Originalism, Eh?

Jun 4, 2025 Leonid SirotaAdd a Comment

Leonid Sirota

If, as Adam Dodek once put it, originalism was long a “dirty word” in Canadian constitutional law, one reason for that was its perceived foreignness. Another was politics. As Colin Feasby has observed, for the judges and academics of the formative period after the enactment of the Canadian Charter of Rights and Freedoms in 1982, originalism was “a tool of conservative United States legal thinkers.” Preston Jordan Lim shows that they were quite wrong—and ignorant of their own history. Long before it was a gleam in Paul Brest’s eye, originalism was the method by which Great Depression-era Canadian scholars hoped to take their constitution back from the courts—or, more precisely, from the Judicial Committee of the Privy Council (effectively the British Empire’s supreme court, staffed mostly by the United Kingdom’s most senior judges), then the court of last resort for Canada.

Lim shows that “originalism constituted the primary theory of constitutional interpretation through which legal reformers” argued about the interpretation of what today is known as the Constitution Act, 1867—the text that contains most of the Canadian constitution’s key structural provisions. Admittedly, they did not have an especially clear theory of originalism. But it was their practice just the same. And one hardly needs to have parsed the interpretation-construction distinction or pondered whether there is something that interpretation just is to be an originalist—as the development of originalism in American law itself shows.

That originalism became the defining interpretive approach for scholars of the 1930s is, Lim suggests, no accident: “more so than any other major event since Confederation, the Great Depression exposed the frailties of the Canadian political order and caused Canada’s leading legal thinkers to scrutinize the Constitution.” The scrutiny took an especially critical turn when the Privy Council struck down key elements of the “Bennett New Deal,” named after the Prime Minister who instigated its enactment. As in the U.S. and the U.K., erstwhile constitutional certainties seemed just as inadequate to the times as the economic ones.

But, even when they were dissatisfied with the constitutional framework as interpreted by the Privy Council, scholars and authors of the reports of official inquiries tended to regard it as “a sound plan for government,” and demanded not a departure but, as they saw things, a return to it. They argued that judges had gone astray by ignoring evidence of the Canadian constitutional framers’ plans. Far from denigrating the framers of the Constitution Act, 1867, as would become routine in later decades, they sometimes came close, Lim writes, to “ancestor worship.” The framers, they argued, had created a constitutional framework that could have gone a long way towards addressing the issues of the 1930s—if it had just been allowed to operate without judicial meddling, or could be allowed to do so once more with the aid of constitutional amendment.

This, at least, is the broad-strokes picture. The main virtue of Lim’s article is that it adds a great deal of detail to it, drawing on modern originalist theory to analyze and categorize the variety of originalist-sounding arguments made by Depression-era writers, including those who were not necessarily thoroughgoing originalists themselves. Many focused on what they perceived as the intention of the framers—especially Sir John A. Macdonald, who would go on to become Canada’s first prime minister—to create a centralized government in which federal institutions would be able to resolve important economic issues. Others offered a competing account of the framers’ intentions, claiming that these included the preservation of provincial autonomy.

But a minority view foreshadowed “New Originalist” critiques of original-intentions originalism. Advocates of this view argued that one man’s aspirations were not indicative of the framers’ joint intent; that the focus ought to be on the interpretation of the constitutional text, not its authors’ statements. Whether or not they personally accepted this critique, others responded to it, engaging in debates about “the original public meaning of specific phrases” in the constitutional provisions setting out the respective areas of federal and provincial jurisdiction. One of these debates, which Lim recounts in detail, concerned the meaning of the provincial jurisdiction over “property and civil rights,” whose broad interpretation by the courts was at the heart of their rejection of the “Bennett New Deal.”

And to the extent that they saw improvements to be made to the Canadian constitutional arrangements, Depression-era scholars were optimistic about their prospects. Some, Lim explains, adopted a “framework originalist” posture, arguing that the Constitution Act, 1867 was sufficiently flexible to allow for governance responsive to the needs and wishes of succeeding generations. Many, though, acknowledged the need for constitutional amendment to meet the needs of the moment. (In the event, the only constitutional amendment made in response to the Depression was the enactment of section 91(2A), which granted the federal Parliament jurisdiction over “unemployment insurance.”) As Lim points out, this is all the more remarkable since the Constitution Act, 1867 was silent as to the procedure by which it was to be amended.

What most Depression-era writers on the Canadian constitution did not see as a solution is living constitutionalism. Indeed, Lim observes that “an entire chorus of voices saw sharp limits to” both its legal acceptability and to its ability to serve as an “answer to the economic and social woes of the decade.” Only much later would Canadian living constitutionalists embrace as their slogan a metaphor drawn from a Depression-era Privy Council decision, Edwards v Canada (Attorney-General), which they read as having described the Constitution Act, 1867 as “a living tree capable of growth and expansion within its natural limits.” Others have argued that Edwards gave no warrant for living constitutionalism, and I have suggested that its reference to the “living tree” concerned constitutional practice, not constitutional text, though not all Canadian scholars are persuaded. Be that as it may, Lim shows that whatever Edwards’ afterlife has been, the intellectual agenda at the time was ruled by different varieties of originalism—and, even more broadly, the widely shared sense, even among those who were not themselves originalists, that the meaning of a constitutional text is fixed and binding on the courts.

And yet, as Lim notes, “there is no doubt that originalism became less popular in the decades that followed the Depression.” If anything, this is a significant understatement. Even when Canadian courts engage in originalism, as they do from time to time, they would not be caught admitting to it. Lim hypothesizes, briefly, that the reason for this change “is the increased diversity of modern Canada,” as well as a longer historical distance from the founding, resulting in a loss of “affinity for the Fathers of Confederation and the Westminster Parliament.”

This does not seem to me altogether plausible. The rhetorical embrace of living constitutionalism in the 1980s immediately extended to the newly-enacted Canadian Charter of Rights and Freedoms, just drafted in Canada and by Canadians alone. No change in diversity, or desire to distance constitutional law from its British roots, could explain that. Besides, Canada had arguably changed less between the Depression and 1982 than it had between 1867 and 1930, when it had grown from four provinces to nine and welcomed its first large waves of immigrants from outside France and the British Isles.

Other factors were probably at play. Perhaps most significant was a desire not to replicate the experience of the cramped interpretation of the statutory Canadian Bill of Rights, though this arguably was no model of proper originalism at all. Perhaps, as Feasby suggests, Canadian lawyers and judges were by then looking to distance themselves from an interpretive approach that had come to be identified with the American legal conservative movement.

Most cynically, one might point out that, in the 1930s, living constitutionalism would mostly have empowered the British judges of the Privy Council. However, appeals to that court from Canada were completely abolished by 1949. Thus, by the 1980s, living constitutionalism was going to empower Canadian jurists—and, by extension, Canadian lawyers and scholars, who would find it much easier to influence them than to persuade London-based judges.

Whether Lim’s conjecture or my own surmises are right, the Canadian embrace of living constitutionalism was closely connected to the development of Canada’s independence and its own legal culture and tradition. It is hardly necessary to point out that this independence is now under rhetorical, and perhaps actual, threat from those who see ten vast provinces and three territories as one mere 51^st state in waiting. In the circumstances, it will probably be tempting for Canadians to double down on what they think makes their legal culture distinctive, while rejecting what many will perceive, however unfairly, as a legal philosophy associated with that threat.

In addition to its very considerable scholarly merits, it is these circumstances that make Lim’s article especially timely and important. It reminds us that, contrary to what one may be tempted to think, originalism is not a uniquely American phenomenon, let alone a theory reverse-engineered to justify policy outcomes congenial to the American right. As Lim observes, “originalism is deeply-rooted in Canadian legal history,” and its rise in the 1930s went hand-in-hand with “a rise in Canadian nationalism,” as well as, in many cases, with progressive politics. Whether originalism is (still, or again) right for Canada is a question that Canadians must answer on the merits, and not by reference to the views and policies of their former friends.

State Constitutions As A Bulwark Against Oligarchy

Apr 30, 2025 Rebecca ZietlowAdd a Comment

Rebecca Zietlow

What is the proper role for courts to play in ensuring the health of our democracy? In the early 21^st century, the principal threat to democracy is state capture by monied interests and what appears to be a rising oligarchic state. At a time when the president of the United States uses the South Lawn of the White House to record an ad for a car company owned by a billionaire who has donated hundreds of millions of dollars to his campaign, concern about state capture by special interests is one of this country’s most urgent problems. The federal courts have been called upon to police illegal and unconstitutional activity, placing a strain on our judicial system that threatens our democracy. However, they have proven unwilling to address the murkier problem of state capture by powerful and wealthy individuals who use the government to promote their own interests.

