Yearly Archives: 2011

The Constitution’s Pocket Part

Mar 28, 2011 Paul HorwitzAdd a Comment

At the AALS conference this year, I was stung by a criticism a friend launched at Jotwell.  Our mission, of course, is to bring the attention of busy readers to articles that the editors think are well worth the time.  Well and good—but, this critic observed, most Jotwell reviewers pick articles they not only like, but agree with.  They amount to statements that an article is good because it agrees with the reviewer’s own priors.

This is a natural human tendency, of course, but it’s still an apt criticism.  A journal devoted to “Things We Like (Lots)” will be more interesting if the “Thing We Like” turns out to be something other than “Myself.”  Suitably chastened, I have found my work for Jotwell significantly hampered.  I would hate to be accused of writing these reviews as a form of amour propre.  Vast numbers of articles that I have enjoyed in recent weeks have been rejected as review subjects because they have the unfortunate tendency to conform to my own (utterly sound) views on constitutional law.  I have been searching for just the right piece: one that is enjoyable, interesting, and wrong.  Thankfully, Michael Stokes Paulsen has come to my rescue.

Paulsen’s short and biting piece, Our Perfect, Perfect Constitution, is a model of its genre: constitutional scholarship as satire.  (It is quite possible that most constitutional scholarship falls into this genre, although usually unwittingly.)  Paulsen writes that he, like most constitutional scholars, has fallen into “a peculiar and aggressive strain of Stockholm Syndrome.”  (P. 1.)  After decades of criticizing the work of the courts, he writes, “I have, finally, succumbed.  I now believe that everything in the U.S. Constitution is perfect.  More than that, I have come around to the understanding that every Supreme Court interpretation of the Constitution is perfect as well.”  (P. 1.)  His job, then, is not to rewrite the Constitution as such, but to “update” it “to reflect, perfectly, the Supreme Court’s perfect interpretations of it.”  (P. 1.)  And so he does, in what he labels a “pocket part” that includes “not only what the Constitution says but also what it really means” according to the Supreme Court. (P. 1.)

Paulsen’s conforming amendments are generally well-chosen and amusing, if a little sour.  Here are some examples.  He writes: “Article I, Section 1, Clause 1 is amended to delete the words ‘herein granted.’  It shall hereafter read: “All legislative powers shall be vested in a Congress of the United States.”  (P. 2.)  He adds: “The Tenth Article of Amendment to this Constitution is repealed.”  (P. 2.)  And: “The doctrine of stare decisis being fundamental to the rule of law, to public perceptions of the integrity of the Supreme Court, and to stability, predictability and reliability, [the] Supreme Court shall always adhere to its prior constitutional decisions, except when it decides not to do so.”  (P. 5.)  He clarifies the Free Exercise Clause: “Government may destroy Native American traditional religious holy sites in America, without thereby burdening the free exercise of site-specific Native American religious observance, because we stole their land fair and square.”  (P. 7.)  And the Establishment Clause: “This Constitution shall be construed to forbid the display on government property of Christmas nativity scene displays depicting the birth of Jesus, unless the display includes elves and a talking wishing well.”  (P. 8.)

Constitutional scholars and law students alike will recognize these and other examples, which of course are not so much a list of amendments as a bill of particulars.  Like many constitutional law teachers, I devote at least one class early in the semester to a detailed examination of the text of the Constitution; and like most of my colleagues, I tell my students that this will be virtually the last time we devote much attention to the text, as opposed to the centuries of glosses the Supreme Court has put on the text.  Paulsen’s short article is a lovely illustration of this phenomenon.  It would be excellent assigned reading at the end of the semester, to remind students (and professors) of just how much of their time has been devoted to the Supreme Court Reports, and how little to the constitutional text itself.  The pungency with which Paulsen’s satire offers this reminder is ample reason to recommend it.

That’s not to say I agree with it.  In demonstrating how little the Constitution, as we understand it today, has to do with what he apparently sees as its barer and simpler meaning, Paulsen evidently means to suggest to readers that the only question left is whether to laugh or cry.  I don’t see why either is required.  One hardly need believe that either the Constitution or the Supreme Court’s glosses on it are perfect to think it unexceptional, even banal, that the document must be interpreted, and that those interpretations will involve a mix of history, tradition, policy, and politics.  Only a naïf would be shocked—shocked!—to learn that constitutional law, like war, is politics by other means.  The voice of the naïf—Paulsen’s voice, in this piece—is, of course, the voice of satire.  But satire is the beginning of wisdom, not its end.

