the 1980s and 1990s, many scholars and advocates debated the best way to reform our country’s welfare system. During those debates, feminists called for increased enforcement of child support orders against “deadbeat dads.” Congress enacted the 1996 welfare reform act known as the “Personal Responsibility Act” at the same time as it promulgated “war on crime” measures that increased federal penalties for drug-related crimes. Twenty years later, our country is experiencing both a rising gap between the rich and poor and mass incarceration of men of color. Many scholars have discussed the problem of mass incarceration, but there is far too little scholarship on the experience of poor people affected by welfare reforms.
Cortney Lollar’s Criminalizing (Poor) Fatherhood shines a welcome spotlight on the role that law plays in increasing the misery of the poor. In this well-written and well-reasoned article inspired by Lollar’s experience as a public defender, she shows how the confluence of welfare reform and criminal-enforcement measures result in state child support systems that jail non-custodial fathers who cannot afford to pay their child support. Lollar uses feminist analysis to demonstrate how an approach once advocated by feminists actually perpetuates stereotypes about fathers as providers and undermines their relationship with their children, without aiding the mothers who the reforms were supposed to help. Criminalizing (Poor) Fatherhood is a must read for anyone interested in how our criminal justice system perpetuates racial, class, and gender inequality in our society.
Imprisoning a person who is unable to pay his debts conjures up images of Dickensian poor farms and Oliver Twist. In the 1983 case of Bearden v. Georgia, the United States Supreme Court held that imprisoning a person for his failure to pay a debt violates due process unless that person could pay the debt yet willfully refused to do so. Although that decision was grounded in the Fourteenth Amendment, forcing people to work to pay off their debts also arguably constitutes involuntary servitude in violation of the Thirteenth Amendment. Nonetheless, debt peonage is alive and well in this country, as people are imprisoned for their failure to pay court-imposed fees and fines. Fathers jailed for failure to pay child support make up a sizable percentage of those caught up in this system. Child support judgments are based on “potential” income, not actual ability to pay. Moreover, Bearden notwithstanding, fathers are rarely given a hearing to show that they simply cannot pay the debt that they owe. As a result, according to Lollar, “a father convicted and incarcerated for failing to pay child support will likely cycle in and out of the criminal justice system over his lifetime.”
Since the 1700s, states have enacted criminal laws requiring fathers to pay support for their children, but the only people who are affected by these laws are the poor who are unable to pay. The state has more effective means of collecting from wealthier fathers, including garnishing pay checks and tax returns. Current federal law requires custodial parents who file for welfare benefits to assist the state in identifying the father and establishing paternity, and then to assign their rights to collect child support to the state. The state is most aggressive at prosecuting fathers whose children receive welfare benefits.
Supporters of the existing system argue that it furthers the well-being of children and helps to fund the child support-enforcement system. Lollar effectively contests both arguments. First, she points out that the child support payments do not go to children, but to the state. Instead of helping children, jailing their fathers hurts them because it destabilizes the relationship between the child’s parents and makes it less likely that fathers will be involved in their children’s lives. Says Lollar, “If the welfare of children were truly the concern, the child support system would be designed to encourage parental involvement, not just paternal income.” Second, the cost of incarcerating fathers is far greater than the amount of the payments collected. It should also be obvious to lawmakers that jailing fathers decreases their ability to pay their debts, by disabling them entirely while they are in jail and saddling them with criminal records that make it hard for them to find good jobs after they are released.
Given the paucity of evidence supporting the policy of criminalizing the non-payment of child support, what could possibly justify this unjust system? Here, Lollar uses feminist analysis to show how a system that is supposed to help support and empower poor mothers actually perpetuates stereotypical gender roles. Says Lollar, “[We] punish fathers because they fail to fit the traditional stereotypical image of a white, heterosexual, able-bodied upper-middle-class father. Very few families conform to this image, yet our laws remain wedded to this deeply entrenched role.” Other aspects of fatherhood, including caretaking and non-cash contributions, simply don’t count. To address this problem, Lollar argues convincingly that child support systems should define child support more broadly and provide incentives for fathers to become more involved in the care of their children.