In his forthcoming article, Contesting State Capture, Lucien Ferguson shifts our focus from federal to state courts. Ferguson argues that state courts have a special role to play in preventing state capture, in part because state constitutions contain special provisions aimed at preventing this peril. According to Ferguson, some of the most urgent examples of capture include partisan gerrymandering and voter ID laws, which are all designed to aid one political party (the Republican Party), as well as Right to Work Acts that undermine the political power of unions. Ferguson maintains that these laws are “special acts” that violate state constitutions and common law doctrines. One can also think of examples that cut towards the Democratic Party, such as legislation that favors union organizing and plaintiff’s attorneys, significant sources of funding for Democratic candidates. Ferguson calls on state courts to enforce state constitutional provisions to constrain state capture from any source.

During the twentieth century, federal courts were viewed as threats to democracy because of their activist approach to economic legislation during the Lochner Era. At the same time, our country faced a different threat to democracy—the exclusion of African Americans from the political process, which resulted in legislatures enacting racially discriminatory laws. Eventually, the Warren Court adopted heightened scrutiny for racially discriminatory laws and other laws that reflected a failure of the political process. The Warren Court’s scrutiny of race-based government action sought to dismantle capture based on racial hierarchy. However, the Court adopted an attitude of extreme deference towards economic legislation, applying rational basis review to uphold state action which is rationally related to any conceivable government purpose. In cases such as Williamson v. Lee Optical and Ferguson v. Skrupa, the Court acknowledged that capture is a normal attribute of the democratic process. As a result, federal court enforcement of the Equal Protection Clause fails as a tool to contest state capture by private interests for their own private gain. Moreover, in cases such as Citizens United, the Court has erected barriers to campaign finance legislation that might reduce one cause of state capture: excessive spending on politics by private individuals and corporations.

Ferguson points to state constitutional provisions that were adopted during the late nineteenth century—when, as now, concentrations of wealth and powerful monied interests threatened democratic institutions. As Ferguson explains, many states responded by amending their constitutions “for the express purpose of empowering state courts to prevent state capture.” State constitutions include substantive provisions, such as requirements that legislation be general in nature, and serve a public purpose (as opposed to a private purpose). These provisions were intended to prevent special legislation, which they viewed as “a perennial fountain of corruption.” State courts also established the common law public purpose doctrine. Finally, states constitutionalized procedural restraints on legislative processes. According to Ferguson, reformers intended state courts to play an active role in policing the legislative process to prevent capture.

Notwithstanding these state measures, Ferguson argues that capture of state governments has been increasing throughout the country. He calls on state courts to remedy this by enforcing their state constitutions. For example, the Arizona Supreme Court employed the state constitution’s “Gift Clause” to strike down an agreement by the city of Phoenix to pay a private corporation to develop real estate within the city. The Supreme Court of Pennsylvania has enforced the state constitution’s germaneness requirement to prevent private capture of government resources. Other state Supreme Courts, such as Maryland’s, employ heightened scrutiny to evaluate the constitutionality of state subsidies for private development.

Ferguson acknowledges some drawbacks to his approach. Transferring power from representative institutions to judiciaries raises the same concerns about juristocracy that motivated the backlash to Lochner. However, as he points out, legislative bodies are simply not using their power to prevent the evils of state capture. The bigger concern is that unlike federal judges, most state judges are elected—and their elections have become the target of massive interest-based spending equivalent to many legislative races. Given this fact, perhaps Ferguson is unduly optimistic about the willingness and ability of state courts to bear the weight of protecting democracy in these uncertain times. Nonetheless, these times demand precisely the type of thoughtful and innovative approach that Ferguson addresses to solving this urgently pressing problem.

Constitutional scholars spend far too much time focusing on federal courts, and the federal government in general. In this article Ferguson provides a refreshing new perspective, inviting us all to rethink our perspective on both federalism and separation of powers.

“I Love Beating George Washington”

Apr 2, 2025 Paul HorwitzAdd a Comment

Paul Horwitz

Every era gets the constitutional scholarship it needs—after the fact. The Burger Court era saw elaborate efforts to justify the Warren Court. The rise of history and tradition on the Supreme Court has been met by new defenses and criticisms of…standard originalism. The tyro leadership of leading law reviews committed themselves to running constant “Abolish Everything” articles just as abolitionism transitioned from interesting-but-highly-unlikely to politically disastrous fantasy. The bell tolls the end of the fight just as the scholars climb into the ring.

Given his recrudescence, to go for le mot juste, the study of the—bear with me—constitutional jurisprudence of Donald Trump presents an interesting case. What was too late the first time—a consideration of what American constitutional requires by way of character in its office-holders—might now become newly relevant. Or it might be too late once more: not only practically ineffectual, but also a pathetic plea for behavior that the wider culture now treats with a mixture of indifference and contempt. Nevertheless, there is new cause for this work. In his short but sweet contribution Good Faith in U.S. Constitutional Law, Ethan J. Leib presents a useful summation of one strain of this character-based constitutionalism: officials’ duty to act in good faith. Its conjunction with an administration in which good character is as plentiful as rainfall in the Atacama Desert is, we might say, an act of exquisite lousy timing.

Trump’s first term saw the rise of a valuable literature on various direct and indirect aspects of character- and conduct-based examinations of legal actors, focusing on such concepts as political and constitutional “norms” or “role morality.” It also provided a boost to scholarship, predating Trump, that focused on the ways in which fiduciary principles such as the duty of good faith apply in public as well as private law. Leib, writing for himself and with co-authors, has been a leading voice among those arguing for “fiduciary constitutionalism.”

The main job of his latest contribution, evidently a chapter for an edited collection, is to summarize the ways in which good faith is “central to constitutional law, even as the apex Court seems only ambivalently committed to its ability to be useful in deciding cases.” As Leib notes, its centrality begins with the text itself. Just as marriage begins with public vows, so both Article VI and Article II of the Constitution mark the entry from private status to public office with a promise before witnesses: a binding oath to “support this Constitution.” The president is further bound to “faithfully execute” the office of president and the laws of the United States. Other portions of the text, such as the Emoluments Clause, forbid the kind of self-dealing that is an affront to fiduciary duty.

Here and elsewhere, the Constitution relies on the oath-taker’s understanding that any power he exercises stems from the proper execution of the office, not the unfettered will of the individual who occupies it. (“What are the highest places,” as a judge once put it, “but obligations of the greatest dewties?”) At the same time, by swearing, the oath-taker openly acknowledges that his private character and reputation have been fully yoked to his performance of his public duties. Or, as Robert Bolt’s Thomas More puts it, “When a man takes an oath, he’s holding his own self in his own hands like water; and if he opens his fingers then, he needn’t hope to find himself again.” Knowing that men are no angels, the Constitution’s crafters nonetheless envisioned officers who treated one’s conduct in office as a commitment of one’s honor—indeed, of one’s soul.

The commitment to good faith in the performance of one’s duties runs deeply through the Constitution, but not smoothly. The difficulty of discerning bad faith, and the judicial custom of assuming officials’ good faith, means courts are often reluctant to make law turn on tests of good faith and proper motive. Courts often frame defenses and safe harbors for official conduct in terms of their good faith. Conversely, they look for indications of evidence of improper or impermissible motivation when evaluating officials’ actions. In judicial review under both constitutional and administrative law, “smoking out bullshit” is a key function for the reviewer. (“Bullshit,” in the Frankfurtian sense of speaking without regard for the truth. Firing employees with sterling records for “poor performance,” with political appointees telling HR managers to revise past reviews and to cite poor performance regardless of the truth? That would be bullshit. It is also a lie, of course. But central to its bullshitiness is its choice of a barely plausible pretext with a casual indifference to its accuracy. Bullshitting is the dominant mode of discourse of the current Trump regime.)

Against this, Leib acknowledges that such decisions as Trump v. United States and Trump v. Hawaii indicate “irregular support for motivational inquiries on the current court.” That conclusion is further reinforced by the Supreme Court’s move toward history and tradition as the lodestar of rights analysis, in a way that replaces tiers-of-scrutiny inquiry into improper motivations with an effort to identify proper or improper laws by dint of provenance. But at base, Leib argues, concerns with good faith continue to rest “at the very foundation of U.S. constitutional law.” Assumptions about officials’ duties—to avoid self-dealing, to work for the good of others and not themselves, to wield power with care, and so on—remain essential to constitutional and administrative law work, he suggests, even if courts often maintain these values through second-order rules rather than direct investigation.

