David E. Pozen & Adam M. Samaha, Anti-Modalities
, 119 Mich. L. Rev.
A specter is haunting modern American legal scholarship—the specter of branding.
Whether it is a marketplace of ideas or just a marketplace, legal scholarship today overflows with neologisms, “I call this”-es, and other efforts to hawk our wares to law review editors and, perhaps, other scholars. Useful at times, branding is often unnecessary or silly. It routinely announces a purportedly un-noticed phenomenon that in reality fills whole library shelves. (One awaits with resignation the inevitable article proclaiming, “I call this activity, in which two parties reach a binding and often memorialized exchange of promises, agreementification. It urgently deserves closer study.”) Given the frequency with which legal scholars treat as “new” arguments or observations that were old before they were born but lie outside Westlaw’s reach, branding often involves neither new wine nor new bottles, but old wine in old bottles with a new label slapped on. It is bad enough if these efforts are cynical, worse if they are not, and perhaps worse still when they are a bit of both. We might call this the Late Capitalism-ization of legal scholarship.
With that cheerful preface, it is a pleasure to see a new label that actually performs a useful service, spotlighting something we might otherwise neglect. It is doubly pleasing because the article neither celebrates nor condemns what it labels. It walks us through the phenomenon with a proper sense of its nuances and its costs and benefits. Written by David Pozen and Adam Samaha, Anti-Modalities exemplifies the difference between a meaningful scholarly label and a mere marketing gambit.
Constitutional lawyers are familiar with the modalities of constitutional argument: the “forms of argument that are considered legitimate within the legal profession for establishing propositions of constitutional law.” In Philip Bobbitt’s words, they constitute the “legal grammar” of constitutional law. Constitutional law teachers inevitably teach these modalities, trying to instill in their students a sense of the kinds of constitutional arguments that will be legible to judges and other lawyers.
From this starting point, Pozen and Samaha ask: What sorts of recurring modes of constitutional argumentation are illegible and unacceptable? In particular—to distinguish them from altogether irrelevant arguments (“What does the arrangement of sculpture in the Uffizi tell us about the Seventh Amendment?”)—what arguments are excluded even though they “seem relevant to the controversies that constitutional law is asked to resolve?” Are they actually excluded, or do they find their way in to modal argument anyway? In what form? And what are the costs and benefits of the “gap” between what is permitted and what is excluded? As they note, anti-modal constitutional law arguments are not bad in themselves. And they are common, both in general conversation and in lay public discourse on constitutional law itself. The result is that “the anti-modalities,” for good and ill, “shut out of constitutional law virtually all the arguments that drive most citizens’ views on most matters of public concern.”
Like the Council of Elrond, Pozen and Samaha counter the six canonical constitutional modalities identified by Bobbitt with six constitutional anti-modalities, ordered by “how frequently decisionmakers are accused of employing them.” They are: 1) “Policy arguments,” which are common in debates over “public policy and political morality” but “seen as out of bounds in debates over the Constitution’s meaning.” 2) “Fundamentalist arguments,” which “draw directly on deep philosophical premises or comprehensive normative commitments.” 3) “Partisan arguments,” which “express a preference for a particular political or social group” for reasons not dictated by the Constitution itself. 4) “Emotional arguments,” “indisputably pervasive” in life but rendered suspect in law by the norm of reasoned elaboration. 5) “Popularity arguments,” which appeal directly to “the perceived popularity” or unpopularity of a proposition in arguing for a particular constitutional meaning. 6) “Logrolling arguments,” which consist of various trading or compromising techniques.
A typology of common anti-modalities is valuable in itself. But Pozen and Samaha go further, noting that, like most taboos, the anti-modalities inevitably find their way back into acceptable forms of constitutional argument in “diluted and disguised incarnations.” Thus, a straight fundamentalist appeal is sufficiently anti-modal to have been easily parodied by John Hart Ely (“We like Rawls, you like Nozick. We win, 6-3.”). But one might “hitch [such] an arguably anti-modal argument to a modality” by insisting that the Constitution “calls for a presentist inquiry into moral norms.” Typically, moreover, the return of the repressed argument calls for it to be domesticated or “modified.” Rather than bring to bear all the tools of sophisticated policy analysis, for instance, courts will employ “second-order” terms like “manageability,” or make broad-brush claims about consequences, ungrounded in serious data or analysis. In short, they assert, “American constitