Cambian Rings of Constitutional Amendment

Jul 25, 2011 Charles Shanor3 comments

Charles Shanor

Can a constitution “live”? Is the alternative to a “living” constitution reinterpreted and modernized by judges a “dead” constitution hopelessly out of touch with modern realities? William Van Alstyne, in Clashing Visions of a “Living” Constitution critiques (nay, mocks) several schools of living constitutionalism and sets out what he believes is the one true path to a living constitution. This essay is lively, insightful, irreverent and makes an important, if not wholly novel, set of points. It reminds me anew why I have recommended Van Alstyne’s “critical guides” to Marbury and McCardle to Constitutional Law students for years.

The essay (originally a lecture) opens with musings on confirmation hearings for Supreme Court justices and the proper scope of judicial constitutional review. Acknowledging that there are many schools of constitutional interpretation, Van Alstyne looks at various schools associated with the notion that the United States Constitution is a “living” constitution. He examines non-interpretivists’ (non-original interpretivists’s? ) efforts to “free us from the despair of textual uncertainty” and “the tyranny of-and-the-futility-of endlessly-contestable history.”

Van Alstyne focuses particular scorn on one non-interpretivist, Bruce Ackerman, who famously elucidated a de facto constitutional amendment outside the process provided in Article V. Noting that various amendments to the U.S. Constitution as originally understood could not support the interpretations given them by the Supreme Court, Ackerman (in Van Alstyne’s prose):

at once went on, forcefully, to declare that the Court’s decisions could nonetheless be rightly seen as actually resting on solid and secure foundations, namely, foundations of “nontextual amendments” or, to give credit (where such credit is surely due!), to what one may—in my own view—call “Ackerman” amendments, and, accordingly, all those who enlist in this school of constitutional jurisprudence are perhaps best described either as “Ackerlytes” or even, perhaps, as “Ackolytes” (but surely not so churlishly, perhaps, as mere “Ackermaniacs”)…. [Changes brought about through the appointment process by a President who was thereafter reelected] serve as “real amendments.”  And so, accordingly, it would be inappropriate for any later Supreme Court to go back [on such amendments] … [T]his is the way—or at least one equally valid way—in which you keep the Constitution “alive.”

What rapier-like prose! Could Pope have done better? But, lest I digress, we should return to the basic argument.

Constitutionalists, says Van Alstyne, fall into two basic camps: “obligationists” and “opportunists.” Discussing the lively but well-worn example of Hugo Black, Van Alstyne says the former read (and re-read!) the Constitution’s text.  Obligationist judges take seriously the Article VI oath to “support and defend this Constitution, not some other.” Though they may differ on interpretations of a constitutional phrase, they are committed to a non-living interpretive task, the living constitution left by them with the people through the Article V amendment process. Opportunists, conversely, whether from the right or the left, interpret “suitably adaptable clauses” expansively, ignoring clauses not aligned to their desires.

Using the metaphor of visible cambian rings that record a tree’s growth, Van Alstyne says amendments to the US Constitution register changes in society. A healthy society should display these changes in formal amendments, not through sleight-of-hand and scarcely visible reinterpretations by unelected judges (whether or not their appointing presidents are reelected). Is our society healthy? Not by this measure, for an absence of cambian rings signals petrification. Today, he hypothesizes, there is a “negative synergy” for new textual amendments because the public is unwilling to entrust new constitutional texts to opportunist judges who might expand upon the meaning of any such public commitment.

The failed Equal Rights Amendment, which provided an opportunity for one such authentic constitutional cambian ring, is illustrative. Opponents, with some justification, argued that this amendment, expansively interpreted in ways wholly unintended, might remake cultural norms (including dress differences), weaken military muscle, and undermine institutions like the family, motherhood, and marriage. By contrast, argues Van Alstyne, the 19^th Amendment, which “gave” women the right to vote, was a reflection that women had already been voting in a majority of the states at the time of the amendment. The “stealth” 27^th Amendment, ratified from 1789 to 1992 by far more dead than living Americans, is hardly a ring, but at least it is “of no particular harm.”

Providing “an illustration central to the theme of this lecture in a contemporary setting,” Van Alstyne hypothesizes a federal statute that reduces jury size for federal court criminal cases to seven persons (from the current twelve). Functionalist supporters might say this reform would save costs or reduce the number of hung juries, perhaps helping to take criminals off the street. Functionalist opponents might say that the problem of costs to the criminal justice system comes from the proliferation of crimes, not the number of criminals, and that reduction of jury size violates the “personhood” of the defendant.

Were one to peruse the text of the 6^th Amendment, one would find a “right to trial by jury” but no jury size specification. Does failure to specify mean any size goes? Would a speech by James Madison introducing the Bill of Rights in the first Congress that said “any size is fine” close the case (even though notes of the speech may not be accurate and others may have disagreed with Madison, either in Congress or in state ratification discussions)? Since there was no such speech, might one look to the Article III provision–“the trial of all crimes except in impeachment shall be by jury,” to the debates at the Constitutional Convention, and to the ratification debates to see if anything was said about jury size. In the Virginia ratification convention, it turns out, there was discussion of the point, and Madison (reportedly) said that “jury” meant “12” as a technical term going back to Blackstone. This interpretation, apparently, was acceptable to skeptics.

