Yearly Archives: 2012
Oct 24, 2012 Mark Kende & Matthew Shimanovsky
Chief Justice John Roberts, Jr. made headlines during his confirmation hearings by comparing judges to baseball umpires. Now imagine that umpires had the ability to secretly obtain expert and other opinions about whether a pitch is a ball or strike. That is the question raised by Allison Orr Larson’s important new article, Confronting Supreme Court Fact Finding. Larson’s article shows how U.S. Supreme Court justices are actually doing more of their own fact-finding, rather than just acting as the nation’s highest appellate court of law. Following Kenneth Culp Davis, she calls these findings “legislative facts,” to contrast them with “adjudicative facts.” The article usefully explores the causes and consequences of this significant development.
Larson shows that some justices have used “in house” fact finding, beyond the crucible of the adversary process and cross examination, in 90 of 120 of the most important cases decided in the last 15 years. Of those 90 cases, 47% cite to 4 or more sources outside of the briefs. Larson says that the Internet has been instrumental in permitting such fact finding. The Internet allows each justice to bolster an opinion, counter a scathing dissent, or justify overturning previous case law.
Larson highlights how several justices went treasure hunting in Brown v. Entertainment Merchant Assoc., 131 S.Ct. 2729 (2010). There, Justice Breyer’s dissent compiled an exhaustive appendix of the social science research on how violent video games affect children. Justice Thomas’ very different dissent referenced 57 sources, not cited by either party or the amici, to establish that parents had plenary legal authority over their children during the founding generation. In addition to its use of the Internet, Larson argues that this pattern of independent judicial fact finding reflects a trend favoring empirical evidence. These citations give the ruling a veneer of authority. Justice Scalia, however, often chides his counterparts for including material outside the record—even though he himself included supplemental research in D.C. v. Heller, 554 U.S. 570 (2008).
Larson also provides a limited taxonomy of the Court’s “in house” fact finding. She notes that the Justices have answered questions such as the emotional impact of prison, and how obesity helps cause other diseases. This research even sometimes bolstered important constitutional interpretations. Larson notes that no federal procedural rules bar use of legislative facts, though their use does not fit neatly into an adversarial system.
Larson then discusses her concerns about this development. First, such material can perpetuate bias since it is not subject to the same kind of attack as trial evidence. Moreover, Google is a wonderful tool, but its search engine depends upon user preferences. Second, the Internet contains many untruths. It would be disastrous if erroneous information became the basis for binding precedent.
Larson also raises fairness and legitimacy questions. The parties may feel sandbagged if the Court renders a decision based on facts that neither party presented. In addition, the Court’s ability to use such policy oriented material could lead it to render broader decisions than it would otherwise, which would tread on the prerogatives of the democratically elected branches.
Larson concludes by suggesting that there are two alternatives. Either the Justices should have free rein in this area, or they should be “minimalist” and stop engaging in their own research. She briefly explains the pros and cons of each approach without drawing a definitive conclusion. As legal scholars debate questions such as strict versus flexible textual interpretations, Larson has shed light on the eclectic practical components that actually make up U.S. Supreme Court decisions. Perhaps in the future, she will proceed in a more normative direction and provide her own set of recommendations.
Sep 19, 2012 William Baude
Jud Campbell,
Commandeering and Constitutional Change,
122 Yale L. J. --, (forthcoming 2013)
available at SSRN.
Some of the best constitutional history papers have a single conceptual move that makes you see the world differently. Once you understand some previously unappreciated legal rule or piece of historical context, everything falls into place. Jud Campbell’s forthcoming article in the Yale Law Journal, Commandeering and Constitutional Change, is just such a paper.
The topic is “commandeering”—i.e., whether the federal government can force state officers to execute federal law. The Supreme Court has said that it cannot, because commandeering is inconsistent with state sovereignty. Campbell’s central insight is this: At the time of the Founding, commandeering was the Anti-Federalist position, not the Federalist position. The Anti-Federalists thought that it was much better for state sovereignty to have federal law executed by their own officers. They did not want a corps of officers in the states with federal paychecks and federal allegiance, and they were willing to accept commandeering, as opposed to voluntary cooperation, as the price of state execution.