For Leib, the fact that courts are reluctant to inquire into officials’ good faith is understandable, given concerns about institutional competence; it’s simply another example of the ways in which courts’ “decision rules” often apply more clearly but also more narrowly than the underlying “conduct rules.” And the fact that there can be indeterminacy or under-determinacy in applying the requirement of good faith to constitutional officers, while “frustrating,” can also be seen as consistent with the important role of context in such inquiries. It reflects a desire not to “interrupt fiduciary morality that works better with a little room to grow without getting crowded out by micromanagement.” Leib concludes that good faith remains a central conduct rule for officials—one of “the very foundations of constitutional government in the United States”—even if the judicial treatment of that rule involves “careful calibration.”

This article is, to be clear, summary in nature. It is a starting point for those who may not have thought much about this conception of constitutionalism and the obligations of officials, but who are newly sensitized to the need to do so and would like to learn more in something less than 80 or 90 pages. It is concise and well-sourced, nicely tying together the argument for fiduciary constitutionalism’s relevance inside and outside of the judicial context. Its value lies in these things, not in real or self-alleged “novelty,” a quality prized by student editors because of their inability to select for depth or expertise, and which in turn has become internalized by law professors, acting not as scholars but as market participants.

Its value also, perhaps even primarily, lies in one more thing: its timing. That timing both supports its arguments and raises questions about them, or about their efficacy. Leib’s summation of fiduciary constitutionalism, as well as the work that he and others are continuing to advance, could not be more relevant right now. The current regime has pushed a more thorough-going unitary, centralized approach to the presidency than anyone in modern history, and joined those actions with a reckless rate of change and a slippery view of law and legal duty.

Under those circumstances, even a neutral or supportive observer of this president should be interested in the public duties, virtues, and commitments that are, as a matter of constitutional obligation, supposed to channel and restrain his actions. That person should be equally interested in how the oath, and other fiduciary aspects of office, are supposed to direct subordinates—from Elon Musk and Russell Vought all the way down to a lowly peon, like a Cabinet secretary—in the performance of their duties. One needn’t like or dislike the man or his policies to acknowledge that Trump’s approach to presidential administration demand attention to these questions, and to how they ultimately cash out in the courts.

Of course, one might be less supportive, one’s sense of reality not so purblind. One might see the administration for what it is. “What it is” isn’t incipient fascism, most likely. (Although this administration has shown an unmistakable eagerness to hire, hang out with, and champion fascists, along with Jew-haters, rapists, Blut-und-Boden freaks, and other thugs—and that’s just counting the Trumpian intelligentsia.) But this is certainly a personalist, patrimonialist, authoritarian administration, staffed mostly by the craven and the roguish—and all of it in the service, not of party or ideology, but of the whims, fads, resentments, corruption, and appetites of a walking id. The title of this jot is a quote from Trump himself, as he was delighting, Commodus-like, in Bill O’Reilly’s flattering lie that Trump is the greatest president in American history. In reality, Trump and his administration resemble Washington’s less than they do a semi-organized criminal enterprise, albeit with two key differences: In a well-run mob, the capos are able men who have guts, and the don is capable of occasional dignity, foresight, and good taste. (Historically speaking, the Mob was also much tougher on Russia.)

Leib’s introduction to fiduciary constitutionalism is especially valuable against this real-world backdrop. If nothing else, it provides the measure against which the current regime’s dizzying plunge away from honor and the rule of law can be evaluated. But Leib’s treatment does two things more. On the “conduct rules” side, it encourages us to think about the degree to which constitutionalism generally, and our Constitution specifically, not only assume but demand basic qualities of character and virtue. For all the usual talk of structures, incentives, guardrails, and the like, without those personal qualities all else is mere parchment barrier. The Constitution does not prevent officials from departing from the ordinary politics, policies, and practices we are accustomed to. But it does require something more than ordinary men and women—not only at the top, but also within positions of responsibility throughout the executive branch.

On the “decision rules” side, reading Leib’s piece in the current moment encourages us to think more about the courts’ increasing reluctance to think in terms of character, duty, or motive itself. The reasons for this reluctance are varied, and Leib does a good job of spelling them out in this context. But one wonders whether the courts’ “irregular support for motivational inquiries,” which Leib describes as stemming from nervousness about courts’ competence to judge such matters, does not also reflect those judges’ confident assumptions that the executive branch’s officials possess basic qualities of character and virtue.

Those assumptions rely in substantial part on the ordinary processes and customs that are in place and have been followed by both Republican and Democratic administrations. If those assumptions become plainly unwarranted, perhaps the courts need to adjust their approach to compensate. When the Court in Trump v. Hawaii refused to follow the tweets, it did so in the belief that rounds of litigation had forced the administration into something like a more normal process of interagency consultation, with concomitant amendments to the travel ban. There was some reason in this. What, then, should the justices do when it is clear that this round of the administration just is its tweets—that to strip it of its vulgarity and “hyperbole” is to miss the point entirely—and that the grown-ups who might conduct ordinary business with more than one eye on the law have been banished? The Supreme Court’s approach through the first Trump term was to nudge the administration back within the guardrails of ordinary process, while premising its grants of power on assumptions about the ordinary good faith of those who fill any given executive branch. The Justices are not morons. They know that those assumptions no longer hold. One would not be surprised to see the Court, at the point at which the “acoustic separation” becomes too vast, turn back to a more frequent and explicit use of motive inquiry. It certainly ought to.

We might finally ask whether these questions come too late. If it is, it will not be because of the extraordinary nature of this regime and its Dear Leader alone. It will also have much to do with the degree to which our very culture, both elite and popular, has simply dispensed with the very idea of character and virtue as central and necessary elements of individual and official conduct. The blame could be heaped on social media—and, indeed, one of the most striking aspects of the Trump regime is not that it lives on social media, but that it seeks to make the lies and vulgarity of social media normative offline as well as online: it sees politics as the continuation of Twitter by other means. The problem might be traced further back, to a hollowness at the heart of individualistic, thin versions of liberalism or neo-liberalism. And it might have to do with the extent to which those who reject liberalism, for the purported reason that it does not sufficiently foreground basic requirements of virtue, have instead filled the post-liberal space with paganism, hedonism, grifting, and der Wille zur Macht. Whatever the case, it may simply be that good-faith constitutionalism requires a vocabulary that we as a culture no longer possess. As I said: exquisite lousy timing.

This article certainly cannot answer those questions. But Leib’s chapter provides us with an excellent recapitulation of the basics of fiduciary constitutionalism—its basic tenets, the state of the field, and the issues it faces going forward. It is needed now more than ever and also, quite possibly, comes too late.

Mark Tushnet, Comparativism, and Global South Third Generation Human Rights

Mar 13, 2025 Mark KendeAdd a Comment

Mark Kende

“Retired” Harvard Law professor Mark Tushnet is legendary for the quality and quantity of his scholarship. Earlier in his career, he was a founder of the revolutionary Critical Legal Studies movement. Then in the 1990’s, he became a pioneer, reinvigorating the field of comparative constitutional law.  This important book contains numerous chapters related to Tushnet’s legacy. Although the whole book is worthwhile, I want to give special attention to law and political science professor Ran Hirschl’s spectacular chapter on Tushnet and the evolving field of comparative constitutional law, Comparative Constitutional Law: Reflections on a Field Transformed.

Hirschl initially mentions some of Tushnet’s books and articles on comparative constitutional law. One of Tushnet’s key books is Advanced Introduction to Comparative Constitutional Law. His 1999 Yale Law Journal article on the possibilities of comparative constitutional law, evaluating the different ways in which “comparing constitutional experience elsewhere,” if undertaken in a “cautious and careful” manner, might allow one to “sometimes gain insights into the appropriate interpretation of the U.S. Constitution,” was noteworthy both for its bravura intellectual style—the section on bricolage was especially interesting—and for its critical examination of future directions for the field.

As Hirschl shows, the vitality of that field is now beyond question. Decisions from the Supreme Court of Canada, the German Federal Constitutional Court, and the South African Constitutional Court are now widely known. In recent years substantial interdisciplinary work on autocracy has come to the fore. I would add that some books on comparative autocracy have even jumped academic boundaries and gained popular notice.

