Yearly Archives: 2011
Dec 5, 2011 Adrian Vermeule
In the large and ever-growing category of articles I wish I’d written, the latest entry is Rick Pildes’s withering critique of a standard line about the Supreme Court. The standard line holds – roughly speaking, and its imprecision is one of the article’s main points – that the Court “cannot and does not stray too far from ‘majoritarian views’ …. If the Court does, larger political forces bring the Court back into line; the Justices, knowing this, do not wander far.” (p. 105). In the context of the Court’s recent Citizens United decision, Pildes exposes the ambiguity and fragility of this view.
Pildes traces the thesis of a majoritarian Court back as far as a book by Dean Alfange in 1937, although the same claims were clearly articulated by James Bryce in his neglected classic The American Commonwealth, first published in 1889. Whatever its origins, the thesis is usually associated with Robert Dahl’s classic 1957 article, which Pildes contrasts with the nearly contemporaneous identification of the “countermajoritarian difficulty” in Alexander Bickel’s 1962 book on the Court. Pildes argues that later commentators have taken the Dahl article and run too far with it, overreacting against a romanticized image of the Court as heroic guarantor of minority and individual rights. Thus Pildes offers a partial rehabilitation of Bickel as against, not Dahl himself, but rather Dahl’s successors.
The thesis of the majoritarian Court is really a complex of different theses, with different moving parts and different implications. In Pildes’s words, “[t]oday’s majoritarians are able to cast the Court as so powerfully constrained by ‘majoritarian pressures’ because they rely on constantly varying and slippery conceptions of ‘the majority’ that purportedly constrains the Court” (p.116). Among the possible “majoritarian” baselines are (1) current “mainstream public opinion,” as identified by aggregated national opinion polls; (2) a currently dominant political coalition in the nonjudicial branches; (3) a dominant political coalition at the time relevant Justices were appointed, which – because of the increasingly long average tenure of the Justices – will often differ from the coalition described by (2) above; (4) the presidential wing of the dominant party; (5) the “lawmaking elite”. (I have omitted citations to the theorists who have propounded one or another of these baselines, but Pildes’s article names names).
Part of the problem with these competing baselines is their very multiplicity. One or another of them is usually available to anyone who wishes to claim that the latest apparently countermajoritarian decision is really majoritarian, if only we understood the true state of politics. The consequence is that while particular majoritarian theses may be falsifiable, a general commitment to a majoritarian view of the Court is not, because it can skip happily among various ways of specifying the argument.
Furthermore, Pildes identifies a fallacy of aggregation that sometimes underpins majoritarian arguments. It may be true that any sufficiently large set of the Court’s decisions, taken as a whole, will be largely majoritarian, somehow defined. But the property that characterizes the group need not characterize its parts or members, so it does not follow that each decision within the set will be majoritarian, taken one by one; the latter claim commits what logicians call a fallacy of division. In economic terms, there is a difference between the short run elasticity and the long run elasticity of constitutional law. In the long run, political institutions – including the Court – will supply the law that a critical mass of people want, so constitutional rules will be long-run elastic. In the short run, however, constitutional law may be importantly countermajoritarian at any given time, because political adjustment of the law relies on mechanisms, like the appointments process, that take time to operate.
Indeed, as Pildes goes on to argue, it is plausible to think that the Court’s scope for countermajoritarian decisionmaking will increase in the future, given various background changes in American politics. The polarization of legislative parties and the increasing volatility in partisan control of the nonjudicial branches both tend to increase the “gridlock interval,” or the range within which the Court can decide what it wants because one party or the other will block efforts to overturn its decision. The same phenomena make it difficult for either party to muster a sustained strong of appointments that would reshape the Court’s behavior. The increasing tenure of the Justices creates an ever-widening gap between the preferences of the appointing coalition and the preferences of current national majorities. And there is a large gap between the Court’s diffuse or ambient support in public opinion and the public’s dim view of other institutions, especially Congress.
If the majoritarians have overreacted to Court romantics, Pildes offers balanced judgment and clearminded assessment of different majoritarian theses and mechanisms; he is careful to avoid overreacting in the other direction. Viewed over decades or generations, the Court will not get too far out of line with what enough people want. But that is a thin claim of dubious utility. The long run may be getting longer, as structural trends in politics clog or slow the mechanisms of political correction and thus give the Court increasing autonomy. In any event political life is a succession of short runs lived here and now; Keynes’s dictum about the 100 per cent rate of long-run mortality holds for constitutional law as well as for economics. The eventual elasticity of constitutional law offers cold comfort to anyone concerned with countermajoritarian judging.
Nov 7, 2011 Paul Horwitz
Ashutosh Avinash Bhagwat,
Details: Specific Facts and the First Amendment (2011), available at
SSRN.
