The Journal of Things We Like (Lots)
Select Page

The Value and Limits of Free Exercise Doctrinalism

  • Frederick Mark Gedicks, Identifying ‘Substantial’ Burdens: How Courts May (and Why They Must) Judge Burdens on Religion under RFRA, G.W. L. Rev. (forthcoming, 2016), available at SSRN.
  • Michael A. Helfand, Identifying Substantial Burdens, U. Ill. L. Rev. (forthcoming, 2016), available at SSRN.

In recent years, a lot of the best and most interesting scholarship on law and religion has been on the theoretical side. A good deal of thought and ink has been spent, for example, asking whether religion is “special” for purposes of constitutional law, or whether there is not (or no longer) a sufficient or justifiable distinction between religious beliefs and other closely held beliefs. Certainly that question can have a powerful payoff in the law, but for the most part writers addressing that question have treated it at a higher level of abstraction, and acknowledged that the question might be viewed differently and answered more prosaically with the specific text, history, and jurisprudence of the United States Constitution in mind.

Now, it appears, we are back to doctrine—and, more specifically, free exercise doctrine, whether constitutional or, and perhaps especially, statutory. The two pieces discussed here—Frederick Mark Gedicks’s Identifying ‘Substantial’ Burdens: How Courts May (and Why They Must) Judge Burdens on Religion under RFRA, and Michael A. Helfand’s Identifying Substantial Burdens—are fine examples of the phenomenon.

The period roughly from the 1980s through the last decade saw a good deal of discussion and development of Establishment Clause doctrine, with a focus on equality or neutrality as the central principle of that clause and reams of opinions and articles working out the doctrinal implications of that approach. It may seem odd to say that Free Exercise Clause doctrine received less attention, given the enormous importance of the Supreme Court’s 1991 decision in Employment Division v. Smith and the passage of the Religious Freedom Restoration Act of 1993. Nevertheless, Smith purported to shrink dramatically the opportunity to bring Free Exercise claims at all, and a good deal of the discussion of Smith and its implications was more theoretical than doctrinal.

But the Supreme Court’s closely divided decision in Burwell v. Hobby Lobby Stores, Inc. has led both courts and church-state scholars to refocus their energies on the doctrine of the Free Exercise Clause—or the doctrine of RFRA, which itself recapitulates (to a contested degree) the earlier doctrine of the Free Exercise Clause. As if that were not enough, the Court again faces a RFRA case—Zubik v. Burwell, dealing with accommodations for religious non-profit organizations—whose determination will require it to clarify RFRA, and Free Exercise, doctrine. Theory is again in the eclipse, and the mechanics of legal doctrine back under the microscope.

The two articles reviewed here are excellent examples of the genre of Free Exercise doctrinalism. Both focus on the same question or questions, the very questions that the Court’s decision in Zubik may turn on as well: What is the meaning of a “substantial burden” under RFRA, and what is the role of judges in answering that question? They provide a superb examination of these questions and propose sensible answers. They demonstrate the value of good doctrinal scholarship. They also, I think, underscore its limitations, and the theoretical and political questions—above all, the question of power and who gets to exercise it—that lurk behind every piece of doctrinal work.

To state the problem already puts us squarely in the realm of doctrinalism and the larger questions it poses. The Free Exercise Clause says that “Congress shall make no law . . . prohibiting the free exercise” of religion. Textually, it does not require a burden, let alone a substantial burden. But courts engaged in judicial review understandably desire to coordinate their actions with each other, provide clear and workable guidelines for citizens and governments, and offer stability and predictability in the law. As government officers and wielders of state power, they also want the governmental project to work, in some fashion. And as lawyers and judges, they are acculturated to think in legal (or legalistic) terms, employing the language and technology of law. Any search for what the Court has famously called “judicially manageable standards” takes us into the thickets of doctrine. As constitutional law teachers know, after a few steps one is surrounded by those thickets. The constitutional text itself, or overarching principles, can become barely a memory. But those questions remain, of course. Courts want judicially manageable standards—but “manageable” according to what metric? In service of what constitutional goal or value? And decided by whom?

RFRA takes us one important step away from those questions, to be sure: Unlike the Free Exercise Clause, it does impose the specific instruction that government must not “substantially burden[ ] a person’s religious exercise.” As both Gedicks and Helfand note, the Free Exercise cases whose purported “restoration” lies at the heart of RFRA do not provide much clear guidance about what constitutes a substantial burden. A common way to think about the substantial burden test, Gedicks observes, is to divide it into two questions: “(i) the suffering of ‘substantial religious costs’ if the claimant complies with the burdensome law, and (ii) the suffering of ‘substantial secular costs’ if the claimant violates it.” (Gedicks, P. 3.)

The problem with this—if it is a problem—is that, as Helfand puts it, “the Establishment Clause is typically understood to prohibit courts from investigating matters of religion and theology. And so evaluating the theological substantiality of a person’s religious exercise would seem to be off limits. On the other hand, RFRA requires courts to determine not only whether a burden exists, but whether that burden is substantial. And, therefore, courts, in enforcing the statute, cannot simply defer to the assertions of a litigant” that a substantial burden exists. (Helfland, P. 3.)

Gedicks asserts that this is indeed a problem, and a big one. If courts must defer to a religious claimant’s theological assertion that a substantial burden exists, those claimants are given a free pass over the first major hurdle of the test. Courts could scrutinize the claimants to make sure they are sincere and not acting fraudulently, but neither the government nor courts have much appetite for that inquiry. In Gedicks’s view, the secular burden test is not much more difficult in practice: “It is the rare law whose violation triggers only trivial sanctions.” (Gedicks, P. 5.) Thus, “If judicial review is confined to claimant sincerity and secular costs, the substantiality of a claimed religious burden under RFRA is effectively established by the claimant’s mere say-so.”(Gedicks, P. 5.) That still leaves the balancing portion of the RFRA test. But strict scrutiny is supposed to be, well, strict, and so one either waters down the balancing test, or hands religious claimants nearly wholesale victory and incentivizes more claims.

Neatly mustering a variety of sources and arguments, Gedicks asserts that “[t]he Court’s own precedents, RFRA’s text and legislative history, and the need for independent substantive assessment of substantiality to preserve the rule of law, together provide compelling authority for judicial review of the substantiality of religious burdens alleged by RFRA claimants.” (Gedicks, P. 17.) Judges and scholars have read the rule against answering “religious questions” too broadly. The proper rule is that courts cannot “decide a case involving a theological question by answering that question; they are fully empowered, however, to decide such cases by reliance on principles of secular law.”(Gedicks, P. 18.) The key here is to find the “right” secular-law principles that ought to govern in RFRA cases. Here, he turns to “traditional legal principles governing responsibility for private wrongs—namely, factual causation in tort and products liability.” (Gedicks, P. 24.)

Using the set of cases consolidated in Zubik as an example, Gedicks identifies several doctrines that he thinks best correspond to the different questions raised by those cases. Some of the lower courts in these “nonprofit contraception” cases went too far in dismissing the RFRA claims, “reject[ing] the claimants’ apparently theological conclusions about complicity and scandal for not making rational sense from the panel’s secular perspective.”(Gedicks, P. 27.) They should instead have “enlist[ed] common law tort principles as secular sources for measuring the substantiality of burdens on religion in the religious nonprofit cases.”(Gedicks, P. 28.) Claims involving a health plan purchased from a third-party insurer ought to be evaluated using principles of causation in fact; cases involving plans that are self-insured and administered by a third-party administrator should be analogized to the law of distributor liability for defective drugs; and cases involving “church plans” exempt under ERISA should be decided with reference to intervening cause doctrine. Gedicks shows skillfully that employing these analogies can help impose some reasonable legal boundaries on what constitutes a “substantial” burden under RFRA, and thus help implement Congress’s desire to limit RFRA claims to those cases meeting a standard of “objective substantiality of alleged burdens on religious exercise.” (Gedicks, P. 22.)

Helfand agrees that “courts must differentiate between substantial and insubstantial burdens if RFRA is to serve its filtering function of only protecting against the more egregious impositions on religious exercise.”(Helfland, P. 17.) But he is not convinced that Gedicks’s analogy-mining exercise avoids the problem of courts deciding theological questions: “A court cannot reject the religionist’s experience of a substantial burden simply because that experience would be insubstantial if evaluating against prevailing legal standards. To do so, notwithstanding the attempt to employ secular legal standards, would be to take the court’s understanding of religious obligations as relevant over and above the claimant’s understanding. And it is precisely that type of analysis that violates the strictures of the Establishment Clause.” (Helfland, P. 20.)

Instead, Helfand proposes that courts “consider whether, by engaging in religious exercise, persons will be subject to some civil penalty.” (Helfland, P. 22.) Sometimes, the civil penalty will involve “an additional cost or tax for engaging in governmentally regulated conduct.” (Helfland, P. 22.) In other cases, the penalty will “be framed as a sanction for non-compliance with a governmental rule.” (Helfland, P. 22.) In either case, the court’s primary role should be to “evaluate how substantial those [civil] penalties are.”(Helfland, P. 22.) This approach, Helfand contents, best comports with the broad goals and limits of RFRA without introducing inequalities between different religious claimants or practices: “To focus exclusively on the substantiality of a civil penalty would provide protection to all forms of religious practice, regardless of their internal religious significance, but would only do so where the costs imposed by the law for engaging in those practices was too high.” (Helfland, P. 24.)

That test would not leave courts without tools for cabining RFRA claims. One such tool, of course, is the possibility of balancing: of showing that a substantial burden is “the least restrictive means [of] achieving a compelling government interest.” Another is the sincerity inquiry. While courts should not generally impose their own views of what constitutes a reasonable or a ridiculous religious belief, accommodation claims that “assume facts that are increasingly outlandish[,] veering further and further away from commonly-held scientific truths,” might allow courts reasonably to question whether such claims are “truly sincere.”(Helfland, P. 32.) In short, courts “should respond to substantial burden claims not with substantial burden skepticism, but increased sincerity skepticism.” (Helfland, P. 32.)