Next, Hirschl proceeds to a lengthy discussion of how political science departments overall have not sufficiently kept up courses on law and courts, especially in the comparative realm. He thinks this damages constitutionalism. This omission is especially ironic given the close political connection to law. By contrast, there was an earlier period in the late 20th Century where political scientists achieved fame for their work on real constitutional design. Tushnet—and Hirschl himself—have been substantially responsible for a shift back to cross- and inter-disciplinary work, with the modern field essentially being renamed comparative constitutional “studies.”

Hirschl next dissects the constitutional studies field. He asserts that countries in the North have generally been stagnant regarding constitutional change. He notes that some global Southern nations have been innovative, but that scholarship there has generally focused on a few nations, like South Africa and India. My own work on South Africa fits this category. Yet Hirschl gives exhilarating examples of more significant change in lesser-known nations within the “Global South.”

Numerous such countries have focused their constitutions on climate change and the environment, so-called third generation rights. The Supreme Court of Brazil has even characterized the Paris Agreement as a human rights treaty. Another major focus of some Southern constitutionalism is the dangers of urban density. As Hirschl points out, “If the entire world population (8 billion) lived in similar density conditions as Dhaka or Manila, it would fit within an area the size of Oklahoma.” Hirschl elaborates on how the metrics of political representation must be adjusted to account for increasing urbanization. He concludes by reiterating his powerful arguments that political science should refocus on these issues, and that scholars generally should highlight Global South nations. His survey of this comparative field is breathtaking.

There really are no strong arguments against his chapter, save for a friendly suggestion that some Northern nations may have been catching up some with the pace of change in the Global South. Students in Montana brought a powerful climate change case, though it was ultimately dismissed. France now allows some concrete constitutional review. And there has been a United Kingdom Supreme Court for a while. If study of the field continues to grow, in both the North and South, Tushnet will be due no small measure of the credit.

Undercover Investigations, Deception, and Democracy

Jan 17, 2025 Helen NortonAdd a Comment

Helen Norton

Intentional falsehoods often frustrate the purposes of the Free Speech Clause. They can—and often do—undermine a healthy democracy, interfere with enlightenment and the distribution of knowledge, and frustrate listeners’ autonomous choices. At the same time, however, laws prohibiting lies often trigger First Amendment concern because of the government’s dangerous potential for regulatory abuse.

In Truth and Transparency, Alan Chen and Justin Marceau explore a particularly fascinating slice of deception: lies concealing the speaker’s identity as a journalist or other undercover investigator. We can understand these as lies about the source of speech—in other words, lies about who’s talking to you. And because listeners find it so helpful to know the source of expression when assessing its credibility or value, law often forbids lies about the source of speech. Consider, for example, laws requiring disclosure of the identities of those creating and producing public campaign advertisements—laws upheld by the Supreme Court in the less famous part of Citizens United v. Federal Election Commission. Or laws forbidding folks from pretending to be law enforcement officers or other government officials.

Chen and Marceau nevertheless conclude that in the context of undercover investigations seeking to discover information in the public’s interest to know, lies about the source of speech deserve First Amendment protection. These, they assert, are the unusual lies that actually advance core First Amendment values by exposing the behavior of powerful actors, both governmental and nongovernmental.

Chen and Marceau make a compelling case for why information-gathering is a core First Amendment activity and why deception to gain access to information that’s in the public’s interest to know should be protected by the First Amendment. Examples of laws that restrict such deception—and thus, in their view, violate the First Amendment—include some states’ “ag-gag” statutes that prohibit individuals from seeking access to an agricultural facility through deception. Think, for instance, of an animal rights activist seeking employment at a meatpacking plant to observe and record animals’ treatment, while concealing their reason for seeking access to the facility (for examples, see here and here).

In explaining why these laws might run afoul of the First Amendment, Chen and Marceau point to the Supreme Court’s decision in United States v. Alvarez, where a plurality suggested that lies are protected by the First Amendment unless and until they inflict legally cognizable harm.

The Alvarez plurality didn’t define “legally cognizable” harm, instead offering some illustrative examples. These include the monetary harm inflicted by fraud, the reputational harm imposed by defamatory falsehoods, and the harm to the administration of justice caused by perjury. In contrast, the Alvarez plurality concluded that an individual’s lie about receiving the Congressional Medal of Honor (in violation of federal law criminalizing such lies) to boost his audience’s opinion of him inflicted no such legally cognizable harm. The plurality felt that the disrespect of being lied to—even if it shapes the audience’s decision about whether to listen to this person or spend time with him—is not harm sufficient to strip that falsehood of First Amendment protection given the prospect of governmental overreach.

What the targets of undercover investigations really complain about, Chen and Marceau explain, is their conduct’s exposure to public scrutiny and criticism. And that, the authors assert, is not a legally cognizable harm for First Amendment purposes. Indeed, unlike the lies at issue in Alvarez, deception that reveals matters of public concern can further key First Amendment values.

The constitutional issues triggered by undercover investigations also include whether and when the First Amendment protects the recording of information accessed through deception. And so Chen and Marceau also consider legal bans on recording certain activities or certain places. As we see, the story of undercover investigations is not only a story of law but also of technology. More specifically, it’s a story about the implications of 21^st-century expressive technologies—like drones, and the tiny cameras and recording devices that we carry on our persons all the time—for First Amendment doctrine developed to address very different 20^th century technologies. (For additional perspectives, see here and here).

Most compelling is the case for First Amendment protection for public recording of public officials engaged in public activities (known as “public-cubed” recording). Think, for instance, how little we would have known about what happened to George Floyd without the cell phone recording of his death. Darnella Frazier, the bystander who recorded Mr. Floyd’s killing, received a Pulitzer Prize for this.

Chen and Marceau continue on to argue—more provocatively, as they acknowledge—that the First Amendment should also be understood to protect even nonconsensual recordings on private property, so long as the recording addresses matters of public concern, seeks to serve journalistic or other truth-seeking functions, and the recorder was not trespassing (as would be the case for example, of an employee at a workplace or an invited guest). Under these circumstances, they assert, the First Amendment value of gathering and recording such information to inform the public generally justifies its protection from legal restriction.

To be sure, Chen and Marceau recognize that undercover investigations more generally raise legitimate concerns about invasions of individuals’ privacy. They rely on “public concern” as a key limiting principle that explains whether and when undercover investigations have First Amendment value—and also whether and when those investigations threaten unacceptable moral harm.

More specifically, they assert that undercover investigations “should be conducted only to gather information that is of public concern” and not, for example, to advance “a private vendetta or prurient interest in spying on another’s most intimate private moments.” “[M]isconduct, illegality, or wrongdoing” by powerful institutions and individuals is almost always in the public’s interest to know. Other behaviors likely present closer calls, and some may find “public concern” to have little value as a limiting principle given the Supreme Court’s observation that “the boundaries of the public concern test are not well defined.” Even so, the Court has often relied on that test, however unclear, to do important doctrinal work in defining the contours of defamation law, the free speech protections available (or not) to public employees, and other constitutional rights and responsibilities.

Much of Truth and Transparency addresses the First Amendment issues raised by undercover investigators’ lies of various sorts. But there’s more.

As Chen and Marceau relate, the history of undercover investigations is also a history of newsgathering and of journalism. Their many examples include the mid-1800s work of undercover journalists and abolitionists to observe and document the horrors of enslavement for publication to northern readers. And Nellie Bly’s late-19^th-century undercover work to reveal the awful conditions experienced by women housed in what were then called insane asylums. And the work of 1970s Chicago- Sun Times reporters who opened and operated a tavern on Chicago’s south side to learn about and expose the corruption endemic to the city’s health and safety inspections.

Especially interesting, in my view, is the book’s discussion of ambivalence towards undercover investigations even within the field of journalism, an ambivalence that reveals a complicated view of undercover investigators as both heroes and villains.

For example, Chen and Marceau explain how the Chicago Sun-Times efforts were nominated, but ultimately passed over, for the Pulitzer Prize due to controversy over the journalists’ misrepresentation of their identities (and even though other Pulitzer prize winners had also engaged in deception).

As Chen and Marceau show us, we can still see this ambivalence in some contemporary media organizations’ ethical standards. For example, they describe how the New York Times requires its journalists to disclose their identities to the people they cover (except for its restaurant critics, who can make reservations under fake names). Its policy also generally prohibits secret recordings even in jurisdictions that permit such recordings—except in extremely unusual circumstances where top management agrees that secret recordings are warranted.