Imagine two speech scenarios. In the first, a noted scientist publishes a paper offering specific, detailed, and accurate empirical evidence concerning the genetic structure of a rare and fatal disease. Few people suffer from the disease, and even fewer will understand the paper, but it represents a great leap forward in understanding the underlying nature of the disease. The paper does, however, include patient information that is supposed to be confidential under federal privacy laws. In the second, a newspaper published a letter to the editor by a local crank charging that the climate change movement is a worldwide conspiracy in which scientists are deliberately lying to the public. The letter is a poorly supported rant. Which speech deserves greater protection under the First Amendment?
Although he would offer some protection to both, Ashutosh Bhagwat argues, in a new working paper, Details: Specific Facts and the First Amendment, that the second speech—the false, unhelpful work of what Holmes would have called a “poor and puny anonymity”—deserves more protection than the paper that may revolutionize understanding and treatment of a variety of genetically based disorders, a Nobel Prize in waiting. His answer is not outrageous, and some may find it unsurprising. But even recognizing that the question exists is important.
Bhagwat is riding at the crest of a wave. The status of facts under free speech law is of increasing interst to various leading First Amendment scholars. They include Frederick Schauer, whose paper Facts and the First Amendment I reviewed here some time ago; Eugene Volokh, who has written on similar issues in his article Crime-Facilitating Speech, 57 Stan. L. Rev. 1095 (2005); Robert Post, who in a forthcoming book discusses the place of knowledge-generation within First Amendment law; and Mark Tushnet, whose recent paper on the Stolen Valor Act discusses “the constitutionality of regulating false statements of fact.” Bhagwat’s paper, with its focus on true rather than false statements, makes a valuable contribution to this emerging literature. But its value lies in its very existence as well as its substance. When this many leading scholars zero in on an issue, that is good evidence of a problem of some kind.
Part of the problem in this area lies with the kinds of sweeping generalities that often festoon First Amendment opinions. A classic example is Justice Holmes’s statement that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Another is the Court’s statement, in Gertz v. Welch, that “under the First Amendment, there is no such thing as a false idea.” Still other generalities are not mere rhetoric, but powerful doctrinal rules. Thus, the central rule of modern First Amendment doctrine is that government may not regulate speech on the basis of its content; and an increasingly important area of First Amendment law is government speech doctrine, whose exclusion of government speech from the strictures of the First Amendment has taken on a vast scope in recent years. These tropes and rules are grounded in sound intuitions. But in leveling so much speech, they leave profound complications concerning the value and nature of factually detailed speech unaddressed. Bhagwat’s paper represents an effort to bring First Amendment law back to reality.
Bhagwat helpfully lays out several areas in which factually detailed speech may raise First Amendment concerns: 1) the public disclosure of personal details, such as newspapers’ publication of the identity of sexual assault victims; 2) the publication of “detailed instructions for criminal or dangerous behavior,” such as a manual on committing and concealing murders that is later used as a how-to guide by a killer; 3) the publication of scientific and technical details, such as a computer code that enables one to circumvent the encryption of DVDs and make them available for unlicensed copying; and 4) the publication of military and diplomatic secrets, as in the Pentagon Papers or Wikileaks cases. In all these cases, Bhagwat writes, “the fundamental problem posed is whether factual speech, containing very specific details . . . , is fundamentally different for First Amendment purposes from more abstract literary, artistic, or political/ideological speech.”
Bhagwat argues that to answer this, we need to know what key First Amendment value we are seeking to advance. His answer, like that of Robert Post, James Weinstein, and others, is that “the primary . . . function of the Free Speech Clause of the First Amendment is to facilitate political dialogue, and more generally, to enable the process of democratic self-governance in the United States.” The value of factually detailed speech must be determined in light of how, and how much, it contributes to public discourse.
That value will vary depending on the information involved. For example, “speech concerning scientific and technical details will often play a central role in democratic discourse.” So may some military or diplomatic secrets. On the other hand, “personal details and instructions for criminal or dangerous behavior . . . seem to have far less to do with the political sphere.” They may matter in particular contexts, but on the whole, the relationship of such specific details “to any form of self-governance is tangential at best, and even where the relationship exists, it is often less direct than with respect to pure ideas”—no matter how idiotic the idea.
The need to consider the context of specific speech involving factual details is ultimately unavoidable, Bhagwat argues. But it can proceed on a sounder footing than we have today. Under current law, “the same doctrinal rules that apply to regulations of ideas apply to the regulation of details.” That makes for an awkward fit, because “laws seeking to directly suppress details will almost always be content-based,” given that they will single out precisely the details that need to be suppressed, and will thus face a heavy burden. But, as is often the case in First Amendment law, “when faced with such regulations, courts have tended to twist or even ignore that doctrine” in order to respond to the particular exigencies of a case.
