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.
Mar 30, 2012 Paul Horwitz
Randall P. Bezanson,
Whither Freedom of the Press?,
Iowa L. Rev. (forthcoming), available at
SSRN.
Randy Bezanson’s recent short piece, Whither Freedom of the Press?, is an instructive example of how to get around an obstacle—two obstacles, really. The first is the Supreme Court’s opinion in Citizens United v. FEC, 130 S. Ct. 876 (2010). In the course of striking down a law prohibiting the direct use of corporate or union treasury funds for electioneering communications, the Court stated that “the institutional press has [no] constitutional privilege beyond that of other speakers.”
The second obstacle is actually more formidable. In a recent article in the University of Pennslyvania Law Review, Freedom of the Press as an Industry, or for the Press as a Technology?: From the Framing to Today, Eugene Volokh takes on the view of some writers, including Justice Stevens in his dissent in Citizens United, that the Press Clause of the First Amendment provides some form of protection to the press as an “industry” or institution. Volokh argues that the Press Clause protects the press only “as a technology”—that it secures only “the right of every person to use communications technology,” and grants no special privileges to the professional or institutional press as such. Skillfully marshaling extensive historical sources, Volokh concludes that the evidence “point[s] powerfully toward the press-as-technology reading” of the Press Clause, “under which all users of mass communications technologies have the same freedom of the press” and journalists qua journalists have no unique privileges.
Volokh closes in a quietly brutal fashion. He acknowledges that “the Supreme Court has never limited itself to analyzing constitutional provisions based solely on historical sources,” thus leaving open the possibility of an institutional reading of the Press Clause. His research “simply” shows, he adds, that “an argument for a press-as-industry interpretation of the Free Press Clause must rely on something other than original meaning, text, purpose, tradition, or precedent.” Which is to say, virtually every standard interpretive source.
What do you do if, like Bezanson, you favor a different reading of the Press Clause, but you think Volokh has done a fair job “when judged by the spare and spartan doctrine of textualism and originalism?” What do you do when the biggest tree in the forest stands directly in your way and you are armed only with a knife? There are two basic options: move around it, or dig deep enough underneath it to bring the whole thing down. Bezanson’s article is a nice illustration of both methods. Whether he succeeds wholly in getting around his obstacle or not, this short piece is a pleasure to read just for its forensics.
The first lesson Bezanson teaches us is to go after the weakest link. In this case, that is Citizens United itself. As he notes, Justice Kennedy’s treatment of the press in his opinion is characteristically “offhanded.” Kennedy cites many cases concluding that the First Amendment rejects distinctions based on a speaker’s identity, and a smaller number of cases suggesting that the press is entitled to no special constitutional privileges. But he ignores many decisions and statutes treating the press differently, such as “exemptions from taxation and regulation, . . . differential postal rates, sales and use tax exemptions, and media exemptions under the campaign laws themselves.” Either these laws are all unconstitutional, or “the press guarantee means something different from the speech guarantee, which the Court denies.” Bezanson concludes that Kennedy’s broad statements are poorly grounded and that Citizens United ultimately says “nothing at all significant or important or even controversial about freedom of the press.”
This leaves Bezanson in a better position to take on Volokh himself. And where better to begin with the Press Clause itself? He makes the obvious point that it is “textually awkward” to simply read the Press Clause “out of the First Amendment.” The reader is primed to believe that it must mean something, and something non-trivial at that. This shifts the burden on Volokh.
Volokh has an answer, of course: the Press Clause simply means that all speakers, whether they belong to the institutional press or not, are entitled to use technologies of mass communication. In Bezanson’s view, Volokh presents a false dichotomy, under which the “press” either refers to something “institutional” or something “technological.” But “no legal scholar who has examined the ‘press’ question has seriously entertained the sparse and barren meanings” Volokh presents as the only alternatives. Rather, “the meaning and role and rights of the press under the First Amendment are complex, culturally and technologically situational, functional, and broadly historical questions.” Volokh’s rejection of this admittedly vague description is thus implicitly treated as a failure to think deeply and maturely about the issue: “As an originalist Professor Volokh will have none of that.” What scholar wants to deny the capacity to think in “complex” ways about a deep social and historical question?