Criminalizing the failure to pay child support also has racial overtones. African-American men are disproportionately affected by the criminalization approach. At times, our system has tragic effects. Lollar begins her article with the story of Walter Scott, a black man shot in the back by a police officer in South Carolina. Scott fled police because he owed $18,000 in child support, a debt that he could never afford to pay. National outrage over Scott’s death largely overlooked the role that criminalizing child support played in this tragic incident of racial injustice. Criminalizing (Poor) Fatherhood illustrates how criminal sanctions for failure to pay child support have contributed to the mass incarceration of African-American men.
Race also influences the larger context addressed by this article: the increase in the debts of poor people, the role the state plays in that indebtedness, and the rise of modern forms of debt peonage. After the death of Michael Brown in Ferguson, Missouri, anger at the treatment of blacks by local police led to mass protests and riots. Investigators discovered that the budget of the Ferguson police force depended on fines levied for minor traffic infractions—fines that were disproportionately imposed on people of color.
For a brief moment, national attention focused on the plight of poor people of color forced to fund a system biased against them. Since then, the nation’s attention has turned to other matters, but a new wave of scholars and activists are now addressing the role that court-imposed fines and fees pay in the carceral state. With Criminalizing (Poor) Fatherhood, Cortney Lollar makes an outstanding contribution to this important project.
- Glenn Reynolds, Splitsylvania: State Secession and What to do About it?, available at SSRN.
- Richard Schragger, The Attack on American Cities, 96 Tex. L. Rev. 1163 (2018).
Recent years have seen extensive focus on legal and political conflicts between states and the federal government. Dissenting states seek greater autonomy from federal dictates. Ongoing legal battles over Obamacare and sanctuary cities are just the latest examples of this phenomenon. But we have also seen a lesser well-known trend of conflict between states and local governments. Two new articles, by prominent legal scholars on opposite sides of the political spectrum contend that local governments should have greater autonomy from states. They make a solid case that could be even stronger if each side were more able to acknowledge the concerns of the other.
There is a long history of academic analysis of state-local relations, and scholars such as Yale Law School Dean Heather Gerken have previously made a case for increasing local autonomy. But these new articles related this longstanding topic to recent political controversies—and to our world of severe political polarization, where the conflicts between opposing parties and ideologies are more virulent than they have been for some time.
Blue Localities Dominated by Red States—And Vice Versa
In Splitsylvania, libertarian-leaning conservative law professor Glenn Reynolds (most famous as the founder of the Instapundit blog) focuses on the plight of conservative rural areas subject to the dictates of urban-dominated state legislatures in blue states. These red jurisdictions chafe at state-enacted labor restrictions, gun control laws, and environmental regulations, among other things. Reynolds points out that their complaints have led to the rise of secession movements in states like California, Oregon, and Washington. Such movements, he argues, “indicate a widespread sense of dissatisfaction among (mostly rural) populations who feel that they are governed by people in distant urban centers who know little, and care less, about their way of life.” While Reynolds is sympathetic to intrastate secession movements, he is pessimistic about their chances for success. He instead argues that the federal government should step in to protect conservative local governments against their state legislatures.
From the opposite side of the political spectrum, University of Virginia law professor Richard Schragger, a leading academic expert on local government, has published an important new article on what he calls “the attack on American cities: growing red-state legislative efforts to restrict the autonomy of blue urban enclaves within their jurisdiction.” Schragger describes a wide range of issues on which Republican-controlled state legislatures have sought to override the autonomy of Democratic cities, including immigration, environmental policy, labor regulation, and others. He sees both right-left ideological antagonisms and urban-rural hostility as sources of efforts at state preemption. Ironically, among the key driving forces behind the overbearing state governments of Schragger’s story are some of the very same rural interests that Reynolds views as beleaguered victims of urban-dominated state legislatures.