These are both excellent papers: clean, clear, and focused. They exemplify the increased interest in Free Exercise and/or RFRA doctrine, as opposed to larger theoretical questions about the necessity or unsustainability of religious accommodations. And they are exemplars of skillful doctrinal treatments of the issue. Both articles make good use of both the text and history of RFRA and the body of cases under both RFRA and the Free Exercise Clause. The fact that both authors, despite coming out in different places, share some sense of the basic problems involved in the substantial burden test, and agree that lower courts have not always gotten it right and in particular have sometimes strayed improperly into theological questions, suggests that there are some core doctrinal problems here, that there is a need for more guidance from the Supreme Court—and that there are resources available to help craft a clearer test and provide more guidance.

Inevitably, however, both articles also show the limits of doctrinalism—perhaps in general, and certainly in this field. Not all doctrinal scholarship, to be sure, will be subject to the same severe limitations. In particular, one can imagine, and there has been a recent increase in, scholarship about doctrinalism. Scholarship recommending reforms in current doctrine, though, inevitably requires some sense of the metric against which those reforms will be measured and the values they are meant to serve. In a stable field or one with a highly specific statute, there may be substantial consensus about the relevant norms and values. But law and religion is not a stable field. The constitutional text is old and general; RFRA itself contains broad terms like “substantial burden,” and incorporates the highly contested caselaw of the Free Exercise Clause. And disputes in the field today suggest division over basic values and over the allocation of power between church and state, questions that may have been answered by prior cases but cannot settle them. Doctrinalism can channel such questions but it can hardly escape them. Questions of theory, and of policy, which also involves theory, are unavoidable here.

This is particularly evident in Gedicks’s piece. Gedicks’s use of analogies to tort law is skillful and may be useful. Unless I am mistaken, however, Gedicks does not provide any thorough justification for choosing these analogies, or for shifting analogies for different categories of contraceptive accommodation claims. His ultimate justification for his proposals is that “[j]udicial maintenance of [the] boundary” between “substantial” and “insubstantial burdens is “necessary and proper to prevent RFRA from spawning a regime of exceptions that swallow the rule.” (Gedicks, P. 23.) He certainly shows that these doctrines can help maintain such a boundary. But, I think, Gedicks is more successful at showing that his proposed analogies can provide some limits in RFRA cases than at showing that they provide the right limits in each category of claim.

At a minimum, making that showing would not just require him to propose a reasonable, administrable analogy. It would also require him to canvass other possible analogies and show that they offer a poorer fit. More than that, it requires one to justify, as well as stating, the reasons why a particular analogy is useful or not. Appeals to “common sense” will not do it. Nor will appeals to the rule of law, which in any event is a contested value. A tort-law analogy would indeed allow judges to decide more and leave less in the hands of RFRA claimants themselves. On the other hand, an analogy to the Chevron doctrine of administrative law would leave the interpretation of “substantial burden” more substantially in the hands of the claimants than the courts. Which analogy is better? That depends, among other things, on a justification for Chevron itself, and on a sense of the allocation of authority and responsibility between church and state.

Appeals to policy or practicality similarly are not self-justifying. Gedicks resists a stronger focus on sincerity because “lawyers and judges have little appetite” for such an inquiry. So what? It matters if there is good reason to have little appetite for such an inquiry, and if we hold that that reason outweighs other reasons to insist on such an inquiry whether “lawyers and judges” like it or not. Lawyers and judges were reluctant to constitutionalize an Equal Protection right to legislative reapportionment. Their concerns were reasonable—but we have decided to force judges to administer this area of the law just the same.

One could certainly ask similar questions about Helfand’s proposal, which would limit courts to asking about the existence of substantial civil penalties and provide some limits through more active “sincerity skepticism” and through the compelling interest test. Whether this better serves the purpose of RFRA depends not just on the statute’s text and history, but on a broader sense of what the “religious freedom” that RFRA purports to “restore” demands.

None of this, of course, is meant as a fatal criticism. Law must be implemented as well as theorized. Too abstract a focus on theory will not provide us with adequate tools to implement that theory; and too frequent a recourse to first principles will deprive the law of stability and predictability, and steer judges’ and scholars’ time and talents away from the kinds of technical questions at which they have a comparative advantage. It makes sense that law—scholars’ law and judges’ law—will sometimes engage with higher-order questions, but that its primary development will often be smaller and more doctrinal. Questions of implementation are important, and a body of good legal scholarship can add considerably to the improvement of doctrine. Both Gedicks and Helfand contribute mightily to this task in the area of substantial burden doctrine. Their articles are both models of good work in this field. In deciding Zubik, I would not be surprised if different factions on the Court appealed to one or both articles. In the end, though, you cannot build a better mousetrap unless you have a sense of what the goal of trapping mice is, and what balances must be struck in doing so. Zubik itself, and both articles, turn on larger questions of theory, policy, and power that are unanswerable by appeals to doctrine itself. Both articles are well worth reading, and neither can tell us how to choose between them.

Cite as: Paul Horwitz, The Value and Limits of Free Exercise Doctrinalism, JOTWELL (April 5, 2016) (reviewing Frederick Mark Gedicks, Identifying ‘Substantial’ Burdens: How Courts May (and Why They Must) Judge Burdens on Religion under RFRA, G.W. L. Rev. (forthcoming, 2016), available at SSRN, and Michael A. Helfand, Identifying Substantial Burdens, U. Ill. L. Rev. (forthcoming, 2016), available at SSRN),

The U.S. Supreme Court and Humble Opinion Writing

Eric Berger, The Rhetoric of Constitutional Absolutism, 56 Wm. & Mary L. Rev. 667 (2015).

American politics is increasingly polarized. The New York Times recently published an article listing all of the people and organizations that Donald Trump has insulted during his Presidential campaign so far. Republicans and Democrats get in trouble just for working together in Congress. This makes the U.S. Supreme Court an especially interesting institution right now. Though unelected, it is made up of Republican and Democratic appointees who decide important constitutional and other cases together. Professor Eric Berger, of the University of Nebraska School of Law, has written an important law review article addressing a related problem that has emerged on the Court: a tendency towards “absolutism” in its judicial opinions. So, has political polarization somehow carried over to the Court? If yes, what are the explanations and solutions?

Professor Berger’s article is well written, nicely organized, deeply researched, and comprehensively analyzed. Moreover, his article shows the value of traditional doctrinal legal scholarship, though the article includes abundant theory as well. The article was published before Chief Justice Roberts’ dissent in Obergefell v. Hodges, 576 U.S. __ (2015), where Roberts wrote that gay people may celebrate the decision, but added derisively that the majority’s decision has “nothing to do with the Constitution.” Ironically, the point of Roberts’s dissent was the lack of humility in Justice Kennedy’s majority opinion. So Professor Berger is on to something. The late Justice Scalia frequently, and with increasing harshness, skewered the opinions of the other justices.

Berger’s first section delineates five types of cases where judicial absolutism is present, though some of them are somewhat paradoxical. He starts with District of Columbia v. Heller, 554 U.S. 570 (2008), showing how the conservative majority found that the historical evidence unquestionably proved that the Second Amendment was an individual right, though the issue has been debated for over 200 years. The conservatives also dismiss the most relevant precedent. Then, the dissenting “liberals” examine the historical evidence and reach the exact opposite conclusion, and with a tone that is similarly confident and dismissive of competing interpretations. Perhaps the only saving grace is that several distinguished and generally conservative jurists, most prominently Judges Richard Posner and Harvey Wilkinson, excoriated the majority opinion’s analysis as one sided “law office” history.

Even cases overturning binding precedent, such as Citizens United v. FEC, 558 U.S. 310 (2010), which caused monumental changes in our campaign finance system, use absolutist language. The Court actually concludes that the appearance of a conflict of interest does not raises serious corruption questions. Corruption can only be quid pro quo. In this typology section, Berger argues that there are certain cases, such as Brown v. Board of Education, 347 U.S. 483 (1954), and Loving v. Virginia, 388 U.S. 1 (1967), where absolutist language is necessary, though he treats this as somewhat self-evident when he could have elaborated further on this point. Presumably, he thinks the laws there were obviously outrageous, and the danger of public and political backlash real.

Berger proposes three possible explanations for the Court’s absolutism: strategic considerations; institutional considerations; and psychological explanations. Among the strategic considerations are “Absolutism as Rule of Law,” “Absolutism as Formalism” (e.g., the tendency of the United States Supreme Court, as opposed to courts in other countries, to reject balancing tests), and more. Institutionally, he discusses “The Court’s Internal Culture” as a factor. And on psychology, he relies on a currently fashionable view of decision-making, namely “Confirmation Bias and Cultural Cognition.” Here, he also notes how the adversarial nature of the American legal system requires zealous representation.

Berger does a good job finding some of these criteria more likely to promote absolutism than others, though no categories are really dismissed outright. For example, he says there is abundant evidence that people and judges subconsciously seek to conform certain consequential facts to their worldviews. He is less impressed with the strategic argument that absolutism is a method of “persuading colleagues,” as a modest judicial tone would be more likely to attract consensus.

Berger’s last section argues that the costs of this absolutism outweigh the benefits. He lists four costs: a “politics of cultural disdain”; a risk to judicial legitimacy; misconceptions regarding the workings of constitutional law; and “misplaced piety” towards our framing charter. On the benefits side, he includes “legal stability and the rule of law,” and civic engagement (since the public will know exactly where the Court stands). He also addresses the relationship between judicial supremacy and popular constitutionalism, as well as between absolutism and Cass Sunstein’s minimalism.

Finally, drawing on the work of Dan Kahan, Berger advocates the Court employ a more “aporetic engagement” with its cases. Such an approach is characterized by intellectual humility, an acknowledgement of contrary evidence, and admission of the difficulty of the cases where both sides have powerful arguments. He proposes five concrete steps the Court should take:

  1. Greater humility in their opinions and more appreciation for the losing side’s evidence.
  2. Recognition of the possibility that one side’s loss may be tragic, and a fair articulation of this side’s alternative constitutional vision.
  3. Abandonment of reliance on the dissent to articulate the losing side’s vision.
  4. Greater candor and explicitness about the difficulty of the decision.
  5. Better treatment amongst the Justices in their opinions and assumptions about each other’s good faith.