Having hinted at the insufficiency of Volokh’s views and the incompleteness of Kennedy’s broad and unhelpful dicta about the Press Clause, Bezanson is in a better position to present his alternative vision. For Bezanson, a raft of excellent historical scholarship demonstrates that the Press Clause involved more than technology. Historically, it is closely linked to “our constitutional conceptions of freedom and democratic self-government.” The Framers believed, in the words of Press Clause scholar David Anderson, that “freedom of the press was inextricably related to the new republican form of government and would have to be protected if their vision of government by the people was to succeed.” Bezanson adds that his point “is not to establish that the Court or Professor Volokh is wrong,” but “to emphasize that there is a rich scholarship on the questions of the press’s meaning and rights that deserves attention and that a common thread in the scholarship is attention to purpose and function in defining and protecting the press.” In effect, he is saying to Volokh, you can have your historical evidence, but you’ve missed something deeper here. Of course, whether this scholarship is successful as a historical matter is precisely the point of Volokh’s article. But Bezanson treats the very existence of competing scholarship as evidence that something is missing from Volokh’s argument.
Having argued that there is some basis for differential treatment of the press, Bezanson then turns from history to policy, asking whether there are good justifications for a “constitutionally distinct press freedom.” This allows him to spend the rest of the piece side-stepping Volokh’s historical evidence and presenting a vision of the Press Clause itself, until we almost forget that Volokh’s alternative reading exists. Bezanson does a fine job presenting that vision, which distills years of his own work and that of other scholars.
For Bezanson, the press’s relationship to self-government poses “distinct dangers of compromising the press’ independence.” That independence turns on “the nature of the expressive and communicative decisions the press makes”—on the professionalized “journalistic editorial processes and judgments” that are consistent with “the assumptions of truth-seeking and public information and opinion upon which our democracy functions.” Those specialized functions, and their contribution to democracy, present “distinct freedom of the press questions, not just freedom of speech questions.” Finally, he argues that a distinct element of the press’s importance to public discourse is its independence from government. But government speech doctrine suggests that the government can speak as it wishes, including speaking as “the press.” Since Bezanson has already posited the importance of press independence, this allows him to argue that whatever government may do by way of aping the press, there must be some different institution called “the press” that remains constitutionally distinct from the government. That is true even in a world of shifting technology, in which millions have access to the technology of mass communication. Amidst this “cacophony” of voices, Bezanson argues, we need something more. We need a press that serves as “an essential voice with a purpose and function borne of independence and the needs of democratic self-government,” one characterized by press values of “disinterestedness and devotion to the unreachable, yet noble, ideal of truth.” Nothing less will do for a functioning democracy.
This is all skillfully accomplished. By linking Volokh to Citizens United, Bezanson can attack Volokh indirectly by criticizing Justice Kennedy’s typically broad statements. Rather than go after Volokh’s history directly, his summary of the competing scholarship allows defenders of an institutional version of the Press Clause to avoid feeling fatally undercut by Volokh’s evidence. By shifting his ground from history to policy reasons for a functionally oriented version of press freedom, he moves the discussion to safer ground. And he deploys one last technique: the sacrifice play. Many scholars of press freedom have argued that it includes some positive rights, especially a right to engage in newsgathering. Bezanson writes that he has “long been skeptical about many of these press claims,” but that they “do not lie at the center of things.” By throwing overboard claims for newsgathering protection or the protection of confidential sources, he leaves us with a diminished “functional” press, but avoids the difficulty of swimming against a stream of constitutional doctrine that generally disfavors positive privileges, let alone institutional privileges.