Schragger’s article provides an excellent summary of state preemptive legislation, and assesses the cities’ potential legal and political defenses. He considers “home rule” provisions in state Constitutions and goes through various federal constitutional arguments cities can raise. But Schragger ultimately concludes that the options currently available to cities are severely limited. Federalism arguments that can protect cities against federal intervention—such as the Trump administration’s efforts to punish sanctuary cities—are often of little use when the city is targeted by its own state government. State “home rule” guarantees are also often weak reeds, as most can be overridden by explicit preemptive laws enacted by state legislatures. Without a significant rethinking of state-based federalism, Schragger argues, the American city is likely to remain vulnerable to state preemption.
Schragger’s analysis occasionally overlooks or downplays some key facts. For example, he criticizes state laws that allow suburbs to engage in exclusionary “zoning” to protect property values, at the expense of city efforts to promote “equality.” But studies show that some of the most severe exclusionary zoning in the nation—in the form of restrictions on construction that massively increase housing prices and lock out numerous poor and lower-middle class people from job opportunities—actually exists in “blue” cities, such as New York and San Francisco. There is also a notable tension between Schragger’s complaint that cities suffer from excessive centralization of power in the hands of state governments, and his criticism of “anti-government anti-urbanism” for its attacks on the centralization of power created by big cities themselves. Nonetheless, Schragger presents a detailed and compelling picture of how blue cities face increasing constraints at the hands of state governments on a wide range of fronts.
Perhaps the most notable gap in the two articles is that neither acknowledges the significance of the problem that concerns the other. Champions of beleaguered blue cities in red states show little concern for (or even awareness of) the plight of red jurisdictions in blue states—and vice versa.
Options for Reform
Both Reynolds’ rural red enclaves in blue states and Schragger’s urban blue enclaves in red states could potentially benefit from increased local autonomy from state governments. Greater local control might have important systemic advantages, as well. The most obvious is that more people in both blue and red states could live under the types of policies they prefer. In addition, greater devolution of power to the local level can increase opportunities for people to “vote with their feet.” It is usually cheaper and easier to move from one city to another in the same region than to decamp to a different state altogether. And foot voting is often a better mechanism of political freedom than ballot box voting, because foot voters have a far higher chance of making a meaningful decision, and much stronger incentives to be well-informed.
It is neither possible nor desirable to devolve every issue to the local level. Some problems are so large-scale that they can only be handled at the state, national, or even international level. Global warming is an obvious example of the latter. The importance of foot voting suggests the need to restrict local control over immobile assets, such as property in land, which cannot be moved in response to exploitative local policies. Such policies also often have the effect of eliminating valuable opportunities for foot voting, most notably in the case of restrictive zoning rules that lock out the poor and lower-middle class, cutting them off from valuable job opportunities. Still, over a wide range of issues in which there is little risk of losing economies of scale or destroying foot-voting opportunities, there are large potential gains from devolving power to the local level.
Increasing local autonomy from states will not be an easy task, however. Secession movements aimed at forming new states are one possible route. But, as Reynolds explains, the odds are stacked against them, because breaking up an existing state requires the consent of both Congress and that state’s own legislature.
Reynolds advocates federal legislation to protect local autonomy against the states. But it is not clear what incentive Congress would have to pass it. After all, most members of Congress (especially Senators, who are elected in state-wide elections) represent the dominant political majority within their states—the very group whose power dissenting localities seek to escape. In addition, increased congressional intervention in state-local relations might well result in greater imposition of homogeneity rather than less.
Both Reynolds and Schragger consider the possibility of state-level reform that grants greater autonomy to localities. Where feasible, this may well be the best option. But this approach, too, usually requires the support of the very same state legislatures that are undermining local autonomy to begin with.
Schragger also considers a number of innovative legal arguments that would enable federal courts to carve out greater autonomy for localities, such as expanding Tenth Amendment “anti-commandeering” rules to protect local governments against the states, in much the same way that they currently shield both states and localities from the federal government. I have doubts about the validity of these theories. In any event, as Schragger recognizes, it is unlikely that the Supreme Court will endorse them in the near future.
Schragger does note some political successes that blue cities have had in resisting state preemption. For example, cities opposed to transgender bathroom restrictions enacted by conservative state legislatures have sometimes managed to resist them by mobilizing support from “cosmopolitan” corporate interests, such as major professional sports leagues that threaten to boycott the offending states. Such pressure played a role in forcing the repeal of North Carolina’s transgender bathroom law. He also suggests that in the future, cities might have more success in winning over suburban voters to their cause than has been true over the last few decades.