Bhagwat argues that reform must start by recognizing that “not all details are created equal. Some factual speech is central to the process of self-government, and so deserving of the highest constitutional solicitude, while other such speech is far more peripheral.” In each case, the court must begin by considering a mix of factors, such as “whether the speech was a part of public discourse, and the extent of the public interest in that speech.” Factual details that lie within the core of public discourse should be vigorously protected. “Factual details outside that core,” on the other hand, should undergo intermediate scrutiny. That test, which is designed to “analyze regulations of speech which has some substantial value, but which clearly falls outside the core of the First Amendment’s protections,” will allow courts to weigh the value particular factual details for public discourse against their potential harms. And it will be more forgiving than the test used for some forms of opinion or advocacy, such as speech urging the violent unlawful overthrow of the government, because it will not insist that the speech be highly likely to cause imminent harm.
As with most First Amendment reform pieces, the value of Bhagwat’s piece lies less in the outcomes it recommends—judges do a reasonably sensible job already, and the changes he would like to see aren’t that dramatic—than in its capacity to better explain our intuitions, enhance judicial transparency, and offer guidance in future cases. Even so, I have some bones to pick with it. Bhagwat’s focus on particular kinds of restrictions on factually detailed speech gives us something more than the trees but something less than the whole forest. In particular, he neglects three questions that may yield less of an immediate doctrinal payoff, but have a greater relationship to the doctrinal and epistemological difficulties that seem to plague the courts in this realm. First is the question of institutional allocation: the key issue with respect to factually detailed speech may not be how much of it should be regulated, but who regulates it. Second, Bhagwat’s suggestion that much factually detailed speech is less valuable to public discourse and self-governance than pure opinion speech is questionable. Opinions may constitute the surface of public discourse, but they rest on a foundation of facts. Opinions are plentiful and cheap; good facts are hard to come by. As important as the question of how much we should protect factually detailed speech, then, may be the question of how we protect the generation of factually detailed speech. Finally, and on a related point, it is worth asking how we can encourage the production of facts, and how Bhagwat’s approach contributes to the maintenance of sound incentives to produce facts.
What these questions have in common is that they suggest the need to make room in the First Amendment for certain kinds of institutions and institutional practices, despite First Amendment law’s apparent hostility toward ontent discrimination. The courts may like to say that there is no such thing as a false idea, but universities—including public universities—could not survive without the ability to conclude that some thinkers are shoddy and their ideas lousy. In the long run, the facts generated by this disciplinary process can be far more important to public discourse than any single letter to the editor written by a local crank; if we don’t tend to their development and protection, democracy will become idiocracy. The best way to do so may be to recognize the role played in public discourse and the First Amendment by specialized institutions. Although First Amendment law does a good deal along these lines in practice, it has little to say about it in theory. Given his focus on the government as censor, neither does Bhagwat. Over the long haul, however, these questions may be both more important than the question what to do with a hit man’s manual, and more deeply connected to the problems that confront current First Amendment theory and doctrine.
That said, simply by putting the spotlight on the issue of factually detailed speech, Bhagwat has rendered a great service. Although his focus on the government’s censorial role may leave a good deal of terrain to be explored, he deals clearly and well with the issues within the scope of his paper. This is a leading contribution to the emerging literature dealing with the epistemological crisis of the First Amendment.
Oct 3, 2011 Vicki Jackson
David Strauss has written an elegant and compelling book, the distillation of his work on constitutional interpretation over the last decade or more. His argument is at once positive and normative. Strauss argues that most U.S. constitutional interpretation – and some of the most important and foundational of the Supreme Court’s constitutional decisions – can only be understood as a form of common law adjudication, developed over time based on practice and precedent far more than on constitutional text. As a normative matter, Strauss argues that living constitutionalism, developed and constrained through the methods of common law adjudication, is a superior approach to interpreting the Constitution than is originalism. Those not familiar with Strauss’ work should read the book; those who are will still enjoy the concision and insight with which his prior articles have been distilled.
The first two chapters include his attack on originalism and his defense of the virtues of common law constitutional adjudication. The attack on originalism synthesizes critiques of the impossibility, and undesirability, of the kind of “constraint” imposed by originalism’s commitment to interpreting in light of specific original understandings, including the difficulty of reconstruction, the challenges of “translation” and the democratic challenge of giving controlling force to the original understandings of an instrument intended for present governance. Moderate originalism, he argues, in its appeal to general principles diminishes the key feature of constraint that originalism’s proponents emphasize.