How does this relate to confirmation of judges, the point of departure for Van Alstyne’s essay? The point, he says (as forcefully as Ackerman pushes nontextual amendments), is that the people will be loathe to turn any new amendment over to judges for interpretation unless those judges are obligationists. If judges (and constitutional law scholars) take as their mission to fashion the world into their constitutions rather than this constitution, new cambian rings will not be forthcoming. Confirmation processes will remain political cat fights between opportunistic senators of the left and right, and Congress itself will continue to be lazy concerning its own constitutional constraints.

Having for several years taught a seminar on constitutional amendment, I second these observations, as well as this parting concern: “That during the decades of my own (misbegotten?) most active academic years, we may have so far gotten accustomed to the ‘exogenous’ Constitution that the amendment process has itself begun to recede down a rabbit hole … and the country may frankly be not really better—but significantly less—well off on that account.”

Interestingly, the Supreme Court, on the one occasion when it considered what it means to be “attached to the principles of the Constitution of the United States,” concluded (albeit with some dissent), that this did not mean attached to rights of contract, compensation for property taken, free speech, freedom of religion, bearing arms, (unlimited) other rights, states having all powers not (narrowly) delegated, equal protection, or due process. Rather, said the Justices in Schneiderman v. United States, it means attachment to the Article V process of authentic, difficult, super-majoritarian, and peaceful change.  Now that’s a living constitution!

Federalism and Collective Action

Jun 20, 2011 Ilya Somin2 comments

Ilya Somin

Robert Cooter and Neil Siegel’s Collective Action Federalism is probably the most important academic article on constitutional federalism in several years. Cooter is one of the world’s leading law and economics scholars. Unfortunately, his work has not gotten the attention it deserves from constitutional theorists. Siegel is a leading constitutional law scholar in his own right.

In Collective Action Federalism, Cooter and Siegel argue that the congressional powers  enumerated in Article I, Section 8 of the Constitution should be interpreted in light of the goal of giving Congress the authority it needs to address collective action problems among the states. A collective action problem arises when members of a group want  a good, but have little or no incentive to contribute to its production, because they can instead try to free ride on  the efforts of others. This is likely to occur in cases where the good in question is a  “public good” for the group in question, one for which there is no way to prevent group members from consuming it even if they have not contributed to its provision.

Cooter and Siegel point out that the framers of the Constitution justified many of the powers enumerated in Article I as solutions to collective action problems among the states (though of course they did not use that terminology). For example, the power to raise and support armies was intended to provide the public good of national defense, which states often failed to contribute to under the Articles of Confederation. Similarly, the power to regulate interstate commerce was intended to be used to prevent states from adopting protectionist trade barriers against each other or impeding the movement of goods across their borders. Interstate free trade is a public good.

The authors argue that Article I, Section 8 should be treated as a “unified whole” rather than as a discrete set of unconnected individual powers. And they propose collective action theory as a unifying framework for interpreting that whole. Where there is an interstate collective action problem, they would give Congress the power to address it. Where no such problem exists, state power should be allowed to prevail.

Cooter and Siegel’s approach would lead to broad interpretations of congressional power in some areas, and relatively narrow ones in others. Currently, the Supreme Court interprets the power to regulate interstate Commerce in a way that gives Congress nearly unlimited power to regulate “economic activity,” while restricting its authority over “noneconomic” matters. Cooter and Siegel correctly point out that some forms of economic activity do not raise any interstate collective action problems, while some types of noneconomic activity do. With respect to the General Welfare Clause, their theory would uphold taxes and regulations that address collective action problems, while rejecting those that do not. In effect, they interpret the phrase “general welfare” as a synonym for “solving interstate collective action problems.”

The greatest strength of Cooter and Siegel’s analysis is that it accounts for the interconnections between the various congressional powers and expresses their underlying unity. As they point out, this has advantages under both originalist and nonoriginalist theories of interpretation. From an originalist standpoint, collective action federalism  dovetails with statements by the many Founders who argued that powers granted in Article I were intended to curb free-riding by state governments of the sort that had become a serious problem under the Articles of Confederation. For nonoriginalists, the theory has the virtue of taking account of modern economic analyses of federalism, most of which stress the key role of collective action problems.

Despite its impressive strengths, Cooter and Siegel’s analysis also has a few problems. It is far from clear that Article I really gives Congress unfettered authority to solve any and all collective action problems among the states. If that were the case, why would the Founders have bothered to carefully enumerate seventeen separate powers plus the Necessary and Proper Clause, instead of a single catch-all “Collective Action Clause?” To their credit, Cooter and Siegel foresaw this issue and tried to address it by arguing that the enumerated powers are not meant to be an exhaustive list, but an illustrative one. Yet it seems unlikely that a merely illustrative list would be so long and precisely detailed. Moreover, treating the list as illustrative renders the Necessary and Proper Clause superfluous. Under that approach, Congress would already have had the power to enact any measures “necessary” to solve any collective action problem, even if they were not specifically listed.

Second, Cooter and Siegel’s framework might actually negate certain specifically enumerated powers if it turns out that they are not needed to solve any collective action problems. Consider Congress’ power to  “establish post offices.” It is now clear that private firms such as Federal Express can deliver the mail just as effectively as the federal government, if not more so. And they can easily exclude would-be free riders who try to get away with not paying for postage. Does that render the US Postal Service unconstitutional?