If this all sounds like damning with faint praise, it’s not. Bezanson’s article scores some nice points. History is painting a picture, not doing a sum, and even a sound use of originalism that neglects serious historical work in this area leaves something to be desired. It’s discomfiting, at least, to read an 80-page treatment of the historical meaning of the Press Clause that doesn’t mention the work of Paul Starr, William Siebert, Robert Martin, Anuj Desai, and Leonard Levy (cited once but peripherally in Volokh’s paper), among others, that doesn’t mention early postal subsidies for newspapers, that doesn’t fully grapple with the early development of competing themes of “free press” and “open press,” and so on. Volokh’s article is good as originalism but incomplete as history. There is much more room for Bezanson’s argument for a functional or institutional component of the Press Clause than Volokh’s dismissive conclusion implies. Although I am more sympathetic than Bezanson to the possibility of press rights relating to newsgathering, he does a fine job in a short space of presenting compelling arguments for his vision of the Press Clause.
But it is his forensics I find especially fascinating. Volokh’s superb article and Citizens United both pose serious challenges to defenders of institutional press freedom. By ridiculing the opinion and mostly leaving Volokh’s article untouched while working around it, Bezanson gives us an artful example of lawyerly argument as jiu-jitsu.
Feb 8, 2012 Mark Tushnet
The Texas Law Review recently published an important symposium on Latin American constitutionalism. Many of the articles make important contributions to the field of comparative constitutional law, not least because the English-language literature in the field has been dominated by discussions of constitutional doctrine in Europe and North America. (Not surprisingly, the part of the literature on creating constitutions has had a wider geographical range.)
The two articles I have singled out deal with a phenomenon of growing importance outside the United States, the judicial enforcement of social and economic – so-called “second generation” – rights. Interpreting constitutions adopted or amended substantially much more recently than the U.S. Constitution has been, constitutional courts around the world have moved past the question on which U.S. scholars typically focus – whether courts should enforce second-generation rights – to consider how to do so. Or, perhaps more precisely, many courts have embarked on projects of enforcing second-generation rights, and their performance allows scholarly evaluation, informed by actual experience in additional to theoretical speculation, of judicial enforcement of second-generation rights.
These articles examine judicial performance in Brazil and Colombia, and offer rather different evaluations. Octavio Luiz Motta Ferraz examines litigation in Brazil over the right to medicine, and as his subtitle indicates he is not impressed. Right-to-medicine cases arise when an ailing person believes that he or she would benefit medically from a prescription drug not available through the nation’s health care system, and seeks a judicial order directing that the system make the medication available to the claimant. These right-to-medicine cases have been strikingly “successful” in Brazil, in the sense that large numbers of patients win their cases and get access to the medication – but at great cost to the nation’s health-care system. Motta Ferraz reports estimates that more than 40,000 lawsuits a year are filed, and that almost all are successful. He gives the example of one case that has, he says, become “paradigmatic.” The case involved a patient with Duchenne’s muscular dystrophy, a “genetic degenerative disease that affects muscle cells and progressively leads to the death of the patient.” A private clinic in the United States offered the only treatment with any promise, at a cost of more than $63,000, which Motta Ferraz observes is “about twenty times Brazil’s nominal GDP per capita.” Rejecting the government’s objection that ordering it to provide the treatment would stress its resources (and thereby undermine its ability to provide health care to large numbers of Brazilians less well-to-do than the claimant), the Supreme Federal Court held that the “inviolable rights to life and health” required that the treatment be provided.
Motta Ferraz finds this and similar results troubling – as he should. The Brazilian experience shows that enforcing second-generation rights through ordinary, case-by-case litigation is unsatisfactory, for several reasons. Motta Ferraz notes that this enforcement mechanism disproportionately favors relatively well-off litigants (well-off in terms of wealth, of course, not health) over poor litigants, because the former group are likely to be more knowledgeable about their rights and, perhaps more important, better able to get access to legal representation and so better able to get into court in the first place. In addition, the government’s invocation of what in other contexts would be described as a risk-risk tradeoff (the risk to the litigant’s health traded off against the risks to the health of a much larger number of people not before the court) shows how case-by-case litigation can interfere with the kind of planning that a sensible system of health care provision requires.