For Strauss, “common law” approaches to constitutional interpretation is the best alternative to originalism—it represents the dominant mode of interpretation and has several virtues as an interpretive approach. On the positive claim, Strauss is clearly correct in drawing attention to the importance of common law analysis of judicial precedents in resolving U.S. constitutional cases; a comparative lens further supports this conclusion. (See my piece with Jamal Greene in the Ginsburg-Dixon collection.)
Strauss’ normative arguments begin from a jurisprudential view of law’s authority deriving, not from a positive command, but from its “evolutionary origin and its general acceptability to successive generations.” (37-38). Its benefits include an epistemological humility, drawing from the wisdom of the past while permitting change, and a pragmatic concern with workability, an ability to adjust as experience warrants. These benefits of the evolutionary common law approach bear a certain relationship to a conception of “law as enquiry,” see H. Patrick Glenn, Persuasive Authority, 32 McGill L J 261, 288 (1987), an approach that is arguably more candid (44-45) and thus more accountable within both juridical and lay communities.
Strauss’ conception of the common law is one that places at least as much weight on its dynamic capacity for change as on its stability over time; it is no answer to an objection to a rule of law that it has always been done thus; some more encrusted versions of the common law might disagree. Contrary to its critics, Strauss argues, common law constitutional adjudication is not unconstrained. A core analogy he draws is to the early 20th century development of tort claims against manufacturers of mass products. Commenting on a case involving a claim for injuries caused by a defective car, Strauss shows how the privity requirement was subjected to very narrow exceptions, which then grew, and ultimately came to be abandoned, and how the courts then had to decide on the standard for manufacturer liability. (39-40). Instead of seeing this as an unconstrained choice, Strauss argues that the precedents in fact foreclosed a wide range of options. (39).
Strauss illustrate the pervasiveness, and benefits, of common law approaches to constitutional decision making in two major areas, First Amendment and equality law. His account shows the marked changes, for example, from Schenk v. United States (1919) to Brandenberg v. Ohio (1969). Strauss reminds readers that original understandings, or strong strands among them, would have permitted laws prohibiting blasphemy, or civil actions for defamation without special defenses for comments on public officials, and might even have permitted prosecutions (but not injunctions) for speech critical of the government. Modern First Amendment law, which rejects all of these possibilities, arose in the 20th century, spurred by arguments made by Holmes and Brandeis about the purpose of free speech in democracy, and reinforced by abatement of the period of panic and fear about dissident speech characteristic of the World War I period. (62-73).
In his chapter on equality law, Strauss argues that, just as the common law eventually rejected the distinction between inherently dangerous items and items in ordinary use (which had been important to defining exceptions to the privity requirement) as no longer workable, as changing society created a situation in which goods were often both dangerous and common, prior to Brown the workability of the “separate but equal” idea had been systematically placed in doubt by prior decisions finding fault with various separate but equal approaches. The course of decisions, nominally operating under the Plessy regime, had revealed flaws in its premises, or its unworkability. So that the ground had been prepared by the common law method for the decision in Brown.
The final element in Strauss’ analysis is the diminished role of constitutional text. Amendments, Strauss argues, are seldom of the same importance as interpretation in our constitutional evolution; indeed, amendments often simply ratify changes that have already occurred or, if not sustained by popular support, are largely evaded. Yet the text does play a role, as “common ground,” defining with specificity some rules where clarity is important (such as when elections occur) and even, with respect to larger issues, by providing a framework for debate (e.g., what does “equal protection” mean).
The book implicitly raises a number of questions; I note only a few here. First, how to determine what, if anything, is settled. Strauss claims that affirmative action has shown over time its workability, and implies that it has become generally accepted. (41-42). Yet the Court upheld an individually tailored affirmative action scheme by only a narrow (and highly contested) 5-4 vote in Grutter v. Bollinger (2003); is it really so well accepted? More generally, determining degrees of settlement under Strauss’ account is difficult: he suggests that Roe v. Wade is a less settled point than is Brown (96-97), but it is unclear whether he sees Roe as more or less settled than the constitutionality of affirmative action. On his account, it would seem, a case that may seem foundational at any given time may become less so as society evolves.
Second, although in the context of U.S. debates over originalism it makes sense to look at the “living constitution” as “one that evolves, changes over time, and adapts to new circumstances, without being formally amended” (p. 1), from a broader perspective, one might think of a “living constitution” as one that evolves and changes over time, both through changed interpretations and practices, and through formal amendments. That is, one may establish the legitimacy of other sources of change without insisting on the unimportance of constitutional amendment. Strauss uses the failed history of the ERA to illustrate his claim that amendments are not important for constitutional development. After all, even though the ERA was not ratified, the Court extended fairly rigorous review of gender based classification. True, it has, but in the last ten years explicit gender classifications in citizenship laws have been upheld by the Court’s actions, based on a more relaxed form of intermediate scrutiny. See Nguyen v. INS (2001); Flores-Villar v. INS (2011) (affirming, by an equally divided court, a lower court judgment upholding a gender discrimination in citizenship laws, relying on Nguyen). The Court was closely divided on the application of intermediate scrutiny; had the ERA been passed it might well have been taken to crystallize a firmer dedication to the abolition of gender as a legitimate legal classification.