Most importantly, Cooter and Siegel do not consider the possibility that the Constitution should be interpreted to curtail federal government policies that create “public bads,” as well as facilitate those that provide public goods. Just as Congress can solve collective action problems, it can also create them. To take one common case, it can enact special interest legislation that benefits small, well-organized groups at the expense of the general public. The repeal of such laws then becomes a nationwide collective action problem, one that the public often fails to solve because individual citizens and states have strong incentives to free ride on such matters. Curtailing such interest group legislation is one possible rationale for interpreting Congress’ enumerated powers relatively narrowly. Obviously, state governments often enact harmful special interest legislation of their own. But only Congress can impose such  a law on the entire nation at one fell swoop.

The famous 1942 case of Wickard v. Filburn illustrates this dilemma well. Wickard ruled that the interstate Commerce Clause authorized Congressional legislation that restricted wheat production even in cases where the wheat in question had never crossed state lines or been sold in any market. Cooter and Siegel endorse Wickard because the law in question solved a collective action problem among the states. Many state governments wanted to raise the price of wheat in order to assist farm interests. But none could do so individually, because of the risk that their efforts would be undercut by competition from other states.

At the same time, however, the law upheld in Wickard also created a severe collective action problem. By artificially raising the price of food in the midst of the Great Depression, it increased the suffering of consumers, particularly the poor — many of whom already found it difficult to purchase adequate amounts of food. Because consumers faced severe collective action costs and in many cases did not even realize that the new law had harmed them (voter knowledge of the effects of federal policy is itself a nationwide public good), they were not able to mobilize against it effectively. Wheat production restrictions that were a public good for farm states turned out to be a public bad for consumers and also for nonagricultural states whose economies were damaged by the price increases.

Cooter and Siegel rightly argue that  “[a] federal constitution ideally gives the central and state governments the power to do what each does best.” But a federal constitution must also protect against the dangers posed by both state and federal power. A powerful central government is often “best” at solving national collective action problems. But it is also often the “best” at creating them. State governments acting on their own could never have established a nationwide wheat cartel that victimized poor consumers for the benefit of politically powerful farm interests. A more comprehensive collective action approach to constitutional federalism must consider both sides of this dilemma.

Despite these reservations, Cooter and Siegel’s work is a major contribution to the debate over federalism, and helps set the agenda for future scholarship. It is hardly fair to ask any one article to do more. Future writers will need to more fully consider the extent to which collective action theory sheds light on the appropriate scope of specific federal powers. They should also take due account of the danger posed by federally mandated “public bads.”

The Constitution’s Pocket Part

Mar 28, 2011 Paul HorwitzAdd a Comment

Paul Horwitz

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

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

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

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

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

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

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

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

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

A Private Law Insight into a Public Law Problem?

Feb 17, 2011 Heather GerkenAdd a Comment

Heather Gerken

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

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

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

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

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

Speech and Markets

Jan 19, 2011 Louis Michael SeidmanAdd a Comment

Louis Michael Seidman

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

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

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

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

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

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

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

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

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

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

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

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

Why Protect Falsity?

Dec 20, 2010 Mark TushnetAdd a Comment

Mark Tushnet

Free speech theory has neglected – to the point where it is almost an embarrassment – the treatment of false statements of fact as such (that is, where they do not injure reputation).  The Supreme Court has declared that no First Amendment value attaches to false statements of fact – and that there is no such thing, under the First Amendment, as a false idea.  One reason for the theoretical neglect of false statements of fact may be that the examples that come to mind blend questions of fact and “ideas” (think of global warming and evolution).  Another reason may lie in the chilling-effect argument – that the First Amendment requires that statements themselves lacking First Amendment value, such as false statements of fact, sometimes be immunized from liability out of fear that imperfections in the system of imposing liability will lead speakers to refrain from making true statements because they are worried that a decision-maker might wrongly conclude that the statements were false.

Frederick Schauer’s Nimmer Lecture does some essential ground-clearing on the basic theoretical questions.  With his usual analytic care and clarity, Schauer distinguishes between basic facts and opinions, and defends the sensible anti-post-modern proposition that not all facts are socially constructed.  The latter is particularly important because there is an understandable tendency to pose questions about regulation of false statements of fact by imagining when the government might want to impose liability, and the usual answers, at least in the United States, do touch on issues where post-modern anxieties might be well-placed (again, think global warming and evolution and even Holocaust denial, though Schauer contends otherwise as to the last).

Concerns about the chilling effect seem to be absent, or at least much weaker, when liability is imposed for lying – that is, for making false statements that the speaker believes to be false.  (Weaker, perhaps, because there may be imperfections in determining whether the speaker had the required intent to lie.)  One is hard-pressed to explain how the utterance of factual statements known to be false contributes to the discovery of truth, or to a well-functioning system of democratic self-governance.  One can struggle to make Mill’s argument, that the very effort to refute false statements will strengthen a person’s commitment to the true statement, coherent:  Maybe a person who believes something because she read it on Wikipedia will believe it “more” or “better” if, after being challenged by someone knowing the facts to be as the target believes them to be, she goes to three or four other confirmatory sources – but there’s some cost to “strengthening” the truth in the face of lies in that manner.

Personal autonomy is another matter.  Everyone lies about something (“What were you doing before you came home at midnight last night?”), and giving the government the power to impose liability for such daily lies raises the specter of “1984.”  This, which I call the “Don Draper” scenario (or, for an older version, the “Huck Finn” scenario on lighting out for the territories), is perhaps a better case for protecting deliberate untruths about oneself.  Whether the best doctrinal home for this concern is the First Amendment is, I think, questionable; doctrines directly responsive to personal autonomy and privacy are more suitable, in my view.