Berger’s arguments are reminiscent of an excellent book cited in the article. Emily Calhoun’s fine book, Losing Twice: Harms of Indifference in the Supreme Court, argues that it is hard enough for a litigant—who often also represents a constituency or member of a minority group—to lose a case, let alone have a legal system treat you unfairly. She argues that, however inevitable it is that the Court’s decisions will produce winners and losers, the Court has a duty to try to ease the harm suffered by citizens whose arguments about the meaning of the Constitution, and their own rights, are rejected. It is an important work, and Berger is right to see the connection to his own argument and advance the conversation.

Berger’s article has certainly raised a very important issue, and one that has been noticed by the press, in the context of questions about the justices’ civility—or lack thereof. A complication regarding Berger’s recommendations is the prisoner’s dilemma. If both sets of Justices (the “liberals” and “conservatives”) are more humble, then we might all benefit. But if one side stays absolutist while the other follows Berger’s approach, the absolutists would be making “stronger,” or at least more emphatic, arguments in the public eye. Another potential problem is that a more reserved opinion might actually delegitimize the Court and make it look uncertain. That’s the reason why Berger says his analysis does not apply to cases like Brown and Loving. But that means there is a complex question about which cases are suitable for humility and which are not. For example, in Obergefell, a hesitant endorsement of gay marriage would have been problematic given what was at stake. But even on gay marriage, the Iowa Supreme Court, in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), actually issued a more humble yet unanimous opinion relying on equal protection, and acknowledging comprehensively the objections of some religious people to gay marriage.

To sum up, Berger has given us a superb article that suggests that there would be much value in the Supreme Court writing less absolutist and more nuanced candid opinions. It is well worth reading.

Cite as: Mark Kende, The U.S. Supreme Court and Humble Opinion Writing, JOTWELL (March 2, 2016) (reviewing Eric Berger, The Rhetoric of Constitutional Absolutism, 56 Wm. & Mary L. Rev. 667 (2015)),

What We Do With Substantive Due Process

Jamal Greene, The Meming of Substantive Due Process,  31 Constitutional Commentary -- (forthcoming 2016), available at SSRN.

In 1980, John Hart Ely pronounced substantive due process “a contradiction in terms—sort of like ‘green pastel redness.’” Today, the idea that substantive due process is an oxymoron has become commonplace. Professors of constitutional law teach that it is so; judges rehearse the criticism in their opinions. Of course, this hasn’t stopped courts from protecting substantive rights under the Due Process Clause. But they have generally responded to this critique by invoking stare decisis rather than building any kind of affirmative textual case for the doctrine. Just five years after Ely’s quip, the Supreme Court conceded that the substantive dimension of due process is not rooted in the language of the Constitution but is simply “the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.” This concession, among other things, has put supporters of the Court’s substantive due process rulings—particularly those vindicating sexual and reproductive rights—on the defensive. The idea that substantive due process is a contradiction in terms cloaks these rulings in illegitimacy. It suggests they are constitutionally unmoored, or worse yet, moored in an interpretation of the document that is fundamentally absurd.

In an excellent, thought-provoking new essay forthcoming in Constitutional Commentary, Jamal Greene shows that this particular critique of substantive due process became prominent only in the 1980s. Substantive due process had, of course, garnered criticism before then—especially during the Lochner era and on grounds that it enabled judges to engage in policymaking. But it was only in the 1980s, in the wake of decisions such as Griswold and Roe, that there was apparently a realization that the word “substantive” contradicts the word “process” in due process analysis—and that this contradiction undermines the validity of the Court’s substantive due process rulings. Greene shows that this realization coincided with the growth and expansion of a certain kind of originalism. The claim that “substantive due process” is inherently contradictory was actively promoted by conservative legal actors inside and outside the Reagan Justice Department. A substantial number of the judicial opinions—including the great majority of appellate opinions—that have attacked substantive due process on these grounds have been written by appointees of that department. Greene argues, in other words, that the claim that substantive due process is an oxymoron was fostered and spread as part of a political movement. The delegitimation of decisions such as Griswold and Roe was not a byproduct of the assertion that substantive due process is an oxymoron, but rather, its purpose.

Greene persuasively demonstrates that the notion that substantive due process is internally contradictory is a fallacy, at least from a historical and analytical perspective. From the time the Fourteenth Amendment was enacted through the 1960s, invocations of due process were frequently what we would today describe as substantive. Moreover, Greene argues, even so-called procedural due process questions are intractably substantive in the sense that one cannot determine when a law has been validly enacted or when a trial has been fair (i.e., what process is due) without making substantive judgments. Thus, Greene suggests, we ought to conceptualize due process “along a loose (and perhaps overlapping) spectrum from what we tend to see as its procedural to its substantive elements”—rather than as a doctrine focused properly and historically on procedure and only lately and perhaps illegitimately on substance. Put another way, there is always substance in due process. If there is a linguistic problem with the term substantive due process, it is not that it’s oxymoronic, but that it’s redundant.

The growth of this line of critique, then, tells us less about substantive due process—which Greene notes “meant about the same (if not less, substantively) in the 1980s as it did before”—than about how constitutional meaning is made. Many forces shape our understanding of the Constitution. Constitutional memes—ideas about the document that become widely shared through social transmission—are among the most powerful. The notion that substantive due process is an oxymoron is just such a meme. It gained momentum as a way of attacking progressive rulings disfavored by an ascendant conservative movement, and with this impetus replicated and spread rapidly (with help from high-placed members of that movement) until it became conventional wisdom—at least among legal elites.

At this point in his argument—after he has exposed the political origins of the oxymoron meme and demonstrated its lack of historical and analytical integrity—Greene makes a genuinely surprising move: he begins vigorously to defend judges’ continued reliance on this meme. Memes are the stuff of constitutional law, he argues. They are central to how we develop shared understandings of constitutional meaning and make the document relevant to contemporary life. When substantial numbers of people subscribe to a particular understanding of the Constitution, it becomes part of constitutional law; it becomes a tool judges may use in formulating and justifying interpretations of the document. And rightly so, Greene argues. One key feature of a legitimate constitutional argument is its persuasiveness. Indeed, he suggests that “[v]alidation from the constitutional community is a lot (if not all) of what matters to the legitimacy of constitutional law.” To choose a “correct” interpretation over a persuasive one may even, in some circumstances, be tyrannical, for the Constitution belongs to the people and they ultimately are the most important arbiters of what it means. Thus Greene defends judges’ reliance on the oxymoron meme despite the fact that it is a fallacy in historical and logical terms. What matters, he argues, is that it’s a persuasive fallacy. It has become part of our shared understanding of the Due Process Clause and this bestows on it a special kind of constitutional legitimacy.

This argument raises all sorts of interesting and provocative questions. Greene defends judges’ use of the oxymoron meme on the ground that it helps them to make their decisions legible to the “law-consuming public.” When judges deploy this meme in their opinions, they are, quite literally, speaking their audience’s language. But what will happen after some segment of the law-consuming public—including you, perhaps—consumes Greene’s article and grows skeptical of the oxymoron meme? How many people have to buy Greene’s argument that this meme is a fallacy before he stops wanting to defend judges’ reliance on it? Relatedly, does it matter, from a legitimacy standpoint, that the oxymoron meme has not spread much beyond the most elite segments of the “constitutional community”? Greene defends judges’ use of this meme at least in part on democratic legitimacy grounds, drawing support from Robert Post’s observation that “the Court must find a way to articulate constitutional law that the nation can accept as its own.” It is not clear that the nation has accepted the oxymoron meme as its own. It may be that, from a democratic constitutionalist perspective, Greene’s normative claim about the legitimacy of this meme is ultimately persuasive only to the extent that the broader public—and not just some portion of legal elites—has embraced the idea that substantive due process is an oxymoron.

Whether or not one is persuaded by Greene’s canny and provocative defense of judges’ continued reliance on the notion that substantive due process is an oxymoron, his article provides a brilliant social and intellectual history of the idea. He shows how constitutional understandings have been reshaped over the past generation by a new interpretation—one grounded not in history or common law or conceptions of the framers, but in a meme popularized by the Reagan Justice Department. Whether this form of living constitutionalism ought to be viewed as resting on a base of democratic legitimacy is not clear. But at least within the world of elite lawyering in which so much of our constitutional meaning is in fact made, Greene has shown how it’s done. Veterans of the Reagan Justice Department may call themselves originalists, but time and again they’ve proven the most effective living constitutionalists of our day.

Cite as: Cary C. Franklin, What We Do With Substantive Due Process, JOTWELL (February 11, 2016) (reviewing Jamal Greene, The Meming of Substantive Due Process,  31 Constitutional Commentary -- (forthcoming 2016), available at SSRN),

The Long Arc of the Accommodation Debate

Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law, 66 Stanford L. Rev. 1205 (2014).

Two frequent questions arise about the Jotwell project. Should we focus more on deserving articles that haven’t received much attention? And does liking an article “lots” preclude selecting articles one disagrees with? Today’s contribution does not do much to address the first concern. The article discussed here is by a well-known author, was well-published, and has already garnered attention—although less than it deserves, in my opinion. But this Jot does more or less meet the second criterion.

Samuel Bagenstos’s excellent article, The Unrelenting Libertarian Challenge to Public Accommodations Law, has troubled me for a year now. Anyone seeking to elaborate, and in some cases defend and expand, the developments it describes and, I think, implicitly criticizes, must reckon with it. As this Jot argues, however, so must supporters of Title II, who may find that their arguments defending it, and their reassurances about its scope and limits, are equally subject to the undermining logic of Bagenstos’s own critical—or Critical, if you like—argument. As he concludes, the conflict over just “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres” is a real one, and unlikely to go away, for reasons that apply to both sides in the debate.

Bagenstos’s article is one of the first, and still possibly the best, of what has become a cottage industry of articles, first anticipating and then following in the wake of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. Call it the “neo-Lochnerism” line of scholarship, in keeping with alarums about neo-liberalism, neo-conservatism, and other “neos.”

This scholarship warns of a looming, or perhaps burgeoning, revivalism of libertarian arguments, echoing the libertarianism conventionally associated with Lochner v. New York and its sequelae. Various examples are offered, with Hobby Lobby and other challenges to the Affordable Care Act figuring prominently and sometimes linked to cases like Citizens United. The authors of the movements are also variously identified: is it a case of the “theorists lead[ing]” and “opinion leaders” and judges “eventually follow[ing],” or one of close cooperation between a “vocal group of American legal scholars” and “well-funded conservative foundations?” But its threats to “liberal democratic constitutionalism,” as Jean Cohen puts it, are clear and it “should be resisted wherever it arises.”