In Printz, Justice Scalia rejected Alexander Hamilton’s arguably pro-commandeering statements by calling them “the most expansive view of federal authority ever expressed, and from the pen of the most expansive expositor of federal power.” But Campbell’s insight shows us that when Hamilton supported commandeering, he was not putting forth an expansive view of federal power. Rather, he was conceding a point to the Anti-Federalists. Hamilton had opposed state execution of federal law during the impost controversies under the Confederation government, and preferred independent federal enforcement.
Campbell walks through a lot of other Founding-era evidence, and his historical eye is very sharp; he’s even unearthed from the Filson Historical Society in Louisville a previously unknown 1802 circuit court opinion on commandeering and the Necessary and Proper Clause. I find his account quite persuasive, from what I understand. But the key to all of it is the conceptual move: Once you understand that at the Founding the politics of commandeering were the opposite of what they are now, everything falls into place.
Plenty has been written about legal history scholarship and the comparative advantages of lawyers and historians in writing it. In my view scholarship like Campbell’s illustrates what is best about history by lawyers, when they do it well. Lawyers have an eye for conceptual moves that simplify or refract the existing evidence, and help us see the old world in a different light.
At the same time, Campbell’s piece also illustrates what is dangerous about the history work of lawyers when it is done badly. The Justices in Printz assumed that commandeering had the same relationship to state sovereignty back then as it does now. Because of that anachronism, they made the wrong assumptions about how to read ambiguous materials and gaps in the record. It is worth noting that Campbell himself is cagey about the implications of his analysis: perhaps if the social meaning of commandeering has flipped since the founding, Printz is right as a matter of the living constitution. But Printz is trying to be originalist, and Campbell shows that it is does it backward.
Campbell’s article is especially impressive since it his first. It follows an excellent and sophisticated student note, which examines historical and legal reasons that would explain an absence of religious accommodation case law in the nineteenth century, even if such exemptions were thought to be constitutionally based. I look forward to seeing what he does next.
Aug 2, 2012 Charles Shanor
Great scholarship in American constitutional law ranges from the conceptually original to the historically meticulous. The most cited articles of all time contain far more of the former than the latter. This year’s scholarship contains a rare piece that is both conceptually groundbreaking and a deep historical dive. An article of interest to multiple audiences, Nathan Chapman and Michael McConnell’s Due Process as Separation of Powers merits kudos from both conceptualists and historicists.
Chapman and McConnell note that due process, the “oldest phrase and the oldest idea in our Constitution,” has, perversely, become “the most unrecognizable in modern interpretation,” a phrase used to “subvert the separation of powers” by giving courts “a super-legislative power to change rather than enforce and interpret the law.”
The authors demonstrate that Fifth and Fourteenth Amendment due process, when applied by courts to constrain legislative power, had a very specific original meaning lost to both the judiciary and modern readers. This meaning is contrary to recent scholarly conclusions that (1) due process only applies to judicial process, (2) substantive due process enables judicial review of legislative policy choices violating judicial notions of property or liberty, even under proper procedures, and (3) substantive due process is contemplated under the Fourteenth but not the Fifth Amendment.
Here is the article’s core conclusion:
Legislative acts violated due process not because they were unreasonable or in violation of higher law, but because they exercised judicial power or abrogated common law procedural protections. … [T]he principle of due process extended to acts of the legislature in two narrow ways: statutes that purported to empower the other branches to deprive persons of rights without adequate procedural guarantees were subject to judicial review, and acts by the legislature that deprived specific individuals of rights or property were subject to similar challenge, either in the legislative forum itself or in the course of subsequent judicial consideration. (P. 1676.)
This encompasses a role for judicial review of some statutes, but avoids the Supreme Court’s current tool for such examination, substantive due process. In short, the Constitution rejected the British notion of Parliament’s supremacy, but did not trade parliamentary supremacy for judicial platonic guardianship.