Schauer shows that the government actually does impose liability for false statements of fact more often than the subject’s theoretical neglect might suggest.  False statements under oath can be perjury; false advertising is prohibited; as Schauer has insisted again and again, false statements made in connection with the issuance of securities are criminalized; and nobody thinks that people should have a First Amendment defense to resume fraud.  We can wave our hands about some of these, saying that they involve commercial speech, which is subject to lower standards of First Amendment review, and we can deal with perjury by saying that imposing liability for perjury satisfies whatever high standard of review we might want to invoke.  The anti-paternalism theme in recent commercial speech doctrine, coupled with the idea that the preferred remedy for “bad” – here, false – speech is more speech, suggest to me that there’s more hand-waving going on than serious analytic inquiry.

Schauer exposes another reason for the neglect of false statements of fact in free speech theory.  Regulation typically occurs in contexts where doctrine offers easy answers:  commercial speech, or political campaigns where the line between fact and opinion may be exceedingly thin.  So, to frame the problem clearly we need to think about situations in which a reasonable government might want to regulate false factual statements as such.  Here’s one possibility:  A board of education wants to encourage the children in its schools to aspire to academic excellence, and adopts a program that uses exemplars of academic achievement to encourage those aspirations – well-known figures who were Rhodes Scholars or members of Phi Beta Kappa.  A civic activist in town, well-known as someone who rarely has much to contribute to public discourse, falsely states that he was a Rhodes Scholar.  Prodded by the school board, the city council makes it a misdemeanor to (intentionally) falsely represent that you have won one of a list of academic honors.  Should the civic activist have a First Amendment defense?

The example is not entirely hypothetical.  Two federal courts of appeals have held unconstitutional the Stolen Valor Act, which makes it a federal crime to state, falsely, that you have won a Congressional Medal of Honor and some other military honors.  I expect that the Supreme Court will take up the question soon.  Schauer’s essay shows that the question the statute poses is genuinely novel within First Amendment theory and doctrine.  It will provide the Justices – or at least their law clerks – with some important conceptual tools to apply to the problem.

Pirates Then and Now

Nov 24, 2010 Samuel IssacharoffAdd a Comment

Samuel Issacharoff

Eugene Kontorovich has struggled to return the outlawry of pirates to the legal agenda.  Admittedly, he has had some assistance from brigands off the coast of Somalia and in the Indonesian Straits of Malacca.  Nonetheless, as world attention turns to the indeterminate status of non-state actors who practice a form of warfare unencumbered by uniforms, the principle of distinction from civilians, or any of the evolved norms of respect for civilians, medical personnel and countless other features of the law of war, the legacy of clear international legal rules governing pirates seems like an attractive safe harbor.  Surely nothing is more settled than the fact that pirates are hostis humani generis, enemies of all mankind, for whom jurisdiction is universal and punishment merciless.

Or so it would seem.  As Kontorovich well tells the tale, in the intervening centuries many international conventions have emerged reflecting both more sophisticated international relations and the emergence of human rights norms.  Among these are the Geneva Conventions, other sources of international humanitarian law, refugee laws, and international laws of the seas. 

Kontorovich notes:

None of these measures were designed to obstruct antipiracy efforts; the conventions were generally adopted without any thought about a resurgence of high sea piracy.  But the growth of international legal norms that limit state authority and provide greater protection for individuals make it harder for nations to perform the oldest and perhaps most basic law enforcement function in international law: preventing privacy. (P. 246.)

Kontorovich’s examination of the current difficulties in prosecuting pirates, even as domestic criminal laws clearly cover such acts, is a cautionary tale about the assumption that inherited categories of either international law or ordinary criminal law can well address the problem of non-state terrorism. Consider the case of five Somalis picked up by a Dutch navy detachment patrolling the Somali coast and called upon to defend a ship registered in the Dutch Antilles.  The five were charged under a 17^th century law addressing “sea robbery.”  During the capture, however, the pirate vessel was sunk, together with all the incriminating evidence.  The Somalis were defended under the modern criminal procedure of the Netherlands, including challenges to the lack of evidence, and sentenced under its lenient criminal laws, which include consideration of the economic plight of Somalia.  The pirates received five-year sentences, minus time served, a far cry from the customary execution of pirates.  In the meantime, the pirates have asked for asylum and for the right to have their extended families immigrate to the Netherlands.

The difficulty of transposing piracy from a simpler era to the modern world of procedural rights and individual protections is a great cautionary tale for the simple solutions to the problem of international terrorism.  Much of the debate on the detention and prosecution of terrorists takes the form of a battle over categories, with the assumption that with the category comes the answer.  Either suspected terrorists are criminals, or they are unlawful combatants outside the bounds of international humanitarian law.  The civil libertarian left argues the first position and assumes that domestic prosecution follows.  The Bush administration took the second position, and then claimed that there were accordingly no legal restraints.  The Obama administration has uncomfortably tried to find a way to steer between both poles.  With each position comes a bending of categories, either through the expansion of inchoate crimes of material aid to terrorism, or through the unseemly use of detentions in violation of the common articles of the Geneva Conventions.  Others have taken up the resulting “juridification” of the attempt to reduce war to the domain of criminal law (the term is from the excellent discussion in Gerry Simpson’s, Law, War & Crime).  Kontorovich’s is the most careful examination of the original source of transnational prosecution of piracy.