And at times it is difficult to discern what lies beneath the satire.  If ours is neither a “perfect” nor a “perfect, perfect Constitution,” what does Paulsen think the proper interpretation of the text demands?  It is, as far as I can tell, sometimes textualist, sometimes originalist, sometimes policy-driven, and sometimes none of the above. Paulsen mocks the Supreme Court’s decision in Employment Division v. Smith for permitting laws penalizing the exercise of religion provided that “they are cast in facially neutral terms”—a criticism I share—but without demonstrating that the Free Exercise Clause means, or is meant to mean, something else.  He derides free speech jurisprudence for protecting flag burning while permitting the enjoining of protests outside abortion clinics, but doesn’t say which understanding is better as a matter of text or history.  He criticizes the Supreme Court’s Equal Protection Clause jurisprudence for not categorically banning race-based distinctions, but without any acknowledgment of the historical pedigree supporting ameliorative race-based distinctions.  He thinks the Court is wrong not to enforce broad semi-textual postulates like those of limited and enumerated congressional power and reserved state power, but equally wrong to enforce broad semi-textual postulates like “liberty.”  And he is selective in his examples.  A satire on constitutional interpretation that devotes hundreds of words to abortion and not one to the Eleventh Amendment is an oddly unbalanced one.

I am struck by one last irony.  The view implied in this satirical piece seems to be that the Supreme Court, with our complicity, has rendered our Constitution ridiculous by offering endless glosses intended to make it “perfect,” when we could have either remained loyal to the text or amended it by duly authorized means.  But Paulsen has written elsewhere that the Constitution ought to be interpreted according to a “meta-rule of construction,” vested in the Executive Branch with some judicial oversight, that is intended to preserve “the nation whose Constitution it is, for the sake of preserving constitutional government over the long haul, even at the expense of specific constitutional provisions.”  Michael Stokes Paulson, The Constitution of Necessity, 79 Notre Dame L. Rev. 1257, 1257-58 (2004). There “simply must,” he has written, “be power in the national government to preserve the constitutional order; it is inconceivable that the Framers would have neglected such considerations.”  Id. (Fans of The Princess Bride will doubtless remember what was said there about the word “inconceivable.”)  So it is apparently ridiculous to think our Constitution is perfect, except when it isn’t; ridiculous to think we couldn’t use Article V to improve the Constitution, except when we needn’t bother; and ridiculous to give one constitutional actor primary responsibility for seeing to the Constitution’s perfectability, unless that actor is the President.  Like most of us, Paulsen hates “perfect” constitutions—sometimes.

Don’t get me wrong: I do like this article.  I’m grateful to Paulsen for a witty, if bitter, reminder of just how much of a potential gulf there is between our Constitution and our constitutional law, and for the reminder that whatever else we might call this process, “perfect” is the wrong word.  I’m doubly grateful to him for helping Jotwell to stymie its critics.  It is possible to like an article while thinking it is wrong—lots.

A Private Law Insight into a Public Law Problem?

Feb 17, 2011 Heather GerkenAdd a Comment

For election law and statutory interpretation junkies, there’s a nifty student note in the Yale Law and Policy Review by Zachary Hudson on how to construe the products of direct democracy.  (In the interest of full disclosure, I should note that I played no role in supervising the paper).

As I teach my students in election law, judges always face a dilemma when trying to figure out what an initiative means.   Initiatives are often vaguely worded and lacking in detail.  And the usual tools courts deploy to deal with vague texts in the legislative context – like legislative reports – aren’t as helpful here.  Even when an initiative is accompanied by a handbook or the like, there’s no guarantee that the voters read it before they cast a ballot.  And judges are often reluctant to look to advertisements, media coverage, or surveys as evidence of the voters’ intent, as these inquiries seem pretty far afield from the usual assessments involved in judicial review.  Finally, we all know it’s hard to figure out Congress’ intent because Congress is “a they, not an it” (when you talk about “congressional intent,” you are really trying to capture the views of many legislators with vastly different motivations).  Needless to say, it is even harder to figure out the intent of the multitude we call “the people.”

Hudson responds to these problems by suggesting an eminently sensible proposal drawn from contract law:  resolve statutory ambiguities against the interests of the party that drafted it.  It’s an idea that makes sense from a normative and practical standpoint.  As a normative matter, organized interest groups hold most of the cards in the initiative process.  Unlike everyday citizens, they possess the resources necessary to get something on the ballot and then get it passed.  Hudson’s rule of construction sensibly places the risk of ambiguity on their shoulders.

The rule creates the right incentives for interest groups to take care in drafting.  Better yet, it reduces their incentives to write a vaguely worded statute in the hope that they will get a big win from the courts (a generous interpretation of a statute that wouldn’t have passed had the question been put explicitly to the voters).  Some think, for instance, that the law struck down by the Supreme Court in Romer v. Evans fit this model; it was sold as a provision outlawing “special rights” for gays and lesbians (like affirmative action), but it’s wording reached a good deal farther to deprive gays and lesbians of more basic protections.

Best of all, as a practical matter, Hudson’s rule of construction is something courts might realistically adopt.  Some of the proposals on interpreting the products of direct democracy have an air of unreality.  They typically require courts to engage in complex political judgments about the initiative, the legislative process, and the relationship between the two.  Hudson’s proposal may not be a slam dunk on the manageability front, but at least we know that courts have had some experience in applying this rule in contracts cases.  At the very least, Hudson’s intriguing proposal looks like a good place to start.