In my view, Reynolds and other commentators may underestimate the potential viability of creating new states through secession. Such efforts are clearly an uphill battle. But state legislatures might agree to them if, as a result, they end up with a more ideologically homogeneous state where currently dominant forces have greater control. Financial incentives might also help lead to agreement—if the newly formed state is willing to give some sort of separation payment or “divorce bill” to its former state government, as the United Kingdom will have to do in order to leave the European Union. Congress, in turn, might consent if secession could be managed in such a way as to avoid altering the partisan balance of power in the Senate. For example, large states such as California and Texas could be partitioned in ways that create equal numbers of new Democratic and Republican states. The creation of new states through secession has occurred a few times in American history, as with the establishment of Maine and West Virginia in the nineteenth century. Perhaps the practice can be revived. Still, doing so is unlikely to be either quick or easy.
In the months since Reynolds and Schragger first posted their articles on SSRN, an initiative that would split California into three states has gathered sufficient support to secure a place on the state’s November ballot. Just recently, the California Supreme Court ordered the question removed from the ballot in order to leave time to consider a legal challenge to it; the court did, however, rule that the question might be included on the 2020 ballot. Even if the question is reinstated for 2020, it is far from clear whether the initiative will prevail, and whether Congress will consent to it if it does. But its success in gathering the nearly 400,000 signatures needed to get on the ballot in the first place suggests that the idea of breaking up large states may be more viable than most experts have come to believe.
I am not optimistic that we can achieve a major increase in local autonomy from state governments in the near future. But the debate over this question is just starting to heat up again. It is possible that new strategies for devolution can be developed. From that standpoint, increased interest in the issue on different sides of the political spectrum is a hopeful sign. It would be even more helpful if advocates of increased local autonomy on different sides of the political spectrum would take more account of each other’s concerns. Reynolds’ and Schragger’s insightful articles are, we can hope, part of a dialogue that will grow over time.
Editors’ Note: Parts of this post have been adapted from a blog post at the Volokh Conspiracy blog, hosted by Reason.
Cite as: Ilya Somin, Should Local Governments Have Greater Autonomy from State Governments?, JOTWELL (August 8, 2018) (reviewing Glenn Reynolds, Splitsylvania: State Secession and What to do About it?, U. of Tenn. Legal Studies Research Paper No. 343 (2018); Richard Schragger, The Attack on American Cities, 96 Tex. L. Rev. 1163 (2018)), https://conlaw.jotwell.com/should-local-gov…tate-governments/ .
Are we all still “Legal Realists now?” So it is often assumed. But there are reasons to wonder. Today, it seems, many legal scholars are private Legal Realists only. Their public writing—whether scholarship, public commentary, or legal advocacy—shows few traces of Realism. They are writing to persuade judges or the general public. That counsels against admitting their arguments are malleable and have as much to do with external factors as the “internal” practice of law. To persuade this audience without causing resistance or cynicism, they cannot put all their cards on the table. Is that concealment Legal Realism, or something else—perhaps bad faith?
This question is especially relevant in the Age of Trump. Many legal scholars today are engaged in what Twitter calls #Resistance to the Trump presidency. They see an urgent need to convince judges to counter Trump’s actions. That includes a willingness to urge judges to stretch or reshape existing law. Any Legal Realist understands that this kind of stretching is possible, if not inevitable. They know that judges work with plastic materials and that the springs of their decisions are both “external” and “internal” to the law. Given the perceived urgency of “resistance” to the administration, will scholar-advocates openly acknowledge all this, at the risk of scaring off judges or alienating the public? Or will they keep such thoughts to themselves, insisting publicly that they only seek loyal interpretation and enforcement of “the law?”