A look back at the laws against piracy shows how little is resolved by the war of categories.    For all the development of international law, its command is seriously compromised if “it cannot respond effectively to an atavism like piracy.”  (P. 275.)  Even resolved categories do not capture the nuances of the intersection between national enforcement and international law.  To his credit, Kontorovich uses the fight with piracy to illuminate rather than resolve the more difficult questions of prolonged fights against international terrorist groups.  The sense of international outlawry applies to both groups, but the common ground does not obliterate the differences between primarily financial actors and those motivated by ideology and religion.  If new legal paradigms are needed to deal with pirates it follows that much work remains to address properly the new threat of international terrorism.

The Good, the Bad and (Perhaps) the Ugly of a Populist Court

Nov 10, 2010 Edward RubinAdd a Comment

Edward Rubin

In a field that crackles with normativity, David Strauss has written an article that provides a genuinely illuminating description of the rationale that underlies many recent Supreme Court decisions.  The Court, he argues, often follows a principle that he describes as “modernizing.”  This consists of two basic elements.  The first is that the Court will apply a sort of strict scrutiny to any statute it regards as “out of step with current popular sentiment” and will invalidate the statute if there is any possible doctrinal ground for doing so.  The second element is that the Court will reconsider its decision if subsequent events show that its conclusion was mistaken and that the statute actually had popular support.  Modernization is rarely invoked as the sole basis for a decision, according to Strauss, but it is not a subconscious tropism or a clandestine connivance either.  Rather, it functions as a supporting principle that appears regularly in the opinion’s rationale.

Strauss supports his observation with an extensive and thoughtful survey of recent Court decisions.  Exhibit A for the first element of modernization are the Court’s Eighth Amendment decisions, specifically Roper v. Simmons (forbidding execution of a minor), Atkins v. Virginia (forbidding execution of a mentally retarded person), and Kennedy v. Louisiana (forbidding execution for the non-lethal rape of a child).  In all these cases, the Court noted that the death penalty was an archaic provision that conflicted with the general tenor of popular opinion.  Exhibit A for the second element of modernization are the 1972 decision in Furman v. Georgia, where the Court declared capital punishment to be cruel and unusual, and the 1976 retrenchments, including Gregg v. Georgia, where the Court upheld the death penalty after 35 states reenacted death penalty statutes.  Other cases that reveal the Court’s modernizing inclinations include Virginia v. U.S., which struck down VMI’s refusal to admit women, Griswold v. Connecticut, and Lawrence v. Texas.  Strauss includes some other cases that push his point a bit too far, such as Moore v. City of East Cleveland, but, generally speaking, he makes his case in a convincing manner.

Since this is a constitutional law article, it would be genuinely weird to end it after advancing a descriptive observation and have nothing normative to say.  So Strauss goes on to provide an assessment of the pattern that he has discerned.  But he resists the natural temptation to tout his astute observation as a solution to the dilemma of judicial review or to condemn it as evidence that the institution should be abolished in its entirety.  Modernization, he notes, has some good features and some bad features.  One of its good features is that its first element (invalidating archaic statutes) serves a democracy-reinforcing function; it overturns laws that the public does not want but that survive due to the institutional inertia that afflicts the legislative process.  Another good feature of modernization is that its second element (retrenchment in the face of renewed support) defers to the political process; if the Court has misjudged popular sentiment, it stands ready to reverse itself.  These two features track two of the basic principles of the Legal Process School, the first being essentially Carolene Products footnote 4 and the Choper-Ely analysis, the second being akin to Bickel’s passive virtues.  They raise the issue of judicial competence, of course, but Strauss responds by noting that modernization “resembles the traditional role of common law courts,” a point he has made in his previous writing about the constitutional decision making process generally.  (In a remarkable display of academic self-restraint, he declines to cite himself; the Strauss whose article appears in the footnotes to this section is Peter).

There is also, Strauss notes, a serious disadvantage to the modernizing approach.  “The problem is that the courts may be too ready to yield to the political process and may therefore fail to vindicate principles that courts, and courts alone, are well suited to enforce.”  (P. 900). This strikes me as a crucial point, perhaps because I agree with it (I don’t really agree with Strauss about the good features of modernization because they rely on the concept of “democracy” and the U.S. isn’t really a “democracy” – it is a representative republic).  The reason I like Strauss’ critique of modernization is that it resists what I would call the Populist turn in modern constitutional theory.  Both originalist and evolutionary theories have acquired a strongly Populist flavor in recent years.  The older approach to originalism focused on the intent of the Framers, members of a narrow elite in terms of either wealth or education.  Its new version rests on the beliefs of the ratifying public, that is, everyone who possessed the franchise when the document was submitted for approval.   Similarly, evolutionary theories were traditionally based on the judiciary’s special skills, theirtraining as members of an exclusive profession.  Current evolutionary theories, in contrast, look to public attitudes, as reflected in observable events such as social movements, decisive elections or public discourse.

The turn to Populism solves certain difficulties that have bedeviled both originalist and evolutionary theories.  It frees originalism from the unseemly ancestor worship directed toward a small group of propertied, often slave-holding quasi-aristocrats.  It frees evolutionists from relying on the judgments of a narrow class of elderly, upper middle class or wealthy jurists, whose ability to discern public sentiments is open to serious question.  But these advantages come at a severe cost; they undermine the basic value of judicial review, the value that had led to its inclusion in virtually every modern constitution throughout the world.  Judicial review is the first legally established mechanism in the Western World (and perhaps the first since the Hebrew prophets) that can effectively control the public authority that possesses Weber’s monopoly of legitimate force.  In effect, it domesticates the right of revolution that Western political philosophers have been championing for the past millennium, without having the slightest idea how to effectuate.