The very process of adopting an amendment may help create the kind of overwhelming national consensus on which judicial enforcement over the long run may rest. Thus, as Strauss explains, by the time amendments are ratified they are confirmatory of change that has already occurred. (116). All this seems true; but is it possible that the very process of seeking amendment may help galvanize national, as opposed to state by state, efforts at change? Even if so, this would not show that it was the amendment itself that caused the change; but how civil society organizes to promote change, in light of the procedures of Article V and any channeling effects on political organization they have, may be an important factor.
Third, are amendments really different from “precedents” in their constraining force? That amendments without lasting social support are undermined or evaded may not distinguish them from other sources of legal change, including judicial decisions and statutes. The Court’s school prayer decisions have reportedly been subject to repeated resistance; Brown plainly was for a period; and the Court’s criminal procedure rules on searches and interrogations have been widely evaded as well. (On structural issues, consider the evasion of the ruling in INS v. Chadha (1983); see Louis Fisher, The Legislative Veto: Invalidated, it Survives, 56 Law & Contemp. Probs. 273 (1993)). True, to the extent an amendment is recognized as having a core content, stare decisis is not available to allow judicial overruling; this may or may not be an advantage of amendments—for Strauss, it is a disadvantage, but for proponents of whatever change is represented by a new amendment it would be an advantage.
Relatedly, to the extent that precedents are experienced as constraining one might ask further whether it is the precedents that are doing the constraining or rather the sense, by lawyers and judges operating in the U.S. legal community—of the reasonable, the possible? Of course, if this sense of what is reasonable, or plausible, is itself constructed by existing legal materials as well as by events—in politics, in society—external to the law, it becomes quite complex to differentiate the constraints of legal precedent, as experienced internally, from other influences. Yet the same could be said, as well, of the amendments.
A more difficult question is whether there is any normative basis for deciding when, if ever, constitutional change must be sought by way of amendment and when the broader array of tools is available. The answer lies, I think, somewhere in considerations of the rule of law and democracy, in ways that relate as well to the concern for specificity that Strauss identifies as bearing on interpretive latitude. (112-13). When a specific command of the Constitution—for example, that each state must have two senators—is at issue, overturning this by construction poses real threats to the rule of law. Is it impossible? No. By the same reasoning that the holding in Brown was applied, in Bollinger, to the federal government, it would be possible to reason that as, over time the Constitution has come to rest more fully on the principle of popular democracy (as evidenced by the various franchise-expanding amendments), the Fourteenth Amendment itself should now be understood to require apportionment of the Senate by population. What makes this argument implausible (or, in Strauss’ words, “unthinkable” (103-04)), and inconsistent with both the “rule of law” and with his conception of the Constitution as “common ground,” is the clarity of the text, not only as to the two senators rule but as to the super-entrenchment of that rule in the Constitution.
So, one can agree that the constitution is “living” and can be interpreted in light of changed understandings without necessarily agreeing that all forms of constitutional change can legitimately be made by amendment. And one can believe in the legitimacy of interpretive change by the court without necessarily agreeing that litigation, or legislation, are the preferred alternative to constitutional amendment. Amendments remain a legitimate method of constitutional change; they are of less importance than precedent because they are harder to deploy, not because they are more likely to be ignored; and they offer a uniquely democratic and iterative process for deliberative decision making.
Finally, a question about metaphors. Although “living constitution” has some provenance in the United States, see Howard McBain, The Living Constitution (1927), I want to suggest that a better metaphor would characterize the type of “organism” to which Justice Holmes referred in his opinion for the Court in Missouri v. Holland (1920), as a rooted rather than a free-floating form of life. In Canada, the term for what was created by Canada’s constituent act is the “living tree,” derived from an opinion by Lord Sankey, written in 1929, interpreting the 1867 constitutional act to include “women” in its textual word “person” so as to permit a woman to serve as a Canadian Senator (even though in 1867 the constitutional act would not have been so understood due to common law limitations on women’s capacities). As I have argued elsewhere, the “living tree” metaphor recognizes both the growth and uncertainty, and the rootedness, of a national constitution in its particular text and context. A “living constitution” conjures an organism, living like humans, and able to move around the entire world should it so desire. A “living tree,” by contrast, captures the rooted nature of this kind of living law; it is difficult, indeed, completely to escape the past, to uproot the constitution and its text from the soil in which it was first planted.