Legislative adjudication of cases, though commonplace in Britain, was not contemplated in the Constitution. Nor was special legislation invidiously targeting specific persons acceptable to the Founders. Individualized punishment, dispute resolution, and the related tasks of finding the common law and interpreting statutes, were for the courts. Law enforcement was for executive officers, but only when those officers were enforcing laws enacted by the legislature. The Founders would have thought the judiciary institutionally arrogant to throw out legislation for failure to satisfy a particular judge’s notions of natural law or enlightened policy, but would have been quite comfortable with a more particularized brand of judicial review that repudiated institutionally inappropriate legislative acts. Specific bars in the Constitution, such as those against bills of attainder and ex post facto laws, are consistent with this analysis. “The Framers specifically enumerated protections that they regarded as especially important, and then added a catch-all”—due process.
Chapman and McConnell delve into history to prove their points, quoting from and giving contextual explanations of early English and American authorities. In England, judges interpreted Parliament’s decrees, but had no authority for substantive due process review of legislation. In the American experience, colonists perceived that Parliament violated their rights by altering common law procedural protections and established property rights without a fair hearing. Colonial experiments with legislative supremacy collectively “led many Americans to recognize that legislatures, no less than executive officials, must be controlled by the force of law.” Alexander Hamilton, viewed by some as supporting substantive due process, only said there “must be certain procedural safeguards before someone may be deprived of his rights.”
Of course, students of the founding era are aware that structural constitutional law and individual rights have a deep synergy. After all, James Madison thought the Constitution’s structural provisions were so liberty-enhancing that a Bill of Rights was unnecessary. Eventually, Madison supported (and even drafted) the Bill of Rights. Even if it was unnecessary to protect citizens, it was essential to the Constitution’s ratification.
These questions remain central: (1) Does due process apply to legislative acts? (2) If so, how? The former is easily answered through a structural argument (Madison’s initial proposal was to locate the clause in Article I before Bill of Rights was appended to the Constitution) and a comparative argument (other Bill of Rights provisions clearly applicable to Congress were equally “silent about whom it prohibits from depriving rights” by use of the passive voice). Addressing the second point consumes much of the article. The authors concede that the Framers believed in natural law—witness the Declaration of Independence—but find “no evidence that any [Framers] believed that acts of Congress would be evaluated by their conformance to natural law.” Their view is consistent with the focus on positive law when it lists only the Constitution, acts of Congress, and treaties as “the supreme Law of the Land” in Article VI.
In a long historical section, Chapman and McConnell consider whether, as Ryan Williams argued in The One and Only Substantive Due Process Clause, 120 Yale L.J. 408 (2010), the due process clause of the Fourteenth Amendment should be read more broadly to encompass substantive due process. They answer no. They argue that a huge body of case law prior to ratification of the Fourteenth Amendment, plus the text and history of the amendment, show that “due process” was a structural limit on Congress to act only by legislating. The due process clause of the Fourteenth Amendment was not an open-ended invitation for substantive overruling of statutes based on natural law or moral principles. Separation of powers principles rather than natural law controlled due process invalidation of legislation. This is the core of the authors’ case.
Neither quasi-judicial acts by legislative bodies nor rules operating on individuals rather than “general rules for the government of society” were allowed. Importantly, this latter category did not include statutes benefiting one or more persons where nobody was deprived of a right: absent deprivation, no process was due. Illustrative state and federal cases, dating from 1798 to 1853, are far removed from modern substantive due process. They rely on two structural principles, prospectivity and generality, while substantive due process invalidates some legislation that is prospective and applies to all citizens equally. All but two are fully explicable on “due process as separation of powers” grounds rather than substantive due process. “[T]he two faulty exceptions . . . prove the rule,” one being inconsistent with state court and Supreme Court decisions and the other, Dred Scott v. Sandford, being arguably the most despised Supreme Court decision of all time.
Chapman and McConnell show that, while abolitionists prior to the Civil War argued that higher law invalidated slavery, courts rejected those arguments. After the Thirteenth Amendment (positive law) abolished slavery, abolitionists sought only the due process as separation of powers rights recognized for whites. No abolitionist argued that the Fourteenth Amendment provided substantive due process rights.