Often enough, the project is mostly normative; indeed, in a constitutional culture in which history is much more influential than theory, the description is the resistance. Calling something the “new Lochner” is like naming your firstborn—or, better yet, someone else’s—“Loser”; it places a heavy thumb on the scales of affective, not intellectual, evaluation of the merits. The analogy may be sincerely offered, but the rhetorical strategy is baked in.

That said, Bagenstos states early on, “My main goal in this Essay is analytic and descriptive,” and I take him at his word. He helpfully narrows his focus to a particular area: the law regulating discrimination in public accommodations. He does not allow affective, and thus potentially judgment-distorting, analogies to usurp the place of reasoned argument. Although his article is, in my view, a progenitor of much of the neo-Lochnerism literature that has followed it, it references Lochner without using it as a cudgel. And Bagenstos’s broad theory is not, as some of the neo-Lochnerism literature sometimes is, redolent with implicit accusations of some vast right-wing or libertarian conspiracy, overt or covert.

Nevertheless, his central thesis is important: that there has been a notable continuity in the resistance to public accommodations laws. The language and concepts, and the legal framework to the challenges, have changed. But “the law of public accommodations discrimination remains preoccupied by the same sorts of questions that it once confronted. . . . Today’s controversy regarding public accommodations is a controversy about whether the civil rights category should cede back some of the territory it once conquered from the category of social rights.” (P. 1209.) At least at a certain level of abstraction, Bagenstos makes a strong case for that continuity.

The controversy starts with a tension, dating “from the moment the American civil rights project began,” over “how broadly and deeply equality principles should extend into civil, economic, and social relations.” (P. 1209.) At the outset, these debates conformed to a “tripartite theory” of civil, political, and social rights, with fierce disagreement over whether particular conduct and laws fit properly within a given category, and especially whether it fell under the more unregulable “private” or “social” sphere. The connection between the two terms is important: As Bagenstos notes, “For many during the Reconstruction era, the civil-rights/social-rights distinction served a function like the one that the structurally similar public-private distinction would later be understood to serve—to preserve a sphere of private, individual choice.” (P. 1212.) It is thus “hardly surprising,” as he observes, that the distinction, like the public-private distinction, “proved to be unstable and continually contested.” (P. 1212.)

By the time the civil rights era of the mid-twentieth century began, “people no longer spoke in terms of civil rights versus social rights.” (P. 1213.) The Supreme Court’s powerful statement in Brown v. Board of Education, whatever its actual underpinnings, “came to be understood as embracing a generic principle of equality.” (P. 1214.) Although the language of resistance changed, however, “the substantive concerns that underlay [the old] theory continued to play a major role in political and legal debates”—in particular, the debate over Title II of the Civil Rights Act and its strictures against discrimination in public accommodations. (P. 1214.) But the arguments were now framed primarily (although not exclusively; Bagenstos has an interesting excursus on the use of Thirteen Amendment arguments) “in the libertarian terms of freedom of association.” (P. 1215.) However framed, “these libertarian objections invoked the same notions of preserving private choice that underlay the civil-rights/social-rights distinction.” (P. 1217.)

Those arguments failed in the political and legal arenas. Bagenstos writes: “This history might lead us to conclude that the civil-rights/social-rights distinction no longer matters in the law.” (P. 1218.) Not so, in his view. Contests over these categories’ boundaries continue—indeed, are proliferating—today: “[W]e are edging closer to reengaging precisely the same fights that occurred in the years surrounding the passage of Title II of the Civil Rights Act.” (P. 1219.) And the libertarian arguments for a robustly private sphere, if “taken seriously, threaten the core of Title II.” (P. 1219.) (If Bagenstos is clear on the perceived danger, however, he is careful to note that the libertarian agenda he describes is not the same as “an agenda to promote private-sector discrimination.” (P. 1219.))

Bagenstos concedes that the threat is mitigated—or, perhaps, merely redirected—by the profound political strength of Title II, at least as it applies to race. When Rand Paul questioned Title II during his 2010 campaign for the Senate, the blowback was swift and the objectors included libertarians; but the libertarian objections, he suggests, were pragmatic and political, not philosophical. Meanwhile, other trends suggest renewed assaults on the Title II citadel. In particular, Bagenstos focuses on the freedom of association claim made in Boy Scouts of America v. Dale. Some defenders of that decision assert that “Dale poses no threat to the application of public accommodations laws to for-profit businesses.” (P. 1220.) But Bagenstos argues that such a distinction is unstable, and thus offers little reassurance that the challengers’ logic wouldn’t eventually lead to a civil-rights/social-rights divide “in almost exactly the same place Robert Bork would have drawn it in the 1960s.” (P. 1220.) That provides the foundation for his last example, one that continues today: the religious challenges to the contraception mandate and related requirements, which rely on “a theory that would collapse the expressive-commercial distinction” (P. 1220) and thus put “skeptics of public accommodations laws . . . in a position to potentially block further expansion of those laws—and even to threaten their core applications.” (P. 1240)

This is a strong argument, clearly made. It is, perhaps, a fair question how much this is indeed a purely “analytic and descriptive” project, and how much it constitutes the framing of a strategy for the defense of Title II against recent arguments for religious accommodation. One’s answer to that question may depend on what credit one gives to criticisms of Bagenstos’s argument, some of which may be found in Richard Epstein’s piece in the same symposium issue of the Stanford Law Review. But much of the reason for any skepticism on that score lies elsewhere than in Bagenstos’s article itself. Some of that skepticism is a product of the more visible partiality of some of the later pieces in the neo-Lochnerism genre. (On that, readers should consult a forthcoming article by Marc DeGirolami, which contends that this literature ends up summoning the specter of Lochnerism only to defend the primacy of unenumerated constitutional rights over enumerated ones. That’s an odd position, to say the least.) But much of it can be laid at the feet of the frequent normative and rhetorically loaded nature of legal scholarship itself. It has long since justifiably eroded suspicion about even those works, especially in public and constitutional law, that purport to be purely disinterested acts of scholarship.

It is clearly unfair to hang all that skepticism on Bagenstos, however. No matter their priors, people interested in public accommodations laws can profit a great deal from this article. Libertarians will find much valuable history and analysis, and perhaps an invitation to display greater candor or self-awareness about the nature of their project. Those who champion religious accommodation, even in the realm of public accommodations, for non-libertarian reasons will also find cause for concern here. For reasons both strategic and sincere, few supporters of religious accommodation want to attack entirely the underlying logic of laws forbidding discrimination in public accommodation, at least where race is concerned. Much of their own project consists of efforts to draw reasonable lines between for-profit and non-profit enterprises, or between the public and private or civil and social spheres. In doing so, they will have to reckon with Bagenstos’s article, which reveals the potential instability or incoherence of those efforts.

And defenders of an expansive reading of public accommodations laws, in the face of religious or other challengers and seekers of exemptions? They, too, ought to have reason for concern after reading Bagenstos’s article. That is perhaps the best evidence of its success as legal scholarship, of its genuinely analytic and descriptive nature. This is not simply a liberal critique of the libertarian challenge, but a critical take, drawing on the literature of Critical Legal Studies. Like the public-private distinction, he argues, the distinction between civil and social rights turns out to be “unstable and continually”—we might even say essentially—“contested.” Here, he cites Duncan Kennedy. Similarly, efforts to draw a distinction between commercial and expressive associations are “unstable.” He acknowledges that multiple readings and legal options are available in response to what, quoting Jack Balkin, he calls a “pervasive welfare state.”

Little wonder, then, that “[w]e continue to struggle over the proper placement of the civil-rights/social-rights line, nearly fifty years after Congress and the Supreme Court supposedly laid that distinction to rest.”(P. 1220.) Little wonder, too, that more conventional liberal appeals to the distinction between commercial and expressive association or between for-profit and nonprofit businesses, offered to defend state power by demonstrating that there are discernible limits on the state’s broad reach, appeal more to authority than to persuasive argument. (Witness Justice Ginsburg’s dissent in Hobby Lobby itself.)

If there is a surprise in the current neo-Lochnerism literature, it is that so much of it relies on Critical Legal Theory’s insights, yet virtually none of it cites the literature, or acknowledges the double-edged nature of those insights. A Westlaw search for articles containing the terms “Lochner” and “Hobby Lobby” since the beginning of 2012 yields 43 results; add “Duncan Kennedy” to the mix and the number plummets to two. One is mostly irrelevant, and the other is Bagenstos’s article. To reveal the instabilities in another’s argument is human; to fail to notice that you have also dug a hole under yourself is, well, all too human. It is telling, perhaps—whether of extreme certitude or great insecurity is not clear—that these efforts to entrench a new liberal settlement routinely deploy the Crits’ analytical moves, but otherwise consign the Crits’ names and works to the memory hole.

Therein lies the relative weakness of the new defenses of public accommodations laws against religious challengers, and the scholarly strength of Bagenstos’s piece. It does indeed suggest a more sweeping arc to the narrative of challenges to public accommodations laws, one connecting past, present, and perhaps future. It does so on a sound basis, mostly without appealing to essentially irrelevant arguments about the challengers’ motives or funding. (I think it would have been sounder still if, in describing shifts in arguments over the years, it had been clearer in noting that those changes are an inevitable consequence of changes in our legal surround, often internalized by those making the arguments, and not necessarily a set of intentional or covert tactical choices.)

Most important, it recognizes that the instabilities and uncertainties in this area are inevitable and universal. The question “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres”—whether its limits are substantial, whether the government may override associational choices altogether, or whether the balance rests at some unstable point in between—is and must be a subject of continuing contestation and re-evaluation. Every new era, with its fresh controversies, demands its own renegotiation—if not of the unstable line between “public” and “private,” then of the reasonable reach and limits of state power in practice. Hence the haunting nature of Bagenstos’s fine article. On these questions, legal scholars may have much to say about the particular workings of legal doctrine at any given time, and a little to say about legal theory. But on the core question itself, their contributions will be of little real or lasting value.