Those familiar with the Canadian “living tree” doctrine will be struck by the cover art of Strauss’ book, which evokes a tree, though whether living or dead is something of a question. A brown trunk emerges from the lower part of the book, seemingly growing out of the words in the text of the Constitution. The main part of the trunk then bends sharply to the right, at close to a 90 degree angle; its branches spring out in all directions — left, right, downward and upward. None of the branches has any color but brown; no leaves are shown. But at the outer end of some of the branch limbs appear red, or blue, stars. What is this image supposed to suggest? Is it a picture of a dead tree, suggesting what can happen to a deeply entrenched constitutional text if it is interpreted in an originalist manner? Or is it a picture of a living tree, reaching for the stars of the nation’s commitments? Perhaps the ambiguity of the cover art could be seen as reinforcing one of Strauss’ arguments, about the necessity—and importance—of interpretation over time, in understanding, and in maintaining, the organic quality of our Constitution. This review cannot do full justice to the arguments in this wonderful and accessible book—I hope you will read it.
Jul 25, 2011 Charles Shanor
William W. Van Alstyne,
Clashing Visions of a “Living” Constitution,
CATO Supreme Court Review 2011 (Forthcoming Sept. 2011), available at
SSRN.
Can a constitution “live”? Is the alternative to a “living” constitution reinterpreted and modernized by judges a “dead” constitution hopelessly out of touch with modern realities? William Van Alstyne, in Clashing Visions of a “Living” Constitution critiques (nay, mocks) several schools of living constitutionalism and sets out what he believes is the one true path to a living constitution. This essay is lively, insightful, irreverent and makes an important, if not wholly novel, set of points. It reminds me anew why I have recommended Van Alstyne’s “critical guides” to Marbury and McCardle to Constitutional Law students for years.
The essay (originally a lecture) opens with musings on confirmation hearings for Supreme Court justices and the proper scope of judicial constitutional review. Acknowledging that there are many schools of constitutional interpretation, Van Alstyne looks at various schools associated with the notion that the United States Constitution is a “living” constitution. He examines non-interpretivists’ (non-original interpretivists’s? ) efforts to “free us from the despair of textual uncertainty” and “the tyranny of-and-the-futility-of endlessly-contestable history.”
Van Alstyne focuses particular scorn on one non-interpretivist, Bruce Ackerman, who famously elucidated a de facto constitutional amendment outside the process provided in Article V. Noting that various amendments to the U.S. Constitution as originally understood could not support the interpretations given them by the Supreme Court, Ackerman (in Van Alstyne’s prose):
at once went on, forcefully, to declare that the Court’s decisions could nonetheless be rightly seen as actually resting on solid and secure foundations, namely, foundations of “nontextual amendments” or, to give credit (where such credit is surely due!), to what one may—in my own view—call “Ackerman” amendments, and, accordingly, all those who enlist in this school of constitutional jurisprudence are perhaps best described either as “Ackerlytes” or even, perhaps, as “Ackolytes” (but surely not so churlishly, perhaps, as mere “Ackermaniacs”)…. [Changes brought about through the appointment process by a President who was thereafter reelected] serve as “real amendments.” And so, accordingly, it would be inappropriate for any later Supreme Court to go back [on such amendments] … [T]his is the way—or at least one equally valid way—in which you keep the Constitution “alive.”
What rapier-like prose! Could Pope have done better? But, lest I digress, we should return to the basic argument.
Constitutionalists, says Van Alstyne, fall into two basic camps: “obligationists” and “opportunists.” Discussing the lively but well-worn example of Hugo Black, Van Alstyne says the former read (and re-read!) the Constitution’s text. Obligationist judges take seriously the Article VI oath to “support and defend this Constitution, not some other.” Though they may differ on interpretations of a constitutional phrase, they are committed to a non-living interpretive task, the living constitution left by them with the people through the Article V amendment process. Opportunists, conversely, whether from the right or the left, interpret “suitably adaptable clauses” expansively, ignoring clauses not aligned to their desires.
Using the metaphor of visible cambian rings that record a tree’s growth, Van Alstyne says amendments to the US Constitution register changes in society. A healthy society should display these changes in formal amendments, not through sleight-of-hand and scarcely visible reinterpretations by unelected judges (whether or not their appointing presidents are reelected). Is our society healthy? Not by this measure, for an absence of cambian rings signals petrification. Today, he hypothesizes, there is a “negative synergy” for new textual amendments because the public is unwilling to entrust new constitutional texts to opportunist judges who might expand upon the meaning of any such public commitment.