The final section of the article, “Applications,” begins by noting that the theory of due process as separation of powers contains two challenges. The first, distinguishing between the constitutional functions of the three branches, is resolved by holding legislation to standards of prospectivity and generality. The second, interpreting whether facts fall within or outside these standards, “is surely exceeded by modern substantive due process, which has no consistent or reliable content beyond the Justices’ personal moral views.”
After dealing with the property and liberty to which due process applies, Chapman and McConnell turn to due process for the executive and the legislative branches. They find Justice Jackson’s famous tripartite system for evaluating executive actions in the Steel Seizure Case “needlessly complicated”: if the executive took the company’s property without “an express or implied authorization of Congress,” due process was lacking. Where they stand on sole presidential powers, the “unitary executive,” and the Commander-in-Chief power is unclear, and less helpful than the guidance provided in Justice Jackson’s concurring opinion. Their take on delegation of authority by Congress—that unclear delegation should be construed as no delegation—represents a huge departure from current principles of deference, and their skepticism of military detention, which “goes to the heart of the liberty protected by the Fifth Amendment,” is noteworthy.
Predictably, the article takes apart the classic substantive due process cases. Here are some examples: Lochner is insupportable as substantive due process but the Tenth Amendment “should have provided the determinative rule of decision”; Griswold’s inalienable right of couples to buy contraceptives “strains any reasonable construction” of the Constitution, but Privileges and Immunities might protect that right; Glucksberg and Troxel did “little to restore the original meaning of due process”; Roe is insupportable but “firmly established in precedent”; and Casey and Lawrence “put lawmaking beyond the reach of the government without a sound basis in the text, history, or jurisprudential practice of due process of law.”
And there is more. This is important scholarship, broad-ranging and potentially game-changing. Will it help get the Supreme Court out of a deeply flawed doctrinal box? Unlikely, but only time will tell.
Jun 18, 2012 Ilya Somin
Logan Everett Sawyer III,
Creating Hammer v. Dagenhart, Wm. & Mary Bill Rts. J. (forthcoming)
available at SSRN.
The Supreme Court’s decision in Hammer v. Dagenhart, 247 U.S. 251 (1918) is one of the most reviled judicial rulings in American history. The ruling struck down a federal law banning the interstate transportation of goods produced in factories employing child labor, holding that it exceeded Congress’ authority under the Commerce Clause. Right from the start, critics denounced Hammer as an unprincipled decision with awful real-world consequences, an attempt to legislate “laissez-faire” ideology form the bench. To this day, the case is often invoked to discredit efforts to enforce limits on the commerce power. Several critics have recently used analogies to Hammer to attack the case challenging the individual health insurance purchase mandate.
Logan Sawyer’s excellent article, Creating Hammer v. Dagenhart, is an important challenge to the conventional wisdom about Hammer. Sawyer questions the long-dominant view that the ruling lacked a basis in precedent, and demonstrates convincingly that it was not the product of “laissez-faire” thinking.
The statute invalidated in Hammer forbade the interstate shipment of goods produced in factories employing children under the age of sixteen. In Champion v. Ames, 188 U.S. 31 (1903), a closely divided Court upheld a federal law banning the interstate shipment of lottery tickets. The drafters of the federal child labor law believed their legislation could be upheld on the same basis. But the Hammer Court ruled that there is a distinction between laws restricting the shipment of “harmful” goods such as lottery tickets and alcohol, and “harmless” products, including most of those produced in factories employing child labor. The former fell within the scope of Congress’ power to regulate interstate commerce; the latter did not. Critics have long denounced this distinction as arbitrary, unprincipled, and motivated by an ideological commitment to “laissez faire.”
Sawyer investigates in detail the career of Philander Chase Knox, the prominent lawyer who developed the legal reasoning later adopted in Hammer. A former Attorney General and leading adviser to President Theodore Roosevelt, Knox was no advocate of laissez-faire, and in fact supported extensive government regulation – including federal regulation – of the economy. He was, among other things, a longtime advocate of strong federal antitrust laws and food inspection laws.