Of course judicial review is counter-majoritarian, to invoke the Legal Process School once more, but that is its point.  It is designed to impose socially accepted norms on the governing force in the society, to restrain the inevitable tendency of any ruler to betray the basic principles on which its rule is based.  Admittedly, the review is being carried out by an elite, but so is every other governmental function in any system apart from direct democracy, which is a mode of governance that has never been successfully applied to anything larger than a village.  The leading officials in the political branches – the President, the Cabinet, the agency heads, the legislators – are all equally members of the elite.  The poor or working class can never elect their own members to the legislature, because as soon as they are elected, they cease being poor or working class.

Populist theories have become so popular these days, particularly for evolutionary theorists (among whom Strauss obviously belongs), that I genuinely expected him to proceed from his description of modernization to an encomium on its behalf.  I was genuinely surprised when he followed the account of the advantages of modernization – a discussion that depends heavily on Populist thinking – with a criticism of the pattern that he has discovered.  It is not easy, these days, to write something about judicial review that is genuinely illuminating, but to write something that is not only illuminating but surprising is a rare thing indeed.  That’s why Strauss’ article is something I like lots.

The Court and Politics: What Is The Lesson of FDR’s Confrontation with the Court?

Sep 23, 2010 Richard Pildes1 comment

Richard Pildes

For decades after Alexander Bickel’s work, concern with the “countermajoritarian difficulty”– the question of how to justify judicial review in a democratic society–dominated American constitutional scholarship. In recent years, a number of commentators and legal scholars, most significantly my colleague Barry Friedman in his magisterial recent book, The Will of the People, have sought to dissolve this question or suggest it is passé. They argue that there is, as a matter of history and fact, no countermajoritarian difficulty about which to worry. The Supreme Court cannot and does not stray too far from “mainstream public opinion.” If it does, larger political forces bring the Court back into line; the Justices, knowing this, do not wander far. And a central chapter in this new story is the Court’s dramatic confrontation with the New Deal, in which the Court eventually bowed in the face of the New Deal’s transformative constitutional vision.

“The lesson of 1937” is central to modern American constitutional history, as well as to the self-understanding of constitutional law and theory today. But what exactly is that lesson? The conventional takeaway is that public opinion controls the Court. I would recast that wisdom by building in many more qualifications: in a sustained conflict, concerning the most momentous issues of the day, between the Court and an overwhelming consensus across the political branches and the public, the Court will eventually lose if a President gets enough appointments to seize control of the Court. The importance of Jeff Sheshol’s engrossing new book, Supreme Power, is that it shows just how importantis each and every one of those qualifiers. Sheshol’s book has received plenty of (deservedly glowing) attention already, but I write about it here because I do not think its implications for understanding the relationship between the Court and politics have been properly appreciated. Far from confirming the conventional view about “the lesson of 1937,” Supreme Power can be read as turning that lesson on its head: Supreme Power shows that judicial review can remain remarkably independent and countermajoritarian, for only a concatenation of the most extraordinary circumstances will provoke politics and public opinion into imposing major constraints on the modern Court.

First, Supreme Power reveals (or teaches us) just how breathtaking was the Court’s challenge to the political branches. We are all aware of the major highlights–the Court’s invalidation of the National Industrial Recovery Act (NIRA) or the Agricultural Adjustment Act (AAA). But consider the range of national and state legislation or Presidential action the Court held unconstitutional in one seventeen-month period starting in January, 1935: the NIRA, both its Codes of Fair Competition, and the President’s power to control the flow of contraband oil across state lines; the Railroad Retirement Act; the Frazier-Lemke Farm Mortgage Moratorium Act; the effort of the President to get the administrative agencies to reflect his political vision (Humphrey’s Executor); the Home Owners’ Loan Act; a federal tax on liquor dealers; the AAA; efforts of the new SEC’s attempt to subpoena records to enforce the securities laws; the Guffey Coal Act; the Municipal Bankruptcy Act, which Congress passed to enable local governments to use the bankruptcy process; and, ultimately in Morehead v. Tipaldo, minimum-wage laws on the books in a third of the states, in some cases, for decades (some of these decisions have withstood the test of time, but most, of course, have not). In the summer of 1935, Shesol notes, more than 100 district judges held Acts of Congress unconstitutional, issuing more than 1,600 injunctions against New Deal legislation. Moreover, at least some of these issues cut to the bone of the average person; a window into the salience of the Court’s actions is provided in the comments of the founder of the ACLU, at a town meeting, who said: “Something is seething in America today. . . . We are either going to get out of this mess by a change in the Court or with machine guns on street corners.” What would the modern Court have to do, and in what context, to come close to all this?