Cite as: Paul Horwitz, The Long Arc of the Accommodation Debate, JOTWELL (November 24, 2015) (reviewing Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law, 66 Stanford L. Rev. 1205 (2014)),

Can Abusive Constitutionalism Be Checked?

David Landau & Rosalind Dixon, Constraining Constitutional Change, 51 Wake Forest L. Rev. (forthcoming, 2015), available at SSRN.

Changes to constitutional law do not always further beneficial ends. Sometimes, in fact, they do the opposite, with political actors utilizing mechanisms of constitutional law-making to consolidate their powers, entrench themselves in office, marginalize opposition, and otherwise undermine basic democratic values. Under these circumstances, a constitution can find itself in the perverse position of enabling rather than constraining abusive governmental action—subverting the very principles that it was originally intended to promote.

Comparative constitutional scholars have puzzled over the question of how to prevent “abusive constitutionalism” of this sort. To date, they have focused largely on mechanisms of constitutional amendment, considering ways in which an existing constitutional regime might structure its internal rules of change so as to frustrate a would-be autocrat’s anti-democratic amendment efforts. For example, timing requirements and supermajority voting procedures might render undesirable amendments especially difficult to enact; “eternity clauses” might safeguard essential provisions of a constitutional text against the threat of repeal; and the doctrine of “unconstitutional constitutional amendments” might empower courts to invalidate some forms of anti-democratic action after the fact. In these and other ways, amendment-restricting devices might manage to prevent at least some abusive amendments from ever taking effect.

These are important tools, which have enjoyed some measure of success in the real-world. But, as Professors David Landau and Rosalind Dixon point out in their wonderfully thought-provoking article, Constraining Constitutional Change, even a fail-safe set of constraints on the amendment process cannot eliminate the specter of abusive constitutional change. Looming in the background is the alternative and more daunting possibility of wholesale constitutional replacement—the outright rejection of an old constitutional order (including its amendment rules) in favor of a brand-new constitutional regime. Where amendment rules threaten to foil a would-be autocrat’s abusive constitutional ambitions, that official might simply choose to take the replacement route instead.

All of which sets the stage for Landau and Dixon’s inquiry, namely the question whether “courts and constitutions might deploy doctrines constraining constitutional replacement.” (P. 2.) Put differently, Landau and Dixon explore the extent to which existing legal safeguards against the threat of abusive constitutional amendment might be adapted to confront the threat of abusive constitutional replacement. This possibility has received only limited attention in the existing scholarly literature. Landau and Dixon convincingly demonstrate that it deserves much more.

Landau and Dixon begin their analysis by successfully rebutting two threshold objections to their project, one theoretical and the other practical. Beginning with the theoretical objection, Landau and Dixon note that “constitutional replacement is usually seen as being an act by ‘the people’ outside of existing legal or constitutional rules,” in which case courts or other old-regime institutions might have no justifiable grounds for injecting themselves into the process. (P. 6.) That objection, Landau and Dixon suggest, may prevail as applied to a genuine exercise of the “constituent power.” But the real prospect of abusive constitutionalism suggests that not all replacement-related efforts will qualify as such. Replacement processes, just like amendment processes, “can be manipulated in order to serve the agendas of authoritarian actors and parties,” and when that is so it will at least be “open to dispute, or argument, as to whether a set of particular elected leaders, or popular political leaders, can legitimately claim to speak for a majority of citizens, or the people as a whole.” (P. 6.) Even accepting that courts and other institutional actors should defer to a genuine expression of the popular will, not all attempts at constitutional replacement will in fact reflect such an expression in the first place.

But even if we accept the legitimacy of legal constraints on the replacement process, we can still question their practical value. Replacement efforts, in contrast to their amendment-based counterparts, directly challenge the foundations of a prior constitutional regime. That being so, one might wonder why the proponents of these efforts would have any reason to care whether a court or some other institutional actor has declared them to be acting extra-legally. But Landau and Dixon have a persuasive response to this objection as well: abusive efforts at replacement, they point out, “tend[] to occur during periods of high political turmoil,” such that “restraints on constitutional change,” though by no means guaranteed to work, might valuably “act as a ‘speed bump’ in order to slow abusive processes.” Even just by slowing things down a little, legal intervention might prove “critical in allowing opposition actors to organize and prevent the anti-democratic change.” (P. 7.) Of course, the extent of a constraint’s influence will depend on a host of political factors, including the power and popularity of a replacement movement’s proponents, as well as the institutional standing of the actors attempting to enforce the constraints. But where the conditions are right, legal intervention, though by no means all-powerful, may nonetheless exert real influence on the ultimate outcome of the crisis.

As Landau and Dixon are quick to observe, it hardly follows from these points that replacement-oriented constraints will always succeed, much less that they should in fact be used. (Among other things, one might worry that replacement-related constraints would too often function to frustrate beneficial forms of constitutional change, in which case the game might not be worth the candle.) But the authors do at least claim to have demonstrated, rightly in my view, that replacement-related constraints should not be dismissed as either “per se normatively unjustifiable” or as bound “inevitably [to] fail.” (P. 7.) And that observation in turn prompts the remainder of their analytical inquiry, in which Landau and Dixon sort through the various mechanisms by which courts and other constitutional actors might attempt to constrain replacement-oriented constitutional change.

One mere jot cannot do justice to the depth and sophistication of Landau and Dixon’s work on this score, so I’ll just note that the analysis here struck me as nuanced, insightful, and richly informed by real-world case studies. The breadth of their case studies is particularly impressive: the authors draw insights from constitutional transitions in Bolivia, Colombia, Hungary, South Africa, Venezuela, and Zimbabwe, among others. What emerges from their efforts is a rich and detailed analytical framework that invites and facilitates future scholarly investigations of constraints on constitutional change. In developing this framework, moreover, Landau and Dixon offer a number of interesting thoughts along both practical and theoretical dimensions, weighing the respective “pros” and “cons” of the individual techniques they identify and speculating as to the conditions under which each of these techniques is most likely to succeed.

To give a flavor of their analysis, Landau and Dixon at one point compare the possibility of policing replacement ex ante, via the enactment of “replacement clauses” that define and regulate the “constituent power,” to that of policing replacement ex post, via the development of a judge-made “unconstitutional constitutional replacements” doctrine. The former, they suggest, is preferable to the latter in terms of clarity and popular legitimacy, but the latter is preferable to the former in terms of its flexibility and adaptability to changed circumstances. Landau and Dixon also imagine ways of distinguishing between valid and invalid attempts at constitutional replacement. This inquiry, they suggest, would benefit from increased “engagement with transnational norms,” whose independent status might help to “bolster[] the effectiveness of either textual or judge-made” constraints (P. 21.), and whose limited scope might help to limit the “overuse” of those constraints in particular cases. (P. 14.)

Their arguments on these and other points111 do not purport to be definitive. But they offer a fresh set of insights on the problem, while teeing up a variety of important questions for future investigation. The discussion thus hits the sweet-spot between being interesting and valuable in its own right and opening up useful new avenues for subsequent work.

Perhaps the most important takeaway of their project is this: any serious attempt to confront the dangers posed by abusive constitutionalism must attend to both amendment- and replacement-related processes, recognizing that the relationship between the two is anything but static. A system designed exclusively to withstand the threat of abusive constitutional amendments might not so much thwart anti-democratic constitutional efforts as it will simply channel those efforts in a replacement-focused direction. As Landau and Dixon put the point, “restrictions on amendment might . . . increase the incentives for political actors to rely on processes of replacement, where such processes are not similarly constrained.” (P. 2.) If that is true, then it further raises the stakes of the inquiry. The greater the prevalence of amendment-related constraints, the greater the likelihood of abusive constitutional replacements. This renders all the more pressing the questions that Landau and Dixon have raised.

Cite as: Michael B. Coenen, Can Abusive Constitutionalism Be Checked?, JOTWELL (October 26, 2015) (reviewing David Landau & Rosalind Dixon, Constraining Constitutional Change, 51 Wake Forest L. Rev. (forthcoming, 2015), available at SSRN),

Someone Who’ll Watch Over Me

Gillian E. Metzger, The Constitutional Duty to Supervise, 124 Yale L. J. 1836 (2015).

Gillian Metzger is convinced of “[t]he central importance of supervision.” “Supervision and other systemic features of governmental administration with which it overlaps … are fundamental in shaping how an agency operates and its success in meeting its … responsibilities.” (P. 1840.) Nonetheless “constitutional law stands largely aloft from the reality of administrative governance, with the Supreme Court refusing to subject systemic features of government operations to constitutional scrutiny.” (P. 1841.) This dissonance preoccupies Metzger’s article.

Available lines of thought, we know, lie right at hand. The Article II Take Care Clause jumps out as one beginning. Anti-delegation worries, originating in structural preoccupations, suggest another accessible constitutional skein. Metzger’s observations drawing out these threads make for easy reading. (Pp. 1874-1904.) The problem, she thinks, lies largely with courts and their adjudicative inhibitions. In both administrative and constitutional law, ideas of review, “cases” and “controversies,” parties to disputes, resolution and finality, and so on—all work against thinking through matters of system, supervision, “rightful hierarchy,” and so on. Judges are inclined to start with—are prone to hesitating absent—investigations of individual instances. Although she maps possible occasions for taking up questions of supervision directly, Professor Metzger acknowledges that there’s not much chance of provoking large-scale change in judicial orientations (and maybe shouldn’t be). Her several discussions, here too, are searching and extensive, thoughtful and clear. (P. 1859-70, 1904-09, 1914-18.)

The article is nonetheless not a ninety-page shrug. Law works itself out, of course, in processes other than adjudication. Metzger identifies good reasons for executive officials and legislators to take firmer hold of the duty to supervise. (P. 1927-32.) But it may also be enough constitutionally, her readers are led to understand, if judges working within administrative and constitutional law put to use the idea of the duty to supervise as something like an “aside” (not Metzger’s own word; see the new compilation edited by Jason Potts and Daniel Stout, Theory Aside). Professor Metzger writes with quiet, dry wit:

Administrative law … offers an important means by which courts could require agencies to pay greater attention to their supervisory obligations without assuming responsibility for enforcing those obligations in the first instance. The vehicle would be the standard APA challenge to agency action as arbitrary and capricious…. (P. 1919.)