Sawyer shows that Knox advocated the distinction between regulation of interstate transportation of “harmful” and “harmless” items as a way of preventing Congress from seizing unlimited regulatory authority, and to protect the autonomy of state governments. He also demonstrates that by 1918, the harmless item doctrine was already supported by a long line of judicial and legislative precedent.
Knox’s reasons for denying that the federal government had the authority to ban the interstate shipment of goods of any kind for any reason were not unreasonable. Otherwise, Congress could use this power as leverage to regulate almost any aspect of society. Even some contemporary critics of Hammer admitted as much. Harvard law professor Thomas Reed Powell suggested that “[n]o one would have the hardihood to argue in favor of the constitutionality of congressional prohibition of interstate transportation of all goods from states in which divorce is allowed or of all persons who beat their wives. Such [federal laws]… would wield the commerce power as a club to control local enterprises in no way dependent upon interstate commerce.” Both Knox and Powell claimed that the Commerce Clause should not be interpreted to allow Congress to use bans on interstate in transportation as a lever for regulating any activity it wished. They differed, however, on where the appropriate line should be drawn.
Sawyer might have strengthened his revisionist project by noting that, just as the legal case against Hammer is not as rock-solid as usually believed, the real-world effects of Hammer were also not as dire as conventional wisdom assumes. By the time Hammer was explicitly overruled in 1941, all forty-eight states had enacted laws banning child labor for children under the age of 14, and some banned it for children up to the age of 16, like the federal law invalidated in Hammer. This calls into question the longstanding belief that state regulation of child labor was impossible because of a “race to the bottom.” The supposedly “laissez-faire” Court unanimously upheld the constitutionality of state child labor regulations in Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913) just five years before Hammer. This left states free to adopt their own child labor restrictions. It also suggests that Hammer was not the result of judicial hostility to child labor regulation as such.
It is also unclear that the failure of some states to ban labor by children aged 14 to 16 was necessarily harmful. By modern standards, the United States in 1918 was a very poor society. In such an economy, banning child labor might deprive many poor families of much-needed income and leave children worse off than they would be otherwise – especially when one considers that many children barred from working in factories would likely end up working at home or on farms for less money and sometimes under more dangerous conditions. Indeed, farm labor by children was not banned under the law struck down by the Court in Hammer, and remains legal to this day.
Sawyer’s work certainly does not definitively prove that Hammer was correctly decided. Nor does that seem to be his intention. The text of the Commerce Clause does not distinguish between federal regulation of interstate trade in harmful as opposed to harmless goods. One may also believe, as many scholars do, that the Court should broadly defer to Congress on virtually all federalism issues Sawyer’s article also does not address the question of whether Hammer was consistent with the original meaning of the Clause, as opposed to legal and legislative precedent circa 1918. But Sawyer does effectively undermine the traditional view that this was one of the Court’s worst-ever decisions, a ruling lacking any legitimate basis in legal reasoning.
Sawyer’s article is part of a larger recent trend of academic reconsideration of the Lochner-era Supreme Court, most notably David Bernstein’s Rehabilitating Lochner. This growing revisionist literature finds that the Court’s decisions were both more defensible and less uniformly “laissez faire” than traditionally believed. This weakens claims that the decisions of that era – and by extension all judicial efforts to protect economic liberties and enforce limits on congressional power – are inherently suspect. It also undercuts the view that it is impossible for courts to engage in principled judicial review of “economic” legislation without enforcing total laissez faire.
Sawyer’s article will not be the last word on Hammer. But it goes a long way towards proving that a debate on this issue is actually necessary. Thanks in part to Sawyer’s research, Hammer can no longer be dismissed as obviously indefensible.