The failed Equal Rights Amendment, which provided an opportunity for one such authentic constitutional cambian ring, is illustrative. Opponents, with some justification, argued that this amendment, expansively interpreted in ways wholly unintended, might remake cultural norms (including dress differences), weaken military muscle, and undermine institutions like the family, motherhood, and marriage. By contrast, argues Van Alstyne, the 19th Amendment, which “gave” women the right to vote, was a reflection that women had already been voting in a majority of the states at the time of the amendment. The “stealth” 27th Amendment, ratified from 1789 to 1992 by far more dead than living Americans, is hardly a ring, but at least it is “of no particular harm.”
Providing “an illustration central to the theme of this lecture in a contemporary setting,” Van Alstyne hypothesizes a federal statute that reduces jury size for federal court criminal cases to seven persons (from the current twelve). Functionalist supporters might say this reform would save costs or reduce the number of hung juries, perhaps helping to take criminals off the street. Functionalist opponents might say that the problem of costs to the criminal justice system comes from the proliferation of crimes, not the number of criminals, and that reduction of jury size violates the “personhood” of the defendant.
Were one to peruse the text of the 6th Amendment, one would find a “right to trial by jury” but no jury size specification. Does failure to specify mean any size goes? Would a speech by James Madison introducing the Bill of Rights in the first Congress that said “any size is fine” close the case (even though notes of the speech may not be accurate and others may have disagreed with Madison, either in Congress or in state ratification discussions)? Since there was no such speech, might one look to the Article III provision–“the trial of all crimes except in impeachment shall be by jury,” to the debates at the Constitutional Convention, and to the ratification debates to see if anything was said about jury size. In the Virginia ratification convention, it turns out, there was discussion of the point, and Madison (reportedly) said that “jury” meant “12” as a technical term going back to Blackstone. This interpretation, apparently, was acceptable to skeptics.
How does this relate to confirmation of judges, the point of departure for Van Alstyne’s essay? The point, he says (as forcefully as Ackerman pushes nontextual amendments), is that the people will be loathe to turn any new amendment over to judges for interpretation unless those judges are obligationists. If judges (and constitutional law scholars) take as their mission to fashion the world into their constitutions rather than this constitution, new cambian rings will not be forthcoming. Confirmation processes will remain political cat fights between opportunistic senators of the left and right, and Congress itself will continue to be lazy concerning its own constitutional constraints.
Having for several years taught a seminar on constitutional amendment, I second these observations, as well as this parting concern: “That during the decades of my own (misbegotten?) most active academic years, we may have so far gotten accustomed to the ‘exogenous’ Constitution that the amendment process has itself begun to recede down a rabbit hole … and the country may frankly be not really better—but significantly less—well off on that account.”
Interestingly, the Supreme Court, on the one occasion when it considered what it means to be “attached to the principles of the Constitution of the United States,” concluded (albeit with some dissent), that this did not mean attached to rights of contract, compensation for property taken, free speech, freedom of religion, bearing arms, (unlimited) other rights, states having all powers not (narrowly) delegated, equal protection, or due process. Rather, said the Justices in Schneiderman v. United States, it means attachment to the Article V process of authentic, difficult, super-majoritarian, and peaceful change. Now that’s a living constitution!
Jun 20, 2011 Ilya Somin
Robert Cooter and Neil Siegel’s Collective Action Federalism is probably the most important academic article on constitutional federalism in several years. Cooter is one of the world’s leading law and economics scholars. Unfortunately, his work has not gotten the attention it deserves from constitutional theorists. Siegel is a leading constitutional law scholar in his own right.
In Collective Action Federalism, Cooter and Siegel argue that the congressional powers enumerated in Article I, Section 8 of the Constitution should be interpreted in light of the goal of giving Congress the authority it needs to address collective action problems among the states. A collective action problem arises when members of a group want a good, but have little or no incentive to contribute to its production, because they can instead try to free ride on the efforts of others. This is likely to occur in cases where the good in question is a “public good” for the group in question, one for which there is no way to prevent group members from consuming it even if they have not contributed to its provision.
Cooter and Siegel point out that the framers of the Constitution justified many of the powers enumerated in Article I as solutions to collective action problems among the states (though of course they did not use that terminology). For example, the power to raise and support armies was intended to provide the public good of national defense, which states often failed to contribute to under the Articles of Confederation. Similarly, the power to regulate interstate commerce was intended to be used to prevent states from adopting protectionist trade barriers against each other or impeding the movement of goods across their borders. Interstate free trade is a public good.
The authors argue that Article I, Section 8 should be treated as a “unified whole” rather than as a discrete set of unconnected individual powers. And they propose collective action theory as a unifying framework for interpreting that whole. Where there is an interstate collective action problem, they would give Congress the power to address it. Where no such problem exists, state power should be allowed to prevail.