For those interested in ethics and moral philosophy, the book explores various perspectives for considering the moral rightness or wrongness of undercover investigations that rely on deception. Such deception raises concerns about the autonomy or dignitary harms they may inflict upon their individual targets. So too do they trigger concerns about more collective harms if such deception undercuts our sense of a duty to be authentic in our communications with others. Chen and Marceau acknowledge the competing ethical frameworks for considering these concerns. Ultimately, they advocate a utilitarian approach to this question, concluding that the collective value of undercover investigations to reveal important information to the public outweighs their costs.

Finally, the book details the authors’ original empirical public opinion research to assess contemporary public attitudes about undercover investigations, in hopes of measuring our intuitions about the moral and instrumental costs and benefits of undercover investigators’ deception. I confess that I was surprised by what they discovered. First, they found considerable public support, regardless of political party affiliation, for the general idea of undercover investigations that include deception. And second, they found that the public’s support rose still higher when asked about specific applications of undercover investigations (for instance, to agricultural facilities or to elected officials) rather than about undercover investigations in the abstract. (The single exception to this trend? Chen and Marceau found that public support for undercover investigations did not rise when those surveyed were specifically asked for their reactions to undercover investigations of abortion providers.)

For those interested in constitutional law, Truth and Transparency challenges us to reconsider when deception does—and doesn’t—contribute to our understanding of the truth and thus when lies do—and don’t—warrant First Amendment protection. And all readers can find plenty to admire in the book’s skillful resort to history, ethics, technology, and social science to shed light on the paradoxical, and often provocative, practice of undercover investigations.

The Personal is Partisan-Political

Nov 25, 2024 Blake EmersonAdd a Comment

Blake Emerson

Changes in Supreme Court precedent and presidential practice have strengthened the President’s hand while destabilizing and dismantling the regulatory state. In case after case, the Court has maximized the President’s power to control and to fire administrative officials, such as the head of the Consumer Financial Protection Bureau. Administrative law judges, who number in the thousands and hear cases ranging from disability benefits to collective bargaining, may also soon be subject to direct political control. The trend towards presidential direction of administration, even contrary to statute, is only gaining steam. Last term, in Trump v. United States, the Court held that the President’s control over appointed officers is at the “core” of executive power, and thus beyond the reach of criminal accountability.

Presidents have eagerly taken advantage of these developments, and Trump surely will continue to do so in his second term. In his first go-round, President Donald Trump’s “schedule F” executive order purported to remove merit protections for vast swaths of the civil service with “policy-making” responsibilities. While much less aggressive, President Biden’s removal of the head of the Social Security Administration without cause likewise traded on the Court’s sustained effort to break down the wall between “politics” and “administration,” a separation that has been central to executive branch operations for over a century. With Trump preparing to occupy the presidency once more, the trend will likely only increase. Presidents and Justices have collaborated to remake the executive branch into an instrument of the President’s personal power and partisan interest. The second Trump term is likely to tell us much more about this partnership. In particular, we will learn what limits—if any—the Court is willing to place on personal rule. Katherine Shaw’s Partisanship Creep shows how these administrative-law problems are of a piece with other developments in constitutional jurisprudence and practice. These developments have given a greater scope to lawful political partisanship in government decision-making. Cases on public corruption, campaign finance, and partisan gerrymandering have loosened legal controls around purely partisan motives in basic public functions, from election administration to transportation infrastructure.

Shaw shows that this trend is a departure from a pre-existing constitutional settlement that restricted the role of partisanship in various ways. This settlement included legislation guaranteeing an independent, expert, apolitical civil service; case law on constitutional protections for government officers; and executive branch practices such as the norm against presidential direction of law enforcement decisions. Finally, the settlement has emerged from congressional impeachments from Justice Samuel Chase to Trump. All of these areas of law and constitutional practice converged on the view that partisan considerations should not play a role in at least certain kinds of government decisions.

Among these elements, Shaw’s discussion of constitutional cases concerning the civil service is particularly novel and instructive. In rejecting a First Amendment challenge to the Hatch Act in United States Civil Service Commission v. National Association of Letter Carriers (1973), the Court described the principle of “merit performance rather than political service” as a “judgment of history.” Proponents of civil-service impartiality will surely appreciate Shaw’s recovery of this resounding endorsement from the high court.

But Shaw’s study reveals that the exact nature of the civil-service settlement is uncertain. In Elrod v. Burns (1976), a plurality of the Court held patronage dismissals of state employees to violate the First and Fourteenth Amendments. Intriguingly, the concurrence from Justices Stewart and Blackmun focused on the narrower question of whether “nonpolicymaking” officials could be removed for partisan reasons. This category of “policy-making” responsibility is precisely the line at which schedule F would withdraw merit protections from civil servants. It is not clear that any “judgment of history” has been rendered on this contested point.

In defining and critiquing the role of partisanship in government decision-making, Shaw is particularly concerned with what she calls “low politics:” struggles for power between political parties, rather than disputes over ideology or principle. Such power struggles threaten basic constitutional principles such as the separation of powers, the rule of law, and good administration. As Shaw puts it, “one of the basic obligations of government is to treat members of the polity as possessing equal worth and dignity; a broad, merit-based selection process for choosing government workers best advances that goal.”

Unpacking the relationship between equality and dignity, on the one hand, and merit, on the other, will be of crucial significance in thinking through the implications of Shaw’s illuminating article. In particular, one might ask whether respect for the dignity of persons requires due care for the social and natural facts that promote their well-being. Respect for their equality might also require attention to those facts that determine whether or not they are able to enjoy equal opportunity or the equal protection of law. Such inquiries may require expertise and may be imperiled by undue political pressure. At the same time, as we bring facts to bear to determine the actionable content of “equality” and “dignity,” we come quite close to decision-making about contested questions of political value. Are these questions we want civil servants to answer? Under what conditions?

Another key question that Shaw’s analysis leaves open for further normative and descriptive study is the relationship between “partisan” and “personal” power. In Trump’s first impeachment, the House of Representatives found that Trump solicited the interference of Ukraine in the Presidential election “for corrupt purposes in pursuit of personal political benefit.” The impeachment managers referred to the “great personal political value” that a Ukrainian investigation would have for Trump.

When it comes to Trump’s style and practice of rule, the “personal” seems to matter more than the “partisan”—a political trait that is even more glaring in light of his recent appointments, which seem to converge around personal loyalty rather than adherence to a policy or party vision. He seems not to be interested in the health of the Republican Party as such, but rather has coopted it for his own purposes. Likewise, the unitary executive theory can be seen as facilitating the President’s personal rule, and his or her control over national politics, more so than it facilitates the rule of the President’s party. If, however, constitutional case law and presidential practice continue to sweep away the civil service system, it is conceivable that the party system, and Congress, could be reinvigorated by the need to staff agencies and the desire to preserve the party’s future from an idiosyncratic, purely personal presidency. Shaw has provided us with the legal materials and normative insights to pose and answer such urgent questions.

Locke(d) in a Vicious Cycle

Oct 18, 2024 Leah LitmanAdd a Comment

Leah Litman

The Supreme Court’s recent opinion in Securities and Exchange Commission v. Jarkesy invalidated the SEC’s mechanism for adjudicating fraud claims seeking civil penalties on the ground that the adjudications violated the Seventh Amendment. To explain that conclusion, the Court invoked, among other sources…Baron de Montesquieu (who was quoted by Alexander Hamilton after all!) and William Blackstone. Debates about constitutional interpretation are often peppered with references to a few Enlightenment thinkers, such as Montesquieu, Blackstone, and John Locke. Indeed, even nonconstitutional interpretation debates are as well; in the Court’s recent decision overturning Chevron deference, Loper Bright Enterprises v. Raimondo, Justice Gorsuch worked in some references to Blackstone in his concurrence.

It’s this phenomenon (at least its constitutional variety) that Christopher Havasy, Joshua Macey, & Brian Richardson seek to inter in Against Political Theory in Constitutional Interpretation. The article first documents the prevalence of invoking thinkers such as Montesquieu, Locke, Blackstone, and Emmerich de Vattel in constitutional debates. The justifications for doing so are often a bit underspecified, but the authors focus on a particular type of Enlightenment-gesturing: the citation of “Enlightenment political theorists as authoritative guides to U.S. constitutional meaning,” or as having “probative value to discerning Founding-era constitutional meaning.” The framers and ratifiers cited and invoked these thinkers in constitutional debates, this argument goes. So if they thought Enlightenment political theory relevant to constitutional interpretation, then we should treat the Enlightenment political theory the Framers invoked as providing authoritative insight into their interpretations of the Constitution.