May 16, 2012 Frederick Schauer
Good legal advocacy often involves characterizing hard cases as if they were easy, and describing indeterminate precedents or statutory provisions so as to imply that they clearly point in the direction of the advocate’s preferred outcome. And because the great majority of normative or prescriptive legal scholarship is committed by individuals trained and proficient as legal advocates, much of the scholarly output of the legal academy shares the same characteristic. Outcomes that are chosen are claimed to be compelled, and prescriptions that are desired are treated as inevitable. And because advocates whose favored outcomes rest on debated moral or political premises are reluctant to acknowledge the contested nature of the assumptions that drive their outcomes, it is common to see outcomes that are thought to be normatively desirable couched in the language of inevitability, and outcomes thought to be normatively undesirable described as impossible or simply logically flawed.
These pathologies are nowhere more apparent than in the domain of normative constitutional theory, where normative arguments and premises are frequently concealed in the language of linguistic, legal, or institutional necessity. A useful corrective has been provided by Andrew Coan, who attempts, with considerable success, to show that masking morally and politically normative theories of constitutional interpretation in the supposed nature of language itself, or in the inescapable implications of having a written constitution, is largely flawed.
Much, but not all, of Coan’s target is the recent spate of attempts to claim that interpreting the Constitution (or any constitution) according to some version of originalism is the logical entailment of the very commitment to a written constitution in the first place. Coan thus challenges a range of originalists spanning the political and ideological spectrum, questioning the views of Justice Scalia, Jack Balkin, Keith Whittington, and others, all of whom have argued that simply having a written constitution necessitates interpreting its language according to some version of original meaning. But Coan, with an admirably careful and analytically precise argument, shows how such arguments depend on normative assumptions that are not necessary parts of the nature of language or of the decision to write a constitution. Thus, using as an example an approach discussed briefly, but not featured by Coan, we can see that it would be far from impossible to understand and interpret a written constitution by reference to the current conventional meaning of its language. Such an approach may or may not be wise, and its problems might well outweigh its virtues. But as soon as we recognize that such an approach is at least possible, we are compelled to recognize as well that the argument for its alternatives—originalism, for example—involves a political, moral, and institutional choice. Originalism in one form or another might indeed be desirable, but because it is compelled neither by the nature of language or the very idea of a written constitution, it must be argued for on normative grounds. However, this is precisely what Coan argues many originalists seem loath to do.
Much of Coan’s attention is focused on originalism, perhaps because of its contemporary ubiquity and seeming political catholicism. But the same problem of thinking that too much follows from the writtenness of a constitution, he argues, besets non-originalist perspectives as well. Just as originalism does not in any form inevitably arise out of the commitment to a written constitution, neither does common law constitutional interpretation, nor the idea of a living constitution, nor any other non-originalist approach to constitutional interpretation. Such approaches, no less than originalism, rest on normative values, values which Coan argues need to be justified explicitly and on their own terms rather than being treated as the inevitable implications of having a written constitution.
Coan is by no means the first to point out the normative moral and political groundings of various theories of interpretation. Mitchell Berman’s tendentiously titled “Originalism is Bunk,” 84 N.Y.U. L. Rev. 1 (2009), for example, castigates a gaggle of originalists for denying the political and moral underpinnings of their approach. But Coan goes further than many of his forebears, partly because his target is as much non-originalism as it is originalism, and partly because his focus is so much on the idea of a written constitution itself. Ever since John Marshall proclaimed in McCulloch v. Maryland that “we must never forget that it is a constitution we are expounding,” constitutional advocates have insisted that all sorts of interpretive and substantive approaches follow inexorably from the very fact of there being a written constitution. A careful reading of Coan’s article will show why Justice Marshall was mistaken in believing this to be so in 1819, and why a host of theorists of all stripes are mistaken in believing this to be so now.
Coan’s arguments are supported by analytic precision, careful argument, useful distinctions, and just the right amount of philosophy. He does not use the philosophy of language to display his erudition, and he recognizes that philosophy is useful in legal scholarship when it illuminates legal issues and legal problems. It may be useful for philosophy to use legal examples and legal problems to sharpen philosophical analysis, but legal scholarship that seeks simply to put legal issues into philosophical categories misses a valuable opportunity to use philosophy in the service of legal analysis. It is to Coan’s credit that he does this so well.