Speech and Markets

Jan 19, 2011 Louis Michael SeidmanAdd a Comment

Is there anything new to say about the constitutionality of campaign finance regulation?  Well, actually, there is, and Deborah Hellman says it in her fine new article “Money Talks but It Isn’t Speech.” The significance of Hellman’s article extends beyond the vexed yet tired issue of campaign finance, however.  Her work is an important intervention in a central – perhaps the central – problem in modern constitutional law.

To understand what that problem is, we need a brief and necessarily crude overview of twentieth century constitutional history.  During the first third of the century, civil liberty rights, to the extent that they existed at all, were closely linked to property and market rights.  The reigning ideology treated both as within a private sphere. Liberty was defined as the absence of government intervention, and, at least in principle, there was no distinction between free markets in goods and free markets in speech, both of which were judicially protected by limits on the political branches.

On the conventional account, Franklin Roosevelt’s struggle with, and ultimate victory over, the Old Court ended constitutional protection for property and markets.  Property distributions were moved from the constitutionally mandatory sphere to the politically discretionary sphere.  On this view, it was at least open to the political branches to treat true economic liberty as necessitating, rather than precluding, government intervention.

The question, though, was what to do about civil liberties.  In the famous Carolene Products case, the Roosevelt court provided an answer:  Although markets and property entitlements were subject to political regulation, civil liberties were not.  In other words, the old ideology equating freedom with the absence of government was preserved in the civil liberties sphere, even as it was abandoned in the economic sphere.  In the wake of the Carolene reformulation came a burgeoning of civil liberties protections (always equated with the absence of government)  — in particular greatly expanded criminal procedure rights, speech and religious rights, and rights to reproductive autonomy.  At the same time, the Roosevelt Court abruptly terminated constitutional protection for private economic arrangements.

By the early twenty-first twentieth century, the Carolene reformulation has begun to fray around the edges.  In some areas, the Court has retreated from the protection of civil liberties, and there are hints of renewed interest in economic protection.  Yet, by and large, the reformulation has endured.  What has endured as well, though, are the tensions at the heart of the reformulation – tensions that should have been apparent from the beginning.  Briefly stated, the problem is this:  No civil liberty can be exercised in the absence of some sort of property entitlement.  For example, it does no good to be secure in one’s home from unreasonable searches and seizures if the government can simply declare that it is no longer one’s home, but instead government property.  Similarly, all speech must occur somewhere and use something.  If the government is entirely free to shift property entitlements to the somewhere and something, then   it is free to control speech as well.

This deep contradiction is right at the surface of the debate over campaign finance regulation.  Everyone concedes that political campaigning is free speech in its purest sense.  But campaigning costs money.  If the Carolene compromise means that the government can control the money, doesn’t it follow that it can control the speech as well?

It is at this point that Hellman’s proposal takes hold.  Hellman starts by noticing what seems to be a contradiction in our civil liberties jurisprudence:  Some constitutional rights are assumed to entail the right to use money to exercise them, while others are not.  For example, the right to own a gun includes the right to purchase the gun.  The right to have an abortion includes the right to pay a doctor to perform it.  But the right to vote does not include the right to buy and sell votes, and the right to child rearing does not include the right to buy children.

Hellman resolves the contradiction by respecting both halves of the Carolene reformulation.  Because markets are not constitutionally protected, the government has discretion to create nonmarket methods for distributing certain goods, even if the goods themselves are constitutionally protected.  When it does so, it also has the ancillary power to prohibit the use of money to buy the goods.  But when the government chooses to use market methods of distribution, then the other half of the Carolene reformulation takes hold, and it must allow the goods to be purchased.

At first, it may seem that this solution is entirely circular:  The government can prohibit the purchase of constitutional goods when there is not a market method of distribution, and there is not a market distribution when the government prohibits the purchase of the goods.  Hellman breaks out of the circle by insisting that if there is not a market distribution, then the Constitution demands some other method of distribution.  Thus, the government could ban the sale of guns, but if it did so, it would have to have some other (presumably constitutionally adequate) method of getting guns into at least some people’s hands.

It follows from this that campaign finance regulation is permissible if, but only if, the government has decided to distribute the means to speak in political campaigns by a nonmarket mechanism.  Hellman is uncertain whether the McCain-Feingold regime satisfies this requirement, but at least it is clear that, under her approach, a system that relied entirely on public financing could also prohibit private contributions.

Does this approach solve the Carolene conundrum?  Not entirely.  For example, at least in theory, her approach seems to mean that the government could nationalize all newspapers and then distribute them for free.  Perhaps she has an argument that avoids this conclusion, but the paper does not present it.

Surely, though, we cannot expect a single doctrinal intervention to solve a fundamental contradiction in constitutional law.  At base, the contradiction rests on the impossibility of providing meaningful civil liberties protections in an economic system that produces huge differences in wealth.  That contradiction is not going away any time soon.