Appearance and action, she thinks, do not always (and seemingly need not) proceed in parallel in administrative law:

…[A]n administrative law approach to the duty to supervise would require changes in current administrative law doctrines…. Notably, however, courts often appear to respond to presidential involvement in their application of administrative law scrutiny without being open about doing so or offering a justification for their approach. As a result, although acknowledging the duty to supervise might entail changes in stated doctrine with respect to presidential administration, it may not require much change in current administrative-law practice. (P. 1926.)

Even given all this indirection, even if little would change in administrative law in practice, Metzger stresses that “acknowledging” the duty to supervise would be a marked change. “[I]ncorporating a duty to supervise into administrative law could produce a fundamental reorientation of judicial review of agency action. … Rather than targeting specific decisions or actions, judicial review would scrutinize programmatic structures and broader aspects of agency policy and functioning.” (P. 1920.) But this change would be notable mostly from the constitutional perspective.

Failure to articulate administrative law’s constitutional underpinnings leads to a false perception of constitutional law as separate and distinct from other forms of law and of agencies having little role as independent constitutional enforcers. Failure to acknowledge the complicated interplay among courts and agencies with respect to constitutional enforcement also makes it difficult to develop an account of the proper bounds of this relationship. (1912)

It is not just that making explicit the constitutional law duty to supervise would alter the face of administrative law. Our sense of what constitutional law “is” reshapes itself too.

Constitutional law in the modern administrative state does not have hard edges allowing for a clear demarcation between that which is constitutional and that which is not. Rather, constitutional law today is a porous entity. Constitutional requirements mingle with numerous forms of subconstitutional law, often functioning more as background norms than as direct commands. This means that constitutional implementation will centrally involve other government institutions. It also means that courts will inevitably engage in law creation as they seek to enforce constitutional concerns indirectly. (P. 1933.)

Water music! What wonderfully baroque minimalism! But there is also substantial practical fall-out, Professor Metzger suggests, providing a notable headline example:

Precluding prospective and categorical articulation of immigration enforcement policy and priorities is tantamount to insisting that nonenforcement decisions be made by lower-level officials…. Acknowledging a constitutional duty to supervise thus indicates that presidential efforts to direct nonenforcement on a categorical, prospective, and transparent basis can have strong constitutional roots. …[E]xecutive-branch implementation of the duty to supervise seems likely to result in greater and more overt instances of presidential direction. (P. 1929.)

The President as “Great Helmsman” a la Mao? Bolingbroke’s “Patriot King”? Not quite, of course: “Given that a core part of the duty to supervise is insuring legal accountability, such presidential policies must accord with governing statutory requirements or have a basis in the President’s constitutional authority.” (P. 1929.) We glimpse here especially clearly the deep complexity resonating throughout Metzger’s discussion. There is not just administrative law and constitutional law; not just administrative legal form and practice; not just direct and indirect constitutional law; but also an always present duality within constitutional law in substance—the duty to supervise always coexists with, is always in interplay with, other constitutional texts and concerns.

“The Constitutional Duty to Supervise” is—notwithstanding its length and intricacy—a proof of concept exercise. There is much therefore that is left out. For example, administrative law figures only very generally: there is no close look at its own jurisprudential controversies, no sense of its reformations and counter-reformations, no attention to long-running doctrinal perplexities like Chevron. There is not much attention to how, within constitutional law itself, the Fourteenth Amendment—its “due process of law” and “equal protection of the law” formulas—might interact with the duty to supervise in state and local law settings (for example, not much attention to DeShaney or Castle Rock); not much sense of supervision as a key problem with respect to police, prisons, etc.; no sense of how deep history—race, gender, and other profound “asides”—might press hard on ideas of what “right supervision” should be. With respect to the federal scene, moreover, there is not much attention to competing models: OMB insistence on cost-benefit analysis as an ever-present rationality maybe reducing the need for presidential supervision as such (surprisingly little discussion also of Cass Sunstein’s remarkably ambitious, inter-related works and pomps); statutory administrative pluralism as introducing a medium for judicial review grounded in versions of subject-matter jurisdiction, pretty much independent of administrative law per se, permitting apt matching of problems and agencies, again inter alia.

Not criticism—not really. In the end, rather, this: Gillian Metzger has attempted and landed a long jump.

Cite as: Pat Gudridge, Someone Who’ll Watch Over Me, JOTWELL (September 23, 2015) (reviewing Gillian E. Metzger, The Constitutional Duty to Supervise, 124 Yale L. J. 1836 (2015)),

Spillover Federalism

Gerken and Holtzblatt, The Political Safeguards of Horizontal Federalism, 113 Mich. L. Rev. 57 (2014).

An essay by Heather Gerken and James Dawson entitled Living Under Someone Else’s Law, 36 Democracy Journal 42 (2015) caught my attention several months ago. The topic was horizontal federalism, and the context was “spillovers,” extraterritorial effects that regulations of one state have on other states. Spillovers do not intentionally discriminate against a state’s neighbors or their citizens, do not favor insiders (citizens or businesses), and do not erect protectionist barriers at state lines. But spillovers have consequences, sometimes annoying, sometimes costly, for neighboring states.

Spillover examples include California emissions controls, Colorado marijuana legalization, and red state permissive gun-control regulations. Tighter emissions controls by California raised car prices to buyers in all states as national companies produced cars to comply with California rules. This adversely affected auto buyers elsewhere as surely as industrial pollution affected states downwind of the pollution. Likewise, recreational marijuana legalization increased drug trafficking across state lines, upsetting Colorado’s neighbors. Permissive gun sale laws in red states permit citizens in blue states to cross state lines, buy guns, and tote them home. Same-sex marriage bans in red states led, before the Supreme Court’s Obergefell decision, to concern in blue states: would their same-sex marriages be recognized (given ‘full faith and credit’) in neighboring states? The authors cleverly call this situation a “spillunder,” where under-recognition of one state’s law poses potential problems for its citizens when they are in other states.

In a longer article, The Political Safeguards of Horizontal Federalism, Gerken and co-author Ari Holtzblatt examine the underdeveloped legal literature and doctrinal signposts concerning spillovers and compare this virtual vacuum with the extensive literature concerning vertical federalism. They then suggest an approach to horizontal federalism premised on insights from vertical federalism scholarship.

As the authors put it, “lawyers hate spillovers.” When a state’s regulations affect its neighbors, the lawyerly instinct is to file suit, demand judicial intervention to halt the intrusion, citing the economic and political friction caused by the state whose legal regime affects its neighbors. Resisting this knee-jerk reaction, Gerken and Holtzblatt trumpet spillover benefits: they force productive conversations among political actors who otherwise would only listen to one side of arguments in accord with local constituency wishes. If the “Big Sort” isolates conservatives into red states and liberals into blue states, spillovers of red policies into blue states and the converse force politicians and their constituents to deal with a broader and less homogeneous regional and national political reality. There are benefits in harnessing this friction: efforts to formulate broader workable policies and greater democratic inclusion.

Perhaps, the authors say, political processes rather than lawyers and courts should sort out spillovers, just as politics generally resolves vertical federalism issues. There are also legal limits to federal power to override state law, but they are minor in the broad scheme of American governance. First, the Commerce Clause can’t be used to regulate “noneconomic” matters (Lopez, Morrison and NFIB). But it still affords broad regulatory powers to Congress, especially when coupled with the Necessary and Proper clause. (Wickard, Heart of Atlanta, and Raich). Second, Congress can’t “commandeer” state legislatures or other officials (New York and Printz), but it has plenty of other tools, such as conditional spending, to push states to comply with its policy preferences (Dole) up to the point of coercion (NFIB). Third, suits by private attorneys general have hit some sovereign immunity shoals (Seminole Tribe, Alden, and FMC). But a determined Congress can generally use broad governmental enforcement tools to bend the state to its will. And where federal legislation is valid, it preempts conflicting state regulation, thanks to the Supremacy Clause (Geier and Garamendi).

Contrast horizontal federalism. Does Congress step in whenever one state affects its neighbors? Generally no. If a state discriminates to favor (or disfavor) its own citizens and businesses, the judiciary might step in to manage horizontal conflict using the “dormant commerce clause” doctrine. Explanations range from theoretical (Congress is too busy, states could block remediation in Congress) to practical (enforceable legal rules generally deter most self-serving by states). But dormant commerce doctrine is much less robust for dealing with spillovers: one state’s regulations may impose externalities on neighbors so long as local benefits exceed those costs (Pike) and rarely does the Court’s calculus find a “burden” excessive.

Likewise, there is a bit of due process doctrine regulating spillovers. Where local juries go “whole hog” in imposing punitive damages on companies for conduct outside the state, the Court has found that would prevent other states from deciding “what conduct is permitted or prescribed” in the second state (BMW v. Gore and State Farm v. Campbell).

The problem Gerken and Holtzblatt systematically confront, to my knowledge for the first time, is whether political or legal models will best handle spillovers not systematically governed by federal law. They take on the problem first by showing that almost any state regulation will cause some level of spillovers onto neighbors. These spillovers are all over the board in how much costs they impose—from the trivial to highly significant. Then they argue that spillovers have beneficial effects politically; for example, state pushback operates as a check on the federal government. Likewise, state spillovers force neighboring states to confront each other concerning matters on which their preferred policies are antagonistic. This provides room for dissension and democratic discussion that might not occur if citizens with polarized policy preferences sorted perfectly into red states and blue states. There are some costs from the friction of spillovers, but no such issues today are even remotely close to splitting the country, as slavery did in the 19th century. Rather, they argue, “when citizens of one state must accommodate the preferences of another’s, they are enlisted in the practice of pluralism … A vibrant democracy depends not just on choice but on accommodation, compromise, and engagement … Spillovers force engagement and thereby spur the processes on which our democracy depends.” (Pp. 88-89.) Spillovers help break up enclaves and overcome political inertia. They sometimes lead to a national policy; other times they lead to pluralism and tolerance.

Gerken and Holtzblatt consider arguments opponents might have to their view that spillovers, despite costs, are often best left to political processes. First, they consider sovereignty arguments—that no state should be able to regulate in ways that spill outside its borders. But “silos” of sovereignty bear little relationship to how states interact in the real world. Second, can the courts even deal with spillovers? Courts can end disputes and declare winners, but rarely does victory foster compromise and democratic engagement. Further, Gerken and Holtzblatt argue that both horizontal and vertical conflict push the nation toward compromise: it hoists the “most honorable and least fun [aspect]” of democracy upon the elected, not the appointed.