Cooter and Siegel’s approach would lead to broad interpretations of congressional power in some areas, and relatively narrow ones in others. Currently, the Supreme Court interprets the power to regulate interstate Commerce in a way that gives Congress nearly unlimited power to regulate “economic activity,” while restricting its authority over “noneconomic” matters. Cooter and Siegel correctly point out that some forms of economic activity do not raise any interstate collective action problems, while some types of noneconomic activity do. With respect to the General Welfare Clause, their theory would uphold taxes and regulations that address collective action problems, while rejecting those that do not. In effect, they interpret the phrase “general welfare” as a synonym for “solving interstate collective action problems.”
The greatest strength of Cooter and Siegel’s analysis is that it accounts for the interconnections between the various congressional powers and expresses their underlying unity. As they point out, this has advantages under both originalist and nonoriginalist theories of interpretation. From an originalist standpoint, collective action federalism dovetails with statements by the many Founders who argued that powers granted in Article I were intended to curb free-riding by state governments of the sort that had become a serious problem under the Articles of Confederation. For nonoriginalists, the theory has the virtue of taking account of modern economic analyses of federalism, most of which stress the key role of collective action problems.
Despite its impressive strengths, Cooter and Siegel’s analysis also has a few problems. It is far from clear that Article I really gives Congress unfettered authority to solve any and all collective action problems among the states. If that were the case, why would the Founders have bothered to carefully enumerate seventeen separate powers plus the Necessary and Proper Clause, instead of a single catch-all “Collective Action Clause?” To their credit, Cooter and Siegel foresaw this issue and tried to address it by arguing that the enumerated powers are not meant to be an exhaustive list, but an illustrative one. Yet it seems unlikely that a merely illustrative list would be so long and precisely detailed. Moreover, treating the list as illustrative renders the Necessary and Proper Clause superfluous. Under that approach, Congress would already have had the power to enact any measures “necessary” to solve any collective action problem, even if they were not specifically listed.
Second, Cooter and Siegel’s framework might actually negate certain specifically enumerated powers if it turns out that they are not needed to solve any collective action problems. Consider Congress’ power to “establish post offices.” It is now clear that private firms such as Federal Express can deliver the mail just as effectively as the federal government, if not more so. And they can easily exclude would-be free riders who try to get away with not paying for postage. Does that render the US Postal Service unconstitutional?
Most importantly, Cooter and Siegel do not consider the possibility that the Constitution should be interpreted to curtail federal government policies that create “public bads,” as well as facilitate those that provide public goods. Just as Congress can solve collective action problems, it can also create them. To take one common case, it can enact special interest legislation that benefits small, well-organized groups at the expense of the general public. The repeal of such laws then becomes a nationwide collective action problem, one that the public often fails to solve because individual citizens and states have strong incentives to free ride on such matters. Curtailing such interest group legislation is one possible rationale for interpreting Congress’ enumerated powers relatively narrowly. Obviously, state governments often enact harmful special interest legislation of their own. But only Congress can impose such a law on the entire nation at one fell swoop.
The famous 1942 case of Wickard v. Filburn illustrates this dilemma well. Wickard ruled that the interstate Commerce Clause authorized Congressional legislation that restricted wheat production even in cases where the wheat in question had never crossed state lines or been sold in any market. Cooter and Siegel endorse Wickard because the law in question solved a collective action problem among the states. Many state governments wanted to raise the price of wheat in order to assist farm interests. But none could do so individually, because of the risk that their efforts would be undercut by competition from other states.
At the same time, however, the law upheld in Wickard also created a severe collective action problem. By artificially raising the price of food in the midst of the Great Depression, it increased the suffering of consumers, particularly the poor — many of whom already found it difficult to purchase adequate amounts of food. Because consumers faced severe collective action costs and in many cases did not even realize that the new law had harmed them (voter knowledge of the effects of federal policy is itself a nationwide public good), they were not able to mobilize against it effectively. Wheat production restrictions that were a public good for farm states turned out to be a public bad for consumers and also for nonagricultural states whose economies were damaged by the price increases.
Cooter and Siegel rightly argue that “[a] federal constitution ideally gives the central and state governments the power to do what each does best.” But a federal constitution must also protect against the dangers posed by both state and federal power. A powerful central government is often “best” at solving national collective action problems. But it is also often the “best” at creating them. State governments acting on their own could never have established a nationwide wheat cartel that victimized poor consumers for the benefit of politically powerful farm interests. A more comprehensive collective action approach to constitutional federalism must consider both sides of this dilemma.
Despite these reservations, Cooter and Siegel’s work is a major contribution to the debate over federalism, and helps set the agenda for future scholarship. It is hardly fair to ask any one article to do more. Future writers will need to more fully consider the extent to which collective action theory sheds light on the appropriate scope of specific federal powers. They should also take due account of the danger posed by federally mandated “public bads.”