Yet even so, Supreme Power provides a rich retelling of how vehement, geographically widespread, and bipartisan the resistance was to FDR’s legislative assault on the Court. FDR’s Court-packing plan was in dire shape politically long before the Court’s “switch in time” took the last wind out of that effort–despite the fact, as well, that the plan was the first piece of legislation FDR put forward after having just won the biggest landslide in American history. Two-thirds of the newspapers that had endorsed FDR came out immediately and vociferously against the plan. The most common charge was that FDR was seeking “dictatorial powers,” a particularly resonant charge. Telegrams to Congress, a leading gauge of public opinion at the time, flowed overwhelmingly, and with passionate intensity, against the plan. Some leading Progressive Democrats in the Senate, like Hiram Johnson and George Norris, quickly bolted from FDR and defended the Court’s independence; conservative Democrats wanted no part of the plan; a leading Western Democrat, Senator Wheeler, announced he would lead the fight against the plan; FDR’s Vice President did little to conceal his disdain for Court packing; Republicans sat silently and let the Democratic Party tear itself apart. And the Court, too, has tools to fight back: Chief Justice Hughes sent a letter, with devastating effect, to the Senate Judiciary committee that took apart FDR’s justifications for Court-packing.

We cannot know, of course, whether FDR would ultimately have prevailed, had the Court’s decisions not started to change course. But more remarkably, here was the most popular President in history, with a Congress his party controlled overwhelmingly, confronted by the most aggressive Court in American history – and yet, it is entirely plausible that FDR’s legislative challenge to the authority of the Court would have failed, given how deep the cultural and political support was for the Court’s institutional authority, even as the Court issued one unpopular decision after another.

And finally, consider the aftermath of the confrontation: who won the Court-packing fight? The conventional wisdom among constitutional academics, focused narrowly on the Court itself, is that FDR lost the battle, but won the war, since the Court (assisted by 7 FDR appointments between 1937-43), acceded to the New Deal’s constitutionality. But FDR’s legislative assault on the Court destroyed his political coalition, in Congress and nationally, and ended his ability to enact major domestic policy legislation, despite his huge electoral triumph in 1936. As a Fortune magazine poll in July 1937 put it: “The Supreme Court struggle had cut into the President’s popularity as no other issue ever had.” National health-care, the next major item on FDR’s agenda, faded away. The progressive domestic policy agenda did not recover until 1964. Reflecting back, FDR’s second Vice President, Henry Wallace, observed: “The whole New Deal really went up in smoke as a result of the Supreme Court fight.” No rational politician, looking back at FDR’s attempt to bring the Court into line, other than through the ordinary appointments process, is likely to repeat FDR’s efforts.

Thus, in light of Supreme Power, one can read the 1937 experience as suggesting that, for better or worse, judicial independence and the authority of the Court have become so entrenched in America that even the most popular politicians play with fire if they seek too directly to take on the power of the Court. As indicated by the recent case, Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), in which the Court held unconstitutional the bipartisan McCain-Feingold Act’s restrictions on corporate electioneering, the Court retains far more latitude to act in countermajoritarian ways than overly reductionist versions of the “majoritarian” view of the Court might suggest. If a President is lucky to have enough appointments to control the Court, the Court will likely come to reflect the President’s agenda; but that is a matter of luck, not inevitability, and short of that, it is far from clear how likely or effective any other political attempts to hold the Court to account will be. Supreme Power is a galvanizing read, full of arresting detail about a subject I wrongly assumed I knew more than enough about, but it also poses a sobering challenge to the view that the Court is inevitably constrained to be a “majoritarian” institution.

Reversing by Degrees

Aug 19, 2010 Paul Horwitz1 comment

Paul Horwitz

One of the favorite accusations lobbed against the Roberts Court by its critics is that it frequently engages in “stealth overruling.”  It carves away at old precedents without expressly rejecting them, distorting them or limiting them to their facts and leaving them undone in all but name.  In the view of the modern Court’s critics, this is a new and very bad habit.  To repurpose the famous “umpire” analogy offered by Chief Justice Roberts at his confirmation hearings, it is like watching an umpire manipulating the strike zone until it is sometimes as large as the Solar System and sometimes as narrow as the eye of the needle.  Not many sports fans like umpires, but we can admire them for doing their job.  Not so when we believe they are finding ways to cheat the system and bend the rules.   It is far from clear that stealth overruling is new, and it can be used to what most of us agree is good effect: the Court spent decades removing the ground from underneath Plessy v. Ferguson, one brick at a time, until it was ready to topple with the slightest push.  To understand stealth overruling as more than a useful rhetorical stick with which to beat the Roberts Court, we must understand better what a stealth overruling is and what costs and benefits are involved.

That is the goal of The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), a fine new piece by Professor Barry Friedman of New York University School of Law.  By making stealth overruling an object of careful academic study, Friedman hopes to make its nature more apparent and make possible a “normative judgment” of the phenomenon “based on facts, not speculation.”  It is a worthy goal, and Friedman largely rises to the task.  One will come away from his article with a clearer and less passion-clouded view of what stealth overruling involves and why we might disapprove of it.  I want to suggest, however, that there are some internal problems with Friedman’s account, and one big question mark.  And I want to suggest an alternative account of what is troubling about stealth overrulings, one that is more closely connected to broader problems of constitutional jurisprudence than Friedman’s article suggests.