One can illustrate these questions by contrasting the excellent article I discuss here—Sanford Levinson and Mark Graber’s The Constitutional Powers of Anti-Publian Presidents: Constitutional Interpretation in a Broken Constitutional Order—with a recent New York Times op-ed about legal and judicial resistance to Trump. There, Dahlia Lithwick and Stephen I. Vladeck criticize those who have suggested that judges are “shirking their institutional roles as neutral magistrates and ‘joining the resistance’” in some rulings against the administration. Such arguments, they charge, are questionable because, among other things, these opinions are “often rooted in sound doctrinal principles.” By charging that these rulings are “biased or unprincipled,” these critics are entering “dangerous new ground” and engaging in “a direct attack on the independence and integrity of the entire judicial branch.”
What would a Legal Realist make of such arguments? A historically informed Legal Realist would recall that Realism reached its height in the early years of FDR’s administration, when judicial rulings against New Deal legislation were publicly accused of being “biased or unprincipled,” and members of the administration itself, including then-Attorney General Robert Jackson, described the federal bench as “claim[ing] for [itself] the right to nullify” the law, warning that legalistic efforts to hamper the people’s will risked the rise of “dictatorship.” She might reflect that calling judges “partisan hacks in robes” sounds less like “dangerous new ground” and more like a familiar echo of very recent writings. The Realist would reason that if lawyers describe themselves as an active “#resistance,” they must surely want judges to agree with their arguments and act accordingly. She would chuckle at the confident assertion that decisions blocking the administration are “rooted in sound doctrinal principles,” or the remarkably non-Realist description of judges as “neutral magistrates.” She would note with amusement such hedges as “often rooted in sound doctrinal principles.”
My point is not to disagree entirely with that op-ed. Whether they fairly describe those they criticize or not, they’re right that simplistic wholesale attacks on judicial rulings risk overstatement. (Of course, simplistic wholesale defenses of the federal judiciary also risk overstatement.) But confident references to judges as “neutral magistrates,” and invocations of shibboleths like “impartiality” and “the rule of law,” makes it easy to wonder whether we are “all” genuine Legal Realists any more—or whether an increasing number of legal scholars either reject Realism or conceal it behind a façade of non-Realist rhetoric. Ironically, one reason for doing so is itself Realist: Legalist rhetoric aids judges who deliberately use malleable legal materials in a “creative” fashion to counter Trump, and helps convince the public that those judges are merely applying “sound doctrinal principles.” It seems strange to argue for a legal “#Resistance” to the Trump administration, one that includes judicial review, without thinking that anyone wants judges to move the law in the direction of the resistance, even if that involves quiet “extensions” or rejections of current “doctrinal principles.” Reading pieces like this, one may long for straightforward, openly Realist advocacy of forceful judicial resistance.
With commendable candor, Levinson and Graber make just such an argument. Interestingly, their argument is Realist in its description of how law operates and its rejection of the idea of law as autonomous and generally applicable. But the article’s vision of the Constitution contains ideas we do not generally associate with the Realists. Rather, it is virtue-centered. It argues that our Constitution demands not just a “government of laws and not of men,” but one administered by virtuous men and women. For this reason, judges and other legal actors should apply more skeptical legal standards to the present administration. Their argument is valuable not only for whatever short-term strategic purposes it may serve, but for its broader vision and the many difficult questions this vision raises.
At least in their willingness to put their cards on the table—to argue that this administration requires a different (but not, they argue, unprecedented) approach by judges, that political reality is relevant to this approach, and that this is not simply a matter of “neutral magistrates” applying existing law—Levinson and Graber’s article is both openly Realist and praiseworthy for its honesty and forthrightness. It is what scholarship of quality and integrity should always do—even in the time of #Resistance. Such scholarship not only suggests an immediate fix to a current problem, but is unafraid to raise interesting, productive, and sometimes troubling questions about the implications of that proposal. The very fact that Levinson and Gruber’s article raises these questions, or enables them to be raised by others, is reason enough for praise.
Their argument can be summarized easily enough: Trump is very, very bad. This summation is not mockery but fair description. President Trump “lacks every constitutional qualification for office save that he was elected.” His “gross unfitness for office” is widely acknowledged. Everything in his presidency to date proves this. I take this premise as true for purposes of the jot. (Given that plenty of solid evidence supports it, however, it’s unfortunate that they sometimes rely on questionable sources or speculation.)