Finally, the authors look at the institutional methods for safeguarding horizontal federalism. First, Congress can “referee interstate relations” if it will—and it should be encouraged to do so. Second, NGOs, interest groups, and institutions like the ALI have roles to play in mediating such conflict. Third, courts should play a “limited role” in horizontal federalism disputes “when the political process is unlikely to generate a solution.” They suggest that the courts look to Full Faith and Credit doctrine, which requires submission to “hostile policies” of other states “because the practical operation of the federal system … demand[s] it.” (P. 118.)

Democracy, the authors concede, is about self-rule. Yet, as they (rightly) point out, democracy also requires “interaction, accommodation, and compromise” – the salutary values a functioning account of horizontal federalism requires. To properly balance the countervailing principles of self-rule and compromise, the author’s finally ask states to “work it out.”

What I find appealing about this article is that it takes a concept—spillovers—and it work[s] out potential legal and nonlegal approaches to dealing with the concept. It cites the fragmentary scholarship touching on the topic and integrates it into a broader pattern. Then, sensibly, while working through a number of core issues connecting the bits of scholarship, it forges a framework even while calling for more specific scholarly attention to its component parts. As they note: “We are plainly at the beginning of the conversation … [but surely it’s a conversation] worth having.” (P. 120.) Indeed.

Cite as: Charles Shanor, Spillover Federalism, JOTWELL (August 7, 2015) (reviewing Gerken and Holtzblatt, The Political Safeguards of Horizontal Federalism, 113 Mich. L. Rev. 57 (2014)),

The Power of Promises

Richard M. Re, Promising the Constitution, 110 Nw. U. L. Rev. (forthcoming, 2016), available at SSRN.

Many questions about the meaning of the Constitution are disputed. But however we answer those questions, at some point most of us come to a different question: so what? Why do those words on a page have any moral grip on the three-dimensional world of human beings? In one of my favorite new articles of the summer, Promising the Constitution, Professor Richard Re takes on this question and its implications. The answer, he says, is the constitutional oath, which simultaneously commands much less and much more than many have assumed. (Full disclosure: Re is a friend and former classmate.)

Re’s article makes three major contributions. The first is to argue that the oath is what gives the Constitution normative force in our world. We should see the oath not as an empty political ritual, but as a solemn assertion of a promise, with all the moral force that a promise carries. Of course, many philosophers are skeptical about the moral force of promises; but Re surmounts their objections by turning to the democratic context of the oath. While immoral promises and coerced promises might lack moral weight, the constitutional oath today should be seen as neither.

Second, Re argues that the oath’s content has been misunderstood and overextended. Champions of interpretive pluralism sometimes argue that the oath empowers each branch, each officer, or each state to interpret the Constitution for themselves. Champions of judicial supremacy argue instead that the oath binds each office-holder to the Supreme Court’s interpretations. Re argues that the oath simply does not resolve such questions of separation of powers or federalism.

Third, Re argues that the oath binds each office-holder to the public understanding of “this Constitution” at the time of the oath. That formulation, in turn, has important implications. It means that the moral content of the constitutional promise is a positive question. To figure out what officers are obligated to do tomorrow, we must look to how our Constitution is understood today.

That formulation also tells us how officeholders should react to different kinds of constitutional change. The oath to the current Constitution obviously means that one takes for granted any changes that have happened before the taking of the oath. The current Constitution includes various amendments. Oath-takers today necessarily accept those amendments—even if they were once controversial.

But if the duty is focused on the time of the oath, what about subsequent changes? Re argues that the oath to the current Constitution includes the currently lawful rules of constitutional change, such as Article V. (Law professors debate whether there are others.) So a new amendment, or a new Supreme Court judgment, is generally part of the old oath. But there’s a catch: if a change is legally revolutionary, then it’s not part of one’s previous oath. The oath’s relationship to revolution may provide the hidden logic of Reconstruction jurists who narrowly read the Fourteenth Amendment, and of modern Justices who perpetually dissent from certain decisions that were issued over their initial outcry.

This is a lot of important ground to cover. But my enthusiasm for the piece is heightened because of the interpretive question it doesn’t cover: what is the current public understanding of “this Constitution?” Re observes a few elements of consensus, but is largely agnostic on this question. It’s a question that I have attempted to answer elsewhere, albeit briefly, in this essay on the “positive turn,” and more extensively in a forthcoming essay, Is Originalism Our Law? I argue that as a positive matter, our constitutional law today is an inclusive form of originalism. (Steve Sachs makes related arguments, to which I am also indebted, here and here.)

Re’s article demonstrates the stakes of that positive inquiry. If he is right that the oath commits officeholders to today’s Constitution, then we must discern whether today’s Constitution is one that continues to have its original meaning. And if, as I believe, a form of originalism is indeed our law today, then Re shows how originalism can continue to have normative force: not because of the deeds that were done by the dead, but because of the promises that are made by the living.

Cite as: William Baude, The Power of Promises, JOTWELL (July 10, 2015) (reviewing Richard M. Re, Promising the Constitution, 110 Nw. U. L. Rev. (forthcoming, 2016), available at SSRN),

A Revival of Lochner?

Thomas Colby and Peter J. Smith, The Return of Lochner, 100 Cornell L. Rev. 527 (2015).

Lochner v. New York (1905) has long been one of the most widely reviled decisions in Supreme Court history. The Court’s 1905 ruling striking down a New York maximum hours law for bakers under the Due Process Clause of the Fourteenth Amendment has been routinely denounced as callous, unjust, and based on blatantly fallacious legal reasoning. It is one of the leading members of the “anti-canon” of important Supreme Court decisions that almost all right-thinking people believe to be wrong. Thomas Colby and Peter Smith’s important new article argues that the longstanding dominance of this view of Lochner has begun to erode, at least among conservatives.

Colby and Smith provide an excellent account of why this trend began, and how it compares with previous developments in conservative and liberal legal thought. As they emphasize, even when the anti-Lochner consensus was at its height, liberals and conservatives opposed the decision for different reasons. For liberals, it became the leading symbol of an era in which the Supreme Court improperly intervened to shield “laissez-faire” economic policy against government interventions intended to protect workers and the poor. Especially after the New Deal revolution in constitutional law, they drew the lesson that Lochner was wrong because courts should generally stay out of “economic” issues, especially in cases where judicial intervention is sought for the benefit of the wealthy and business interests.

By contrast, most conservatives never objected to judicial protection of economic rights, as such, and many had always thought that labor legislation like that struck down in Lochner does more harm than good. For them, the error of Lochner lay in the fact that it protected an unenumerated right. Worse, it was a “substantive due process” right, which conservatives considered oxymoronic. They also associated substantive due process with the hated socially liberal decisions of the Warren and Burger courts, especially Roe v. Wade. Finally—and, to Colby and Smith, most important—conservative constitutional theorists believed that Lochner was wrong because it could not be squared with originalism, the dominant approach to constitutional interpretation on the right over the last several decades.

Over the last two decades, Colby and Smith explain, several factors have moved right of center constitutional thought away from the anti-Lochner consensus. One, of course, is that conservative and libertarian free market advocates generally disapprove of labor regulations like the ones upheld in Lochner. Free market economists and legal scholars have long argued that maximum hours laws actually harm workers by reducing their income and, in some cases, increasing unemployment. The law at issue in Lochner itself may well have been enacted at the behest of large bakeries and powerful labor unions dominated by native-born workers, for the purpose of stifling competition by smaller bakeries that employed mostly recent immigrants.

But this cannot, by itself, account for the evolution in conservative attitudes towards Lochner. After all, as the authors note, conservatives held similar views on labor regulation thirty years ago, when very few questioned the orthodox view of Lochner.

Colby and Smith instead emphasize changes in originalist constitutional thought over the last two decades. One is the shift from “original intent” originalism to “original meaning.” The former emphasizes the specific intentions of the framers of constitutional provisions, while the latter focuses on the public understanding of the provision in question at the time of enactment—either that of the general public, that of legal experts, or of hypothetical “reasonable” readers. From the standpoint of original meaning more so than original intent, there is extensive evidence that the Fourteenth Amendment was understood at the time as protecting a variety of property rights and economic liberties. Legal historians such as Ryan Williams and David Bernstein have shown that “substantive due process” protections for economic rights were not invented by the Lochner Court, but rather had a long history in American legal thought, including in the period around the time of the enactment of the Fourteenth Amendment. Whether or not “substantive due process” is a sound doctrine, it is not an ahistorical oxymoron, as previous generations of conservative originalists believed.

A second development stressed by Colby and Smith is the renewed interest in the Privileges or Immunities Clause of the Fourteenth Amendment among originalist legal scholars of a variety of ideological persuasions. There is a great deal of historical evidence indicating that the Clause was intended, at least in part, to protect economic liberties and property rights, and that its near-evisceration in the 1873 Slaughterhouse Cases was a serious mistake.

The notion that this Clause protects economic freedoms was not invented by modern conservatives and libertarians. It was forcefully defended in Justice Stephen Field’s famous dissent in Slaughterhouse, which attracted four votes, including that of Chief Justice Salmon P. Chase, one of the architects of the Republican Party “free labor” school of legal thought that heavily influenced the Fourteenth Amendment. But only in recent decades have modern constitutional law scholars begun to focus on this aspect of the Amendment. For conservative originalists who continue to oppose “substantive due process,” the Privileges or Immunities Clause offers a pathway for strengthening protection for economic liberties without relying on the Due Process Clause, and indeed without reconsidering Lochner directly.

Many left of center scholars also hope for a revival of the Privileges or Immunities Clause, though most of them do not want that revival to include substantial protection for economic liberties. The fact that there is such widespread criticism of the Slaughterhouse Cases strengthens the potential attractiveness of the Privileges or Immunities Clause as a vehicle for reviving judicial protection for economic liberties. While left of center jurists might oppose using the Clause for that purpose, on a variety of grounds, they cannot easily dismiss it out of hand, as would likely be the case with attempts at a direct revival of Lochner.