The authors show why that oh-so-simple rationale cannot justify the practices of the Enlightenment-gesturers. For one thing, as the authors explain, constitutional decisionmakers sometimes try to import wholesale the views of a theorist who was invoked for one idea or another by the drafters and ratifiers—even though the drafters and ratifiers may never have gestured toward other parts or components of the thinker’s theory. Moreover, they show, it would be virtually impossible to conclude that the Constitution adopted the views of all of these thinkers, since their views on political theory and the range of ideal government structures varied, and were sometimes at odds with one another. (As the article notes, Montesquieu “is sometimes thought to have embraced a strict separation of powers,” whereas Vattel “thought it possible for a branch to vest another with ‘full and absolute authority’ so long as the people acquiesced.”) But still, the authors have more. The Constitution, they explain, departs in important respects from the visions and theories of all the Enlightenment political theorists whose views are supposedly embodied in the Constitution.

This was an article that desperately needed to be written. And it is written in razor-sharp ways that methodically expose the many flaws with current interpretive practices that loosely invoke or gesture toward Enlightenment political thought that may or may not have some basis in constitutional law. It concludes with the arresting claim that “that Enlightenment political theory should…be treated no differently than any other text: it possesses no inherent authority apart from its capacity to persuade.” Indeed, the authors’ case against using Enlightenment political theory as probative evidence of the meaning of the Constitution is so persuasive it led me to wonder whether the interpretive practices they document reflect a different kind of practice—one in which decisionmakers sample from the Enlightenment political theory they find persuasive because it matches their own political theory and their own vision for ideal government.

Whatever we may think of the spectacle of judges acting as political theorists, the authors don’t insist that they can never cite or discuss the Founding-era Enlightenment theorists as theorists who might influence today’s interpreters. The Enlightenment writers and their ideas “can provide general background evidence” of the contemporary understanding of particular constitutional “concept[s] or term[s].” But it’s just evidence. And judges citing these thinkers should at least provide “specific evidence of the use of Enlightenment political thought” by “the victors of American constitutional politics at the Founding,” as well as “persuasive evidence of consensus about what the Framers took a specific theorist (or group of theorists) to be saying.” In all, judges should exercise “historical caution and interpretive humility” in invoking the Enlightenment theorists. Of course, all of this—both the provision of serious evidence and the demonstration of caution and humility—is vanishingly rare when Enlightenment-gesturers start throwing around Vattel and Montesquieu.

Despite the power of the arguments in the article, I suspect constitutional decisionmakers are not going to relent in their enthusiasm for loosely sampling inconsistent Enlightenment political theory that is, in important respects, inconsistent with the constitutional design it supposedly helps explain, while insisting that they are providing authoritative evidence of constitutional meaning. Nonetheless, it is clear that Havasy, Macey, and Richardson have the better of the argument. This hazy political theory has little place in constitutional decisionmaking.

Imperfectionist Constitutional Theory

Sep 19, 2024 Evan BernickAdd a Comment

Evan Bernick

Joel Alicea wants to make the world a better place with constitutional theory and thinks that you should, too. More specifically: In choosing how to interpret a constitution, you ought to consult moral views which you believe to be correct, while making room for widespread social practices which aren’t entirely consistent with those views. It’s a testament to Alicea’s intellect, prudence, and rhetoric that readers are likely to be persuaded. His paper, Constitutional Theory and the Problem of Disagreement, feels less like an argument than a friendly conversation from which truth gradually but inexorably emerges.

Call to mind Raphael’s The School of Athens, depicting Aristotle and Plato in conversation. Plato gestures up, Aristotle gestures down. Both philosophers are perfectionists who believe that politics should be organized around an objective account of human flourishing. But one has his head in the realm of Forms and the other takes a more grounded approach. Alicea follows Aristotle.

In Aristotle’s usage, a “constitution” (politeia) was the form of a political regime. The idea of a constitution as normatively weighty higher law developed fitfully over several centuries. Among the contributors to that development was Roman statesman, lawyer, and republican martyr Marcus Tullius Cicero. Alicea thinks that Cicero grasped enduring insights that elude most normative constitutional theorists today.

Alicea describes two dominant approaches to normative constitutional theory. The first is “ideal constitutional theory,” long associated with Ronald Dworkin and his liberal epigones. Here it is exemplified by the anti-liberal common-good constitutionalism of Alicea’s sparring partner Adrian Vermeule. Ideal theorists like Vermeule “construct[] constitutional theories on the basis of controversial moral truth claims[,]” and they’re right to do so. But they err by “plac[ing] little … weight on the practical consideration of whether their ideal theories are compatible with our pluralistic social practices.” The other dominant approach to constitutional theory is “practice-based theory.” Exemplified by living constitutionalist David Strauss and originalist Will Baude, practice-based theory is grounded in “social practices that are broadly shared.” Practice theorists are right to think that constitutional theorist must accommodate morally nonideal social practices. But another David was right in contending that you can’t derive an normative “ought” from a descriptive “is.”

Alicea’s Ciceronian contention is that normative constitutional theory ought to be informed by controversial moral truths and accommodate nonideal social practices. Alicea argues that there’s no coherent way to do normative constitutional theory without believing in some moral truths. Indeed, practice theorists don’t really refuse to get normative. Strauss claims that common-law constitutionalism strikes the right balance between the (normative) values of authoritatively settling questions and settling them in ways that people think make sense. Baude maintains that original-law originalism helps officials discharge their moral obligations to keep their constitutional promises. But Alicea contends that practice theorists don’t adequately justify their approaches because of their “desire to avoid relying on moral frameworks.”

Like Vermeule, Alicea is committed to identifying the morally best constitutional theory. He doubts, however, that any constitutional theory which disregards practice will be morally best. We can think of his own approach as imperfectionist constitutional theory. Alicea seeks as much moral perfection as is possible in a morally imperfect world, and that means accommodating morally imperfect institutions.

Why? Because imperfect people are emotionally attached to their imperfect institutions. Alicea draws upon Edmund Burke’s account of the role of “prejudice”—understood as stable emotional attachment—in sustaining existing practices and resisting efforts to undo them. Owing to prejudice, a seemingly rational intervention in a less-than-perfectly-rational social order may generate worse moral consequences than the disease.

Readers might be tempted to raise a series of normative questions about how much deference Alicea thinks nonideal practices ought to be given. But Alicea’s article isn’t an argument for Burkean conservatism. If you’re sold that practice should carry some normative weight in constitutional theory, you’ve bought what he’s selling. He sold me. Indeed, the only part of Alicea’s paper that I’m not sure I’m sold on is one which is expressly put forward as a “sketch.”

Alicea sketches a distinction between constitutional theory and constitutional design. He conceptualizes constitutional design as a means of addressing the problem of widespread disagreement about controversial moral claims—what John Rawls called “the fact of reasonable pluralism.” Alicea describes constitutional design as “the practical task of constructing a governmental system suited to a particular people with a particular history and set of social practices.” Like constitutional theory, then, constitutional design is supposed to be sensitive to nonideal practice.

So constitutional design has normative content as well as descriptive content. Constitutional design doesn’t necessarily take place through morally ideal processes or produce ideal positive law. But not every process for creating higher positive law will qualify as constitutional design. A military invasion followed by the imposition of positive law that is designed to extract resources from a subjugated population certainly wouldn’t qualify.

Imagine, however, that existing governments send delegates to a convention with the charge of amending the terms of an existing confederacy. Many of the delegates are economic elites and represent governments that enslave large proportions of their populations. A supermajority of the delegates decide to scrap the confederation in favor of an entirely new plan of government that subordinates the existing governments to a new national one, systematically favors enslavers, and contains multiple provisions that are designed to further elite economic interests.

The latter paragraph is, of course, a tendentious account of the Philadelphia Convention which Alicea describes as a “paradigm case” of constitutional design. This account may be wrong (or at least overstated). Still, it’s plausible enough to raise the possibility that Alicea’s concept of constitutional design may be less accommodating of nonideal practice than he thinks. Few entities which we generally refer to as constitutions may be the products of Alicean constitutional design. How should we think about the rest?

But suppose that the Philadelphia Convention qualifies as constitutional design. One of the longest-standing objections to the U.S. Constitution is that it’s too difficult to formally change and thus enables the dead to rule the living. Alicea doesn’t leave much space for legitimate informal constitutional change. Indeed, Alicea discusses constitutional change only when criticizing constitutional theories which permit “significant changes to our constitutional system…through constitutional adjudication.”