Trump’s awfulness matters for more than consequentialist reasons, they argue. Although our legal culture speaks in terms of “laws, not men,” the Constitution is not “indifferent to the character of the office-holder.” Rather, “The Constitution presupposes at least some version of what we call ‘Publian presidents,’ presidents with the character and capacity necessary to exercise the vast powers conferred by Article II.” As The Federalist Papers and other sources suggest, the founding generation was deeply concerned with the character of office-holders in republican government. They sought “to guarantee, as far as is humanly possible, the selection of persons with exceptional capacities and virtuous character.” They envisioned an “intimate…connection between the character of an official and official powers.”
General arguments of this sort have been popular at least since Douglass Adair’s famous essay on fame and the founding fathers. The result of such a worldview, then as now, is not neat, but it is important, especially for its focus on ideas—such as duty, honor, virtue, and character—that have faded in public usage and even been described as obsolete. Renewed interest in these ideas in recent (and pre-Trump) years has birthed a number of approaches taken to constitutional thought, such as arguments for an aretaic turn in constitutional law, a fiduciary vision of office-holding, renewed attention to constitutional oaths, and a focus on judicial duty. These authors have varied politics and draw varied conclusions. But they share the belief that in our constitutional ethos, character matters. It is interesting, if unsurprising, that such arguments have recently drawn new advocates.
Virtue-centered arguments rarely produce clear judicially enforceable standards. But Levinson and Graber argue that they should, for officials (including judges) responding to the Trump administration. Constitutional interpretation must “respond[ ] to breakdowns in underlying assumptions” about the proper functioning of our system of government. That includes responses to an “anti-Publian president” such as Donald Trump. “Texts are routinely interpreted differently when crucial background conditions fail.” Such departures from standard practice may demand clear reasons and evidence, given the strong presumption “in most interpretive practices that background conditions are functioning smoothly.” But departures are possible, and legitimate.
Drawing creatively on various cases, Levinson and Graber argue that this is true in constitutional law as well. One example they deploy is Brown v. Board of Education and its progeny, which they describe not as a simple, if celebrated, application of ordinary law but as an extraordinary response to a breakdown: a “judicial commitment to eradicate frauds on the Constitution.” Similarly, the First Amendment decision in New York Times v. Sullivan was “motivated by commitments to racial equality as much as commitments to the First Amendment,” and as having involved the use of creative improvisation to “alter[ ] rules of normal practice to account for constitutional breakdowns in the Jim Crow South.”
These examples vary greatly from separation of powers law. But Levinson and Graber use them to draw a broad lesson: “Constitutional decision-makers faced with constitutional failures, American history teaches, jettison rules of constitutional practice and constitutional interpretation rooted in assumptions that constitutional institutions are functioning normally.” With respect to the Trump regime, “judges and other governing officials” should be “wary” when interpreting the actions of the administration and the justifications offered for them. They should eschew rational basis review and view all such actions skeptically, with something like a presumption of unconstitutionality. Under an anti-Publian president, “courts should adopt the presumption that the efforts to implement that [president’s] platform violate the Constitution until the program is redesigned in ways that eliminate unconstitutional features ‘root and branch.’” Courts and other officials, “explicitly or implicitly, [should] engage in motive analysis, up the standard of scrutiny, and interpret statutes as not delegating power when adjudicating Trump Administration efforts to exercise Article II powers.”
Levinson and Graber believe the benefits of this approach outweigh any costs. And they suggest, far more candidly than some others have, that some lower court rulings against the Trump administration are evidence that this is already happening. They thus argue, both, that these courts are doing and not shirking their duty, and that their decisions are not simply the actions of “neutral magistrates” applying “sound doctrinal principles.” In tension with their argument that departures from ordinary legal presumptions have a long historical pedigree, they conclude that “the lack of deference to presidential authority that persons outside of Congress [including judges] have demonstrated in Trump’s first year seems unprecedented.”