Using a variety of modern cases, and focusing heavily on subsequent developments undercutting the Court’s famous ruling in Miranda, Friedman offers a reasonable definition of stealth overruling.  Stealth overruling, he says, falls somewhere on the middle of the spectrum between openly overruling a prior precedent and enthusiastically reaffirming it.  It resembles overruling a prior precedent sub silentio, but a sub silentio overruling may be the result of a lack of awareness of the implications of one’s present ruling.  Stealth overruling, by contrast, is a deliberate attempt to hollow out or drastically confine a prior ruling beyond any logic in the prior precedent itself, in order to reap the benefits of overruling without incurring the costs.  When they engage in stealth overruling, Friedman says, “the justices are perfectly aware that they are overruling, but hide that fact that they are doing so.”  Stealth overruling is thus defined as the failure to honor a prior precedent, either by “drawing distinctions that are unfaithful to the prior precedent’s rationale” or reducing it to its facts, in circumstances in which the justices “know better, such that their decisions are in fact ‘dissembling.’”  This is an excellent definition.

Why engage in stealth overruling?  Friedman rejects two possible arguments – that it is a function of judicial minimalism or a product of the old institutional problem of counting to five – and settles on a third: justices engage in stealth overruling when they wish to avoid the negative publicity that an explicit overruling might engender.  Friedman’s focus here, consistently with his recent work, is on public opinion.  Lower courts and officials, he says, are not stupid: they get the message of stealth overrulings loud and clear.  Courts and police officers alike have understood that what Friedman and others call the stealth overruling of Miranda means that law enforcement officers can violate the older precedent without any negative consequences.  But the public’s temper may be subdued if the Court is subtle about what it is doing.  The Court, he says, uses stealth overrulings to send two different messages to two separate audiences: one of change to the professionals, and one of stability and adherence to the law to the masses.

The costs of this approach, according to Friedman, are significant.  Stealth overrulings sow doctrinal confusion in the lower courts, and encourage courts and officials to defy its earlier precedents.  More important, for Friedman, it removes the public from a genuine partnership with the Court.  It “obscures the path of constitutional law from public view, allowing the Court to alter constitutional meaning without public supervision.”  We would be better off, he suggests, if the Court were open in overruling its prior precedents, so that a public dialogue might take place about the actual meaning of our Constitution.

There is much to chew over in Friedman’s piece.  Many will find both his diagnosis and his normative conclusions compelling.  And, without quite putting it in these terms, Friedman’s piece suggests one interesting conclusion: that, despite talk (including by the Justices themselves) about the ascendancy of originalism in constitutional interpretation, the unwillingness of most members of the Court, including its two most recent conservative additions, to explicitly overrule what they think are misguided precedents suggests that, far from being originalists, they are actually common-law constitutionalists, caught up in the business of interpreting (or distorting) prior precedents rather than reducing constitutional questions to first principles.  This is an important way to better understand the nature, virtues, and vices of the Roberts Court.

That said, there are reasons to doubt Friedman’s conclusions.  The first, of course, and it is one that has been raised elsewhere about Friedman’s approach, is that it is not clear how much weight public opinion about the Court actually carries, either among the public or with the Court itself.  It has some importance, surely, especially over the long run.  But stealth overrulings are designed for the short run.  If the Court goes about quietly eviscerating its precedents long enough, people will notice; we notice avalanches too, even if we do not see all the gradual accumulation of snow that finally triggers them.  In the short run, however, and quite reasonably, it is not clear how much the general public knows or cares about the Court.  I do not mean to deny altogether the relationship between public opinion and what the Court does.  But it is translated through a slow and subtle process of political representation, not in a more direct fashion.  So it is not clear that public opinion is a sufficiently robust explanation of stealth overrulings.

Moreover, there are some apparent tensions or contradictions in Friedman’s account.  On the one hand, Friedman suggests that lower courts and other government officials understand full well the import of a stealth overruling.  They do not need to be knocked over the head with a sentence like “that case is now overruled” to figure out what is going on.  Only the public is none the wiser.  On the other hand, he writes that stealth overruling “confuses existing doctrine, making it difficult for officials and lower courts to decide like cases alike, thereby threatening the rule of law.”  In one version, then, the Court’s professional audience is composed of sophisticated sorts who are adept at reading the Court’s entrails; in the other version, they are lost without a map.  Both cannot be true.

If Friedman has not quite succeeded in making a convincing case for his own account of the causes and consequences of stealth overruling, that does not mean he has not identified an important phenomenon.  But we might give some thought to an alternative account of stealth overruling, one that is more closely tied to a fundamental problem of jurisprudence.  As Friedman’s NYU colleague Rick Hills has observed, judges and legal scholars have a “deeply felt desire . . . to achieve noninstrumental certainty in the law.”  They are called “to hunt for the Snark of ‘pure,’ noninstrumental constitutional value.”  That quest is doomed.  Courts routinely find that some subsequent change in fact or context defies their efforts to put the law in neat and legally pure terms.  The law can only bend so far before it breaks against the demands of the real world.  But judges are especially reluctant to openly abandon the Siren call of doctrinal purity.  Whether they are being genuinely responsive to new contexts or, as in the case of some of the Roberts Court’s decisions, merely deviously rerouting the path of constitutional law, they are unwilling to concede that the usual doctrinal tools do not get them as far as they want.

In this sense, stealth overruling is just a particularly glaring bad-faith example of what courts do all the time.  Stealth overruling is one cause of doctrinal confusion, but not the only one.  Our love of doctrine itself, and especially our lawyers’ faith that pure legal doctrine and our own technical genius provides the answers to all our questions, is the real culprit.  As long as we keep that faith, we should have every reason to expect that our doctrine will outrun reality, and that confusion, inconsistency, and disingenuousness will result.  Stealth overruling is thus just a particularly egregious instance of a much larger problem in constitutional law.