The U.S. constitutional order has changed without formal amendment—and not just through constitutional adjudication. Thus, if we focus solely on the framing and ratification of the Reconstruction Amendments, we might be able to see something that looks like constitutional design. But those formal changes were only possible because the constitutional order had already been materially transformed. Transformative acts included insurgency against enslavers following the enactment of the Fugitive Slave Act of 1850; mass, biracial mass politics that elevated an antislavery party to federal power; and a general strike of forced laborers who left plantations for Union lines.

We ought to acknowledge and celebrate empowering constitutionalism that has restructured our politeia to enable more people to lead flourishing lives—even if it doesn’t come via Article V. We ought to set it in opposition to a dominating constitutionalism that is calculated to give some people arbitrary power over others, regardless where it comes from. In her invaluable analysis of what she terms our constitutionalism of force, Farah Peterson has observed that “[t]he Ku Klux Klan’s campaign of terror defined the scope of the Reconstruction Amendments more than its framers’ intentions did, a scope formalized after the fact in Plessy v. Ferguson.” Recognizing, condemning, and resisting—forcefully if necessary—efforts to transform constitutions for the worse is no less morally important than designing them well in the first place.

You can only do so much in one paper, and Constitutional Theory and the Problem of Disagreement is a remarkable achievement. Still, there’s more to American constitutionalism than Alicea seems to capture in his theory-design framework. There is the constituent power of the popular multitudo, which courses through, sustains, and can transform any constitution worth having. Every person who lives within a constitutional order should be able to participate in public institutions which are responsive to their judgments, desires, and demands, and which increase their power over the conditions of their lives. If they don’t exist, we should constitute them—and recognize that our constitution has changed as a consequence. The Platonists among us might not consider such constitutionalism ideal. But as Alicea reminds us, we don’t live in the realm of Forms. We are at our best when we strive for perfection with our feet on the ground. b

The War on Drugs as a Constitutional Failure

Aug 8, 2024 Ilya Somin3 comments

Ilya Somin

If one of the purposes of constitutional law is to protect liberty against abuses of government power, the War on Drugs must be regarded as one of America’s greatest constitutional failures. Over the last century, and especially since its expansion beginning with the Controlled Substances Act of 1968, the War on Drugs has led to thousands of needless deaths, the imprisonment of hundreds of thousands of people, and severe violations of civil liberties—all without doing much to curb the social problems of drug abuse and addiction. With rare exceptions, constitutional law has done little to curb these great evils.

In The Constitution of the War on Drugs, David Pozen gives us the most through and insightful overview of this failure to date. As he demonstrates, there were a number of plausible constitutional arguments for curbing the War on Drugs that—if accepted by the courts—might have significantly limited at least the most severe abuses. But, for the most part, they were rejected. He also offers useful suggestions for future strategy by drug law reformers.

Pozen’s book is an impressive achievement, and there are many valuable lessons in it for both constitutional law scholars and those interested in the War on Drugs and criminal justice. But I do have some reservations about both his historical and doctrinal analysis, and his normative prescriptions.

As Pozen ably documents, the constitutional stage for the modern War on Drugs was set by two major developments of the Progressive and New Deal eras. The first was an expansion in the understanding of state “police power.” Previously, many paternalistic regulations were likely to be struck down under the Due Process Clause of the Fourteenth Amendment or its state equivalents. The rise of anti-gambling and alcohol prohibition movements helped change that, leading courts to give state governments more leeway. This undermined potential individual-rights challenges to drug prohibition.

The second big shift was the vast expansion of federal regulatory power under the Commerce Clause, with decisions like Wickard v. Filburn (1942), giving the government the power to regulate almost any seemingly commercial activity, no matter how local. This undermined previous constraints on federal power that restricted Congress’ authority to pass laws that forbade the mere possession or in-state distribution of goods and services. Recall that the adoption of nationwide alcohol prohibition required the enactment of a constitutional amendment (later repealed). After the New Deal revolution, no such constitutional amendment was (at least according to the Supreme Court) needed to institute sweeping federal drug prohibition.

While these early twentieth century developments opened the door to drug prohibition, Pozen explains that some jurisprudential trends since the 1960s made constitutional challenges to the War on Drugs potentially feasible.

Beginning with Griswold v. Connecticut (1965), which struck down a state law banning distribution of contraceptives to married couples, the Supreme Court issued a series of decisions protecting various personal liberties under the Due Process Clause of the Fourteenth Amendment, particularly those relating to reproduction and bodily autonomy. This opened up the possibility that the right to take illegal drugs might be similarly protected.

Later, a more conservative Supreme Court once again began to enforce limits on federal Commerce Clause authority, starting with United States v. Lopez (1995). This created hope that at least some types of federal drug prohibition might be invalidated as beyond the scope of congressional power.

Sadly, neither approach had much success. With the exception of a few notable state supreme court rulings, courts largely rejected the idea that constitutional rights of bodily autonomy extended to the use of illicit drugs. On the federalism front, in Gonzales v. Raich (2005), a 6-3 Supreme Court ruled that Congress’ power to regulate interstate commerce was broad enough to encompass even a ban on the possession of medical marijuana that had never crossed state lines, and never been sold in any market within a state.

Pozen also goes over other several other types of constitutional challenges to the War on Drugs, including arguments that it violates freedom of speech (because drug users often partake for the purpose of communicating messages or changing their states of mind), freedom of religion (some illegal drugs are used for religious purposes), and that the severe punishments inflicted on some people convicted of drug crimes violate the Eighth Amendment. In each case, the challenges either failed or only succeeded in a very narrow range of circumstances that had little effect.

As Pozen emphasizes, both liberal and conservative jurists played a role in the defeat of constitutional challenges to the War on Drugs. Neither come off well in his book.

Like many other scholars, Pozen also highlights the role of racism in the growth of the War on Drugs (Ch. 3). Many prohibitionist policies historically targeted drugs associated with blacks and Hispanics. But he also rightly cautions against overestimating this factor. As he points out, the expansion of the War on Drugs from the 1960s to the late 1980s was actually supported by some key black political leaders and members of the black community, on the theory that stronger enforcement might help protect minorities from the perils of gangs and drug addiction. Prominent black members of Congress even initially backed the notorious “crack-cocaine” disparity (under which mostly black crack dealers and distributors were punished far more severely than mostly white purveyors of cocaine), because crack was seen as a menace to inner-city black communities. These circumstances—combined with the facially neutral nature of the drug laws themselves—made it difficult to challenge drug laws on the theory that they unconstitutionally discriminate based on race and ethnicity.

Pozen’s otherwise thorough account does unduly neglect one important aspect of the story: the fact that the most severe drug war penalties are usually reserved not for people guilty of mere use or possession of drugs, but for those who produce, sell, and distribute them. Since the New Deal era, left-liberal jurists—and even many conservatives—have been wary of strong judicial review of “economic” regulations. This was at the root of both the New Deal Commerce Clause revolution (breaking down federalism restrictions to congressional power) and the Supreme Court’s rejection of judicial protection for most economic liberties and property rights.

Seriously curbing the War on Drugs would have required courts to overcome this allergy to scrutinizing “economic” regulation. Progressives who (rightly) seek stronger judicial scrutiny of the War on Drugs will need to overcome at least some of their scruples regarding judicial review of economic transactions.

To be sure, judicial protection for some supposedly noneconomic personal liberties has led to invalidation of laws that restrict related commercial activity. For example, Griswold invalidated a law that restricted the sale and distribution of contraceptives. But, in general, even constitutional rights that get strong judicial protection in other respects often stop short when it comes to regulation of commercial transactions. For example, Lawrence v. Texas (2003) struck down laws banning same-sex sexual relations; but its respect for personal sexual autonomy stopped short of invalidating laws banning prostitution. Stanley v. Georgia (1969) protected the right to use and possess pornography in the home but did not strike down laws banning the sale and distribution of pornography.

As Pozen notes, there is a substantial originalist basis for much broader protection for bodily autonomy under the Due Process and Privileges or Immunities Clauses of the Fourteenth Amendment. But a right to bodily autonomy broad enough to invalidate, or at least significantly curtail, laws banning the sale and distribution of currently illegal drugs would also lead to at least partial invalidation of much other paternalistic “economic” legislation. For example, current law bans organ markets, thereby restricting the autonomy of potential organ donors, and consigning thousands of people to a premature death, due to kidney shortages. Significantly curbing the War on Drugs by expanding judicial protection for the right to bodily autonomy would require breaking down the aversion to judicial review of “economic” issues.