Their willingness to describe these departures as departures is refreshing. It’s not the kind of thing that someone who wants to persuade courts to resist this “anti-Publian president” will want to say openly. Although some judges might be pleased to be seen as part of the vanguard of the #Resistance, for the most part they either want to believe that they are applying existing law routinely, or would prefer that no one publicly suggest (or reveal) that they are not. To borrow Philip Bobbitt’s terms, “We are ruling differently in this case because the President is awful” is not an accepted mode of constitutional argument. To say so publicly would make judges look less judicial, risk the courts’ political capital, and draw the critical scrutiny of both the Supreme Court and (some of) the general public.
In being so candid, Levinson and Graber offer ammunition to critics and hostages to fortune. That, of course, is precisely what scholarship of and integrity should do. It is not the job of legal scholars—even in times of emergency—to abandon candor, flatter judges, collude with them in disguising “anti-Publian” departures as routine applications of existing law, or say and write what they do not actually think. It should not require unusual courage for a legal scholar—tenured, secure, and privileged and affluent by any sane standard—to write as Levinson and Graber do here. That their frankness is at all unusual is a credit to them and a question mark about legal and constitutional scholarship more generally.
A candid, forthright, and sweeping argument of this sort, as I noted, inevitably offers hostage to fortune, in the form of the critical questions that it raises, both explicitly and by implication. Levinson and Graber’s analysis and prescription would have dramatic implications for constitutional interpretation. It thus raises substantial questions.
Some of them are self-evident. How do we know when a president is “anti-Publian?” In a polarized era in which each new president or presidential candidate is described as the worst threat to the Republic yet, and in which people come to believe such propaganda—that people came to view the milquetoast technocrat Mitt Romney in this way proves this—do citizens or office-holders, judges included, have sufficient character to distinguish “anti-Publian” leaders from those with whom they simply disagree? Some If they are right, why should we think that judges or other officers will have the wisdom and character to know and respect the difference between a Publian and an anti-Publian president? Levinson and Graber acknowledge these questions, as they should. It is in the nature of good scholarship to acknowledge difficult questions and hope they will lead to better conversations.
Another important question, one I have noted here before, is what the precise goal of extraordinary skepticism toward anti-Publian presidents in general, and Trump in particular, should be. Should it be one of total resistance? Or should it be to nudge such a president into a more “Publian” mode—to “normalize” that president—and then return to the standard, deferential approach to routine executive action? Levinson and Graber write that “courts should adopt the presumption that the efforts to implement that [president’s] platform violate the Constitution until the program is redesigned in ways that eliminate unconstitutional features ‘root and branch.’” That suggests they favor the latter goal, although that is unclear.
The authors may think that Trump, being Trump, can never be made into a truly Publian president. They may be right. But as their history of bad presidents suggests, there are degrees of Publian and anti-Publian conduct. That is especially true given that the executive branch requires the cooperation of principal Article II officers, ordinary federal bureaucrats, and perhaps Congress to affect people outside the government. I think Trump’s “travel ban” executive orders are terrible policy. One or more of their iterations may be unconstitutional, although an ordinary application of precedent leans against that conclusion. But should judges reject all iterations of such an order, applying the same anti-Publian presumption of unconstitutionality to each succeeding version? Or, if the courts force the administration to narrow the scope of the order, to offer more plausible justifications for it (by ordinary legal standards), and to engage in inter-agency consultation and other sound practices, does there come a point at which the order should be treated as ordinary (if awful) policy, and subjected to usual standard of review that would apply in the case of ordinary (if awful) actions by a more “Publian” president?
This question deserves more attention than it has received. It matters greatly—both to law and judges, and to politics—whether the goal of resistance to Trump is total resistance, or simply ensuring that his administration is not tyrannical, arbitrary, or chaotic. Levinson and Graber argue that there is an important distinction between “bad” presidents and anti-Publian ones. If our general assumption is that constitutional law and politics make “merely” bad policies a matter for political debate, then our choice of goal matters for both healthy politics and the legitimacy of the legal and judicial #Resistance.