Notably, though, the difficulties Motta Ferraz describes arise from the form of the litigation (as well as from what Motta Ferraz describes as the “absolutist” characterization of the right to health by the Brazilian courts, an approach that in the end I think is not separate from the case-by-case litigation form). Courts in other constitutional systems have taken a different approach, most notably in developing litigation forms that induce consultation between the government and affected constituencies and also induce rational government planning to ensure that second-generation rights are respected.
César Rodriguez-Garavito describes one of these alternative litigation forms, drawing on Colombia court orders dealing with efforts to provide housing and social integration for “internally displaced persons,” most of whom were the victims of Colombia’s widespread political violence over the past generation. Opening his article with a dramatic depiction of a “hearing” in the Colombian Constitutional Court, which to all appearances could have been a hearing before a committee of the Colombian parliament, Rodriguez-Garavito analyzes the Court decision that led to the hearing. In 2004, the Court “mandated that the government formulate a coherent plan of action to tackle the IDPs’ humanitarian emergency and to overcome the unconstitutional state of affairs, …, ordered the administration to calculate the budget that was needed to implement such a plan of action and … instructed the government to guarantee the protection of at least the survival-level content … of the most basic rights – food, education, health care, land, and housing.”
Rodriguez-Gavarito then evaluates developments since 2004, listing several “major effects.” First, the decision changed the agenda for state bureaucracies. No longer could they ignore, or give a low priority to, the rights of IDPs. Rodriguez-Gavarito properly describes this effect as resulting from the exercise of a “destabilization right” of the sort identified by Charles Sabel and Roberto Unger. Second, it induced the agencies to coordinate their efforts, a particularly important effect given the cross-cutting nature of the needs of IDPs. Third, the decision induced participation by IDPs and supportive non-governmental organizations in the development of the relevant policies. Fourth, the decision had the effect of “reframing” the claims of IDPs. Rather than being seen by the public as persons in need of social assistance, they became seen as holders of constitutional rights.
Yet, Rodriguez-Garavito acknowledges, “the situation has changed little: although access to education and health care has dramatically improved, benefitting nearly 80% of IDPs, conditions with regards to all other [social and economic rights] continue to be unsatisfactory. To illustrate, 98% of IDPs live in poverty, only 5.5% have adequate housing, and only 0.2% of displaced families received the legally mandated emergency humanitarian assistance in the months immediately following their forced displacement.” One might wonder about the claim that little has changed if “access to education and health care has dramatically improved.” But, suppose we accept Rodriguez-Gavarito’s overall evaluation. Does this mean that the Court’s efforts failed – or “only” that achieving real change under the conditions in Colombia is quite difficult? The evaluation must in the end be comparative: Were the IDPs better off after the Court’s intervention than they would have been had the Court done nothing? The other effects Rodriguez-Gavarito identifies suggests that the answer is, “Yes.”
As I indicated at the outset, recent studies of judicial performance in enforcing social and economic rights suggests that the debate over second-generation rights should be reframed, so to speak. Instead of debating whether courts should enforce such rights, scholars might profitably turn their attention to other questions: When courts enforce such rights, how should they do so? Which litigation forms are appropriate and which inappropriate for these projects? What implications, if any, are there for the enforcement of first-generation rights if we conclude that traditional forms of litigation are unsuitable for enforcing second-generation rights? And, of course, is it possible to identify conditions under which the enforcement of second-generation rights is likely to be relatively more or relatively less successful?
Cite as: Mark Tushnet,
New Comparative Constitutional Scholarship on Enforcing Second Generation Rights, JOTWELL (February 8, 2012) (reviewing Octavio Luiz Motta Ferraz, Social and Economic Rights: Harming the Poor Through Social Rights Litigation: Lessons from Brazil, 59 Tex. L.Rev. 1643 (2011) and César Rodriguez-Garavito, Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America, 89 Tex. L. Rev. 1669 (2011)),
https://conlaw.jotwell.com/new-comparative-constitutional-scholarship-on-enforcing-second-generation-rights/.