As Colby and Smith recognize, conservatives who wish to restore constitutional protection for economic liberties may well be influenced by their political and ideological support for this cause. In that respect, they are similar to liberals and others for whom ideological and legal commitments are not completely separate. But the authors also emphasize that they do not wish to “denigrate conservatives as unprincipled opportunists who consciously seek to subjugate the law to their political whims. To the contrary, we give credit to conservatives for abstaining from action in the absence of a strong theoretical foundation. . . . When conservative legal theory did not support their politically favored outcomes, conservatives laudably chose mostly to respect their jurisprudential commitments, at least in the case of unenumerated economic rights.” They interestingly contrast this tendency in conservative legal thought with the development of liberal constitutional thought from the 1930s to the 1960s, when liberal judges began to use judicial review to aggressively enforce a variety of “noneconomic” rights, before liberal constitutional theorists had articulated a strong and coherent rationale for breaking with early twentieth-century Progressives’ emphasis on across-the-board judicial deference.

Overall, Colby and Smith’s article is the most complete, thorough, and fair-minded analysis of the recent revival of support for judicial protection of economic liberties. Their careful, balanced approach is particularly commendable in light of he fact that they are not themselves advocates of either originalism or political conservatism.

I do, however, have a few reservations about their analysis. In some places, they posit too great a break between today’s conservative originalism and that of thirty to forty years ago. Colby and Smith suggest that earlier conservative judges and legal theorists were “concerned primarily with limiting judicial power,” while those of today have to a large extent broken with that commitment.

It is unquestionably true that, in the 1980s, conservatives such as Robert Bork, Antonin Scalia, and Attorney General Edwin Meese emphasized the need for “judicial restraint” and deference to the democratic process. But they also simultaneously advocated strong judicial enforcement of the original meaning of the Constitution, including in many cases where doing so required increased judicial intervention, rather than less. As far back as the 1970s, conservative Supreme Court Justice William Rehnquist wrote a series of opinions advocating stronger judicial enforcement of property rights and federalism-based limits on congressional power. Indeed, conservative Supreme Court justices’ partial revival of judicial enforcement of the Takings Clause of the Fifth Amendment since the 1980s in many ways prefigures more recent arguments for a reconsideration of economic liberties.

During the 1970s and 1980s, conservative originalists did not focus much on the tension between their advocacy of judicial deference to the democratic process and their advocacy of enforcement of the original meaning. More recently, originalists have had to confront that potential contradiction. While a few have chosen to subordinate originalism to judicial deference or to argue (increasingly implausibly) that there is no tension between the two, more have chosen originalism over deference when the two seem to conflict.

Another relative omission in Colby and Smith’s account is their downplaying of the fact that many of the leading originalist thinkers of the last twenty years, most notably Georgetown law professor Randy Barnett, have been libertarians rather than conservatives. Many younger right-of-center lawyers and legal scholars have also been influenced by the Institute for Justice’s effective advocacy of judicial protection for economic liberties and property rights. The libertarian public interest firm has litigated many high-profile test cases on these issues, many of them pitting poor and politically weak clients against powerful interest groups, thereby undercutting the traditional perception of judicial review of economic liberties as merely a tool for the rich. These developments have coincided with a general libertarian trend in right of center American thought over the last decade or so.

Relative to most conservatives, libertarians are less wary of the use of judicial review to constrain the legislative and executive branches, including for purposes of protecting a wide range of non-economic freedoms, some of which are anathema to social conservatives. Libertarians are also less likely than conservatives to be haunted by the specter of Roe v. Wade. While many libertarian legal scholars disagree with that decision, few see it as an evil of the same magnitude as it is in the minds of many conservatives. Many libertarians are pro-choice in their political views, and even most of those who are pro-life tend not to assign as much weight to the abortion issues as conservatives often do.

As Colby and Smith recognize, we are still far away from a broad consensus in favor of more than the most minimal judicial protection for economic liberties under the Fourteenth Amendment, even on the political right. When and if such a consensus does emerge among libertarians and conservatives, that may still not be sufficient to ensure robust protection for the rights in question.. History suggests that strong judicial protection for constitutional rights can only be firmly established if it achieves a measure of support in both major parties and on both sides of the political spectrum.

Thus, we are still a long way away from a true Lochner revival. Even if such a revival does happen, it would be far from the end of extensive government regulation of economic transactions. As Colby and Smith note, the Lochner-era Supreme Court upheld far more economic regulations than it struck down, usually upholding laws where the government presented substantial evidence that it was combating a genuine threat to public health and safety.

Colby and Smith’s article is not intended to address the normative debate over judicial protection for economic freedoms. Both sides in that debate have a variety of strong arguments, and we are unlikely to get a definitive resolution anytime soon. But they do provide a valuable account of why a serious debate over this issue has reemerged in the first place.

Cite as: Ilya Somin, A Revival of Lochner?, JOTWELL (June 15, 2015) (reviewing Thomas Colby and Peter J. Smith, The Return of Lochner, 100 Cornell L. Rev. 527 (2015)),

How Do We Know When Speech is of Low Value?

Genevieve Lakier, The Invention of Low-Value Speech, Harv. L. Rev. (forthcoming), available at SSRN.

Bedrock First Amendment law calls for the Supreme Court to apply strict scrutiny to the government’s content-based regulation of speech. Except when it doesn’t. Over time, the Court has identified several categories of expression as sufficiently “low value” to trigger a First Amendment analysis less suspicious than strict scrutiny, thus enabling greater government regulation of that speech. These categories have included commercial speech, true threats, incitement to imminent illegal action, “fighting words,” obscenity, defamation, fraud, child pornography, and speech that is integral to criminal conduct. This subject, and what we think we know about it, is the focus of Genevieve Lakier’s valuable new article, The Invention of Low-Value Speech. Especially useful and novel for its strong historical look at the long first era of First Amendment law prior to the twentieth century, it is also important as a refutation of the Court’s current approach that purports to rely entirely on historical analysis to identify categories of low-value speech.

Taking a categorical approach to First Amendment protection, of course, requires a methodology for determining which speech belongs in which categories. In its decision in United States v. Stevens, 559 U.S. 460 (2010), the Supreme Court surprised many observers with its insistence that historical tradition alone has driven its determination that a category of expression is of only low First Amendment value. The Stevens Court struck down a federal statute that prohibited the commercial creation, sale, or possession of depictions of animal cruelty. In so doing, the Court rejected as “startling and dangerous” what it characterized as the government’s proposed “free-floating test for First Amendment coverage . . . [based on] an ad hoc balancing of relative social costs and benefits.” To be sure, the Court started by acknowledging that, “[a]s the Government correctly notes, this Court has often described historically unprotected categories of speech as being ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’” The Court went on to assert, however:

But such descriptions are just that – descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor. When we have identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis. . . . [but we have instead] grounded [our] analysis in a previously recognized, long-established category of unprotected speech, and our subsequent decisions have shared this understanding.

Stevens thus made the descriptive clam that the Court has relied only on historical analysis to identify categories of low-value speech (i.e., that it has focused on whether courts have historically treated the contested expression as low-value), rather than on balancing analyses that identify contested expression as “low-value” when its threatened harms outweigh its capacity to further key free speech values.

The Court’s claim has attracted considerable criticism, and Professor Lakier’s is among the most powerful of these critiques. Lakier refutes the Court’s claim as a descriptive matter, engaging in extensive historical research to find that the list of “low-value” speech categories generated by the Court in the twentieth century has no basis in courts’ 18th and 19th-century understandings. She finds that for close to 150 years, courts did not divide speech into high- and low-value categories subject to differing levels of government regulation. Courts from the founding until the early 20th century instead consistently forbade prior restraints of all sorts of speech (including those today characterized by the Court as low-value), while remaining quite tolerant of government’s after-the-fact efforts to punish all sorts of speech—including those today considered by the Court to be of high value—to address the harms inflicted by such speech or to further the government’s asserted interests in morality and order. Lakier’s careful historical analysis by itself is an important contribution to the field, as it examines thoughtfully and in detail the largely unexplored terrain of courts’ actual approach to speech problems in the 18th and 19th centuries.

In addition to her descriptive claim that historical tradition does not actually explain the categories of speech currently identified by the Court as low-value, Lakier makes the normative claim that history should not drive that analysis. She argues that historical analysis not only would both under-protect and over-protect certain categories of speech, but that it also fails to deliver on its purported benefits. More specifically, she offers a thoughtful critique of historical analysis as a poor test of original meaning as well as a poor constraint on judicial discretion.

The Court’s splintered decision in United States v. Alvarez, 132 S. Ct. 2537 (2012), offers a recent example. There, the plurality and the dissent both purported to use historical analysis to reach very different conclusions about whether and when false statements of fact comprise a category of low-value speech. Each of the three opinions in Alvarez suggested that some category of lies is of sufficiently low value such that government should be permitted to prohibit it without satisfying the demands of strict scrutiny. Although both the plurality and dissent undertook to engage in historical inquiry in defining the contours of that category, each defined the relevant historical tradition quite differently. (Justice Breyer’s concurring opinion, in contrast, relied on purpose-based and pragmatic arguments rather than historical analysis to identify another category of regulable lies altogether.) Justice Kennedy’s plurality opinion concluded that only certain harm-causing lies have historically been treated as unprotected by the First Amendment, while Justice Alito’s dissent concluded much more broadly that lies have been historically unprotected apart from any harm they cause. In short, the historical approach to identifying categories of low-value speech is not without its own considerable subjectivity, and thus does not consistently deliver on its promise to limit judicial discretion.

Lakier’s nuanced prescriptions include a welcome refusal to pretend to make hard First Amendment questions easy. She recommends instead that courts more transparently engage in the challenging but important—and likely unavoidable—endeavor of examining whether and when contested speech furthers key First Amendment values in democratic self-governance, enlightenment, and autonomy.

As Lakier observes, “value-judgments in fact pervade First Amendment law. Attempting to hide these judgments under the cloak of history does not make them go away; it merely makes them harder to understand.” Lakier’s valuable work strips away this illusion and offers a much-needed return to reality.

Cite as: Helen Norton, How Do We Know When Speech is of Low Value?, JOTWELL (May 8, 2015) (reviewing Genevieve Lakier, The Invention of Low-Value Speech, Harv. L. Rev. (forthcoming), available at SSRN),