Unfortunately, we have already traveled far down the road of viewing all political adversaries as political enemies. Certainly neither Trump himself nor some of the understandable reactions to him have helped us retreat from this path. If this question has received too little attention, it may be because legal academics are subject to the same tendencies. Whatever the reason, a resistance needs a clear goal and stopping point. It should be able to distinguish between fighting ordinary bad policies by ordinary means, and using extraordinary measures to counter extraordinary “breakdowns” in political and constitutional norms. Similarly, an argument for extraordinary legal responses to anti-Publian presidents demands a clear goal for courts. Rendering an anti-Publian president more Publian seems like an appropriate goal, and suggests that when judges succeed in doing so, they should revert to more ordinary forms of judicial review. There is room for disagreement about this. But discussion is essential.
An interesting side note concerns Levinson and Graber’s account of Brown, New York Times v. Sullivan, and other cases. They are hardly the first to argue that race, racism, and the intertwined public-private nature of white supremacy exerted a “gravitational pull” on the Warren Court’s constitutional rulings. If anything, that observation is commonplace for all but the most case-fixated legal doctrinalists. But it does complicate recent descriptions of that era as having instituted a “deep and abiding constitutional settlement[ ],” of a general and generally applicable nature, “favoring inclusion, equal opportunity, and equal respect for all,” and recent efforts to apply that “settlement” confidently to a broad set of cases not involving race. On this view, anything that might interfere with this “settlement” must be rejected, and can be rejected confidently and easily. From this perspective, cases like the wedding cake case, Masterpiece Cakeshop, are “easy.”
Perhaps this case is easy. Or perhaps, even if “race is different,” we can see LGBTQ and other rights as involving the same interdependent public-private collaboration in a set of legal and social evils. At a minimum, however, Levinson and Graber’s depiction of the Warren Court as having departed from conventional legal doctrine in order to cure an extraordinary failure of ordinary political norms and institutions raises a number of questions. What was the precise nature and scope of any constitutional “settlement” reached by the Warren Court? Having addressed the extraordinary public-private nature of racism, did the Court mean to create a new generally applicable approach, or did it see itself as addressing a unique historical problem? Is the alleged departure from the presumption that “background conditions are functioning smoothly” strong and clear enough in current cases to justify the same departure from ordinary principles protecting, say, free speech and association? How broadly should we apply “anti-Publian” precedents—some of which, as Levinson and Graber note, were clearly improvised and far from fully reasoned—in cases that are less clearly anti-Publian?
I do not mean to make too much of this side note. Nor am I arguing for a particular result in Masterpiece Cakeshop, other than it be taken seriously and not dismissed as the easy application of a clear “settlement.” Nevertheless, in treating the Warren Court’s race decisions as an example of the Court “altering rules of normal practice to account for constitutional breakdowns” and not as an easy application of “sound doctrinal principles” by “neutral magistrates,” Levinson and Graber raise more important questions. If they’re right that reactions to anti-Publian measures constitute an extraordinary departure from background legal norms and assumptions, one that is justified by extraordinary and unusually dangerous circumstances, then that argument has power precisely because it does not threaten to overwhelm or replace the ordinary legal system. And if they’re right that the Warren Court’s race jurisprudence was extraordinary, because the system it addressed was deeply entrenched, unconventional, and impossible to dislodge, then we should hesitate to apply it too broadly. If, on the other hand, those cases were just a matter of the Warren Court applying ordinary law ordinarily, then the argument in support of the legitimacy of an anti-Publian judicial approach is weakened considerably. These questions demand serious consideration.
These questions are not intended as fatal criticisms of Levinson and Graber’s fine article. They offer a bold approach to a bad situation. And they are candid as well as bold. They model a willingness to speak in terms that decidedly will not be attractive to judges who want to fly under the radar, or to advocates who simultaneously want to engage in #Resistance and make it look like ordinary law. In arguing for extraordinary legal and judicial responses to the “anti-Publian” Trump regime, they show that a willingness to acknowledge the serious questions such an approach raises. Good for them.
Cite as: Paul Horwitz, #Resistance, with Candor
(May 16, 2018) (reviewing Sanford Levinson & Mark A. Graber, The Constitutional Powers of Anti-Publian Presidents: Constitutional Interpretation in a Broken Constitutional Order
, 21 Chapman L. Rev.
133 (2018)), https://conlaw.jotwell.com/resistance-with-candor/