Jan 6, 2012 Louis Michael Seidman
Presidents of the United States do not unilaterally extend their term of office, jail all their opponents, or rule by decree. The Supreme Court does not (or at least does not usually) declare its favored candidate to be President. Congress does not abolish the Supreme Court or create an official religion. Why not?
In an important new article, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657 (2011), Daryl Levinson reminds us that these familiar facts about our world are deeply perplexing and that the usual explanations for them are manifestly inadequate.
It is not as if the problem is new. At the founding, many of the framers disparaged “parchment barriers,” which, they thought , would do little or nothing to constrain self-interested government officials. James Madison’s famous solution to the problem was to divide power so as to create conflict between various institutions of government. This conflict, he thought, would provide built-in protection for minority rights.
As Levinson correctly points out, the Madisonian solution is woefully inadequate. First, there is no reason to suppose that individual actors will be loyal to the institution they find themselves in rather than to their political ends. A Democratic member of Congress who favors President Obama’s policies might well also favor extensive delegation of congressional power to the President as the best means to put those policies in place. Second, Madison’s solution works only if the institutional arrangements that produce conflict are themselves stable. But what, other than parchment barriers, prevents powerful political actors from overturning these arrangements?
Levinson improves on Madison’s solution by bringing modern tools of game theory, political science, and political psychology to bear on the problem. For example, in circumstances where everyone will benefit from coordinating their activities, it is possible for groups to develop strategies that, over time, prevent selfish defection. Thus, Democratic presidents leave office when their term ends in part because they fear that if they don’t, Republican Presidents will extend their terms.
Even when these strategies fail, existing political arrangements may be reinforced by a feedback loop. The arrangements serve to empower groups which, once empowered, use their power to protect those arrangements. For example, the Constitution’s free speech guarantees led to the creation of vast media enterprises that, in turn, have a vested interest in protecting free speech guarantees.
People also become acculturated to particular political arrangements and make investments that are premised on the continuing existence of those arrangements. As a constitution ages, these habits and commitments strengthen the bonds linking us to existing institutions and practices.
Levinson convincingly argues that unlovely, self-executing forces like these protect political stability in a way that neither parchment barriers nor mere moral obligation can. His argument therefore marks an important advance in legal and political theory. Indeed, for reasons that I describe below, the advance may be more important than Levinson himself realizes.
Where Levinson goes wrong, at least in my judgment, is in claiming that the forces he describes reinforce constitutional commitment. Instead of demonstrating why constitutions work, he has actually shown why they are unnecessary. Constitutionalists regularly claim that without constitutional obligation, our politics would quickly become tyrannical or chaotic or both. But all the phenomena that Levinson writes about work against tyranny and chaos whether or not there is a constitution. Indeed, Levinson’s central point is that moral obligation to obey constitutional commands is neither necessary nor sufficient to produce order and liberty. It is somewhat mysterious, then, why he thinks that his argument explains constitutional commitment.
To be sure, as Levinson argues, written constitutions sometimes serve as useful focal points. But, as he also points out, older constitutions inevitably become increasingly disconnected from social reality. An old constitution like ours might actually prevent us from reaching sensible and efficient solutions to our problems. For just this reason, in many cases we have abandoned the Constitution itself as a focal point and substituted, in its stead, judicial decisions, often far removed from constitutional commands, as a basis for political settlement. The Supreme Court’s decision in Bush v. Gore is only the most dramatic and notorious example of this pervasive phenomenon.
What Levinson has really accomplished, then, is quite revolutionary. He has shown us why the myth of constitutional obligation should be dispelled. There is simply no reason to believe that our social and political fabric would unravel if we gave up on the idea that we must obey commands written more than two centuries ago by people who knew nothing of our world. The sooner we recognize that these people have no solution for our modern problems, the sooner we can get on with the kind of serious and unfettered debate that holds out some hope of solving them.
Cite as: Louis Michael Seidman,
Parchment and Obligation, JOTWELL
(January 6, 2012) (reviewing Daryl Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124
Harv. L. Rev. 657 (2011)),
https://conlaw.jotwell.com/parchment-and-obligation/.
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.