I think it should be done! But, interestingly, Pozen himself seems ambivalent. In the book, he decries growing judicial protection for commercial advertising of legal drugs. Similarly, one of the few areas where there has been constitutional progress against the War on Drugs in recent years has been in the area of asset forfeitures, where the Supreme Court has begun to limit law enforcement power to seize property supposedly used in drug crimes. Rather than praising this development, Pozen derides it as “commodity fetishism” under which “[t]he owner’s property receives more protection than the owner himself.” (P. 112.)

This position is problematic. Asset forfeitures cause great harm to property owners—particularly poor and minority owners—allowing the government to seize cars and other valuable assets with little due process. The Court’s apparent willingness to significantly curb these practices—signaled in a recent decision issued after Pozen’s book went to press—should be applauded. And it makes sense for the Court to use the Eighth Amendment more aggressively in forfeiture cases. The Amendment specifically bans “excessive” fines, while other types of punishments are forbidden only if “cruel and unusual.”

Another issue Pozen likely should have addressed is the way the War on Drugs has weakened Fourth Amendment protection against “unreasonable” searches and seizures. It often seems as if there is one Fourth Amendment for drug cases, and another (less deferential one) for everything else.

Looking forward, Pozen is relatively pessimistic about future constitutional challenges to drug laws, though he still urges them to continue. He also advocates using constitutional arguments to attack drug prohibition in the court of public opinion and the legislative arena.

Pozen is somewhat overly pessimistic about the potential for federalism-based challenges. Three of the five conservative justices then on the Court dissented in Gonzales v. Raich, mentioned earlier. Justice Clarence Thomas, who wrote a forceful dissent in Raich, has more recently signaled interest in reversing that case. It’s possible there might now be a majority on the Court for doing so. The shifting ideological valence of constitutional federalism may lead one or more liberal justices to support that position, as well. One can potentially imagine a Supreme Court decision striking down laws banning possession and at least some types of in-state distribution of drugs. While that would not end the War on Drugs, by any means, it would give more liberal states greater room for experimentation.

Other types of constitutional challenges to drug laws have a more difficult path to success, if any. I am skeptical that free speech and freedom of religion challenges can ever lead to more than marginal progress, or that they deserve to do so. The same goes for Eighth Amendment arguments.

On the other hand, bodily autonomy theories grounded in originalist arguments might have more of a chance, albeit it will still be very difficult. The Supreme Court’s repudiation of abortion rights in Dobbs need not necessarily preclude such progress, as the Court repeatedly emphasized that abortion is a special case, given the argument that laws restricting it protect innocent life (that of the fetus). Drug prohibition, by contrast, actually threatens the lives of innocents, as the carnage of the War on Drugs shows. However, any major progress would depend on judicial willingness to review at least some “economic” regulations more aggressively.

Historically, successful constitutional reform movements have relied on a combination of litigation and political action. That was true of the Civil Rights Movement, the feminist movement, advocates of same-sex marriage, and others. Opponents of the War on Drugs would do well to learn from this history, as well as that of past efforts to impose constitutional constraints on drug prohibition. Pozen’s book is an invaluable tool for understanding that history, and hopefully creating a better future.

One or Many More or Less

Jul 9, 2024 Pat GudridgeAdd a Comment

Pat Gudridge

Neither fish nor fowl? Canons of statutory interpretation seem to exist in a liminal space. They react to statutory language, for example, without obviously fitting “inside” any singled-out statute particular authorization. Maybe canons are expressions of judicial statecraft—ad hoc implementations of adjudicative norms, rather than primary legal instruments. We still remember Brandeis and Frankfurter and Bickel, don’t we? Even so, we ought to want to know where canons come from.

Anyone aware of the well-established textualist turn in statutory and constitutional interpretation these days likely recognizes that textualisms and canons don’t always mix well. The controversy lies mainly with substantive canons. These are treated as somehow associated with the Constitution, not simply investigatory abbreviations or cues for the reader of the statute.

Well-put analyses are readily at hand. Professors Eidelson and Stephenson call attention to two writers in particular. John Manning wrote extensively on these questions, beginning around the turn of the century and running through fifteen prolific years, until he enlisted or was drafted into administrative service. His studies were and are clear, thoughtful, and well-elaborated: skeptical of quick conclusions, attentive to the virtues of close readings of both statutes and constitutional passages, and ready to work through possible tensions and reconciliations. Manning’s writing is very easy to applaud. Eidelson and Stephenson also focus heavily on a lengthy, well-done article published by then-Professor Amy Coney Barrett in 2010.

Acting Provost Manning and Justice Barrett, as they now are, readily acknowledge the tensions that textualism and substantive canon-mongering generate if pushed close together. That’s why Manning often endorses detailed scrutiny of the canons, an approach that (he expects) should result in greater awareness of the intricacy of this relationship. Statutory and constitutional words, for Manning, both require an approach that stresses tense and detailed formulations and therefore may not yield easy interpretive allegiances. He rejects abstract constitutional proclamations and the hidden work they entail.

Way back in 2010, not-yet-Justice Barrett was not especially concerned by frequent judicial invocations of “equity of the statute” and the like, however plainly such invocations depart from modern textualism. (Manning, by contrast, had already voiced criticisms.) Barrett also thought that attention to constitutional intimations, suppositions, or abstractions did not disserve statutory “fidelity.” “Faithful allegiance” was an overall judicial duty.

Eidelson and Stephenson see things differently. They seem to want to confront statutory readers like Barrett with the brute fact of the conceptual incongruity between textualism as it is understood today and the substantive canons. Merely “acknowledging” that incongruity is not enough. They want to confront textualists with a hard, even ruthless choice between, as it were, full-fledged cultural revolution or nothing. Textualism is either pure and substantive-canon-free, or it is workable, stumbling along with the existing substantive canons in tow—but not true textualism.

This is all very bracing.

Canons of construction are—at least sometimes—immediately constitutional in origin, and therefore straightforwardly preemptive. We know that Article IV of the 1787 United States Constitution prescribed several simplifications, easily read as already-in-place constitutional canons of construction. Simple tests address the status across states of legally “mobile” legal documents. The same is true of judgments, arrest warrants served across states (extradition), and claims to standard legal privileges and immunities open to cross-state travelers. Enslavements established in one state hold true in all without close scrutiny. In Prigg v. Pennsylvania, Joseph Story emphatically decreed that all states, whatever their own policies, were constitutionally obliged without question to assist the return of fugitive slaves. This mandate, Story declared, was an existentially fundamental constitutional premise.

Did the Fourteenth Amendment turn Prigg around? Was there now, as of 1868, a constitutional premise replacing the commitment to slavery’s success? Did it reside, perhaps, in the first sentence of Section One and its promise of equal citizenship? Did the Fourteenth Amendment create other canon-like rules for constitutional readers—and make clear that they could be found elsewhere in the Bill of Rights besides? “One person, one vote,” for example, followed from Section One’s promise, as Earl Warren intimated in Reynolds v. Sims. We might take a similar view of the “equal citizenship” construction that was treated as given in Ex parte Endo. Maybe Miranda warnings, at least in Warren’s initial account, were one step removed, but still sparked by the Constitution. And how about the tort reform included in Sullivan? We might recall Henry Monaghan’s virtuosity in naming and elaborating “constitutional common law.” Reworking his insight slightly, we might see constitutional common law not as a general phenomenon itself, but as the artifact of particular constitutional commitments and circumstances. (Sullivan may be one such artifact.) On this view, we can add to “the equity of the statute” the concept of “equities of the Constitution.”

Professors Eidelson and Stephenson seem to suppose that in the cases that interest them, a particular statute stands up front, serving as the primary focus for the legal reader. Other legal instruments are more or less proximate hazards, unfortunate or unwelcome intruders who simply complicate the job of interpreting the primary statutory text. Why make this assumption? Manning, by contrast, treats separation of powers and federalism preoccupations as relevant raw materials too, even if their presence introduces inescapable complexity to the statutory reader’s task. Even before she took the judicial bench, Barrett wrote as though she were already thinking from within a more adjudicative perspective, or at least one version of such a perspective—one that is judiciously tolerant of the inevitability of ad hoc accommodations in judicial opinions. Perhaps the difference between Eidelson and Stephenson and writers like Manning and Barrett is one of forum-setting. Maybe academic writing, at least, is not the right place for such catholicity. Jurisprudential nods and winks are all very well for judges. But academic apologists for and theorists of textualism have no such excuse. They must confront the tension between textualism and the substantive canons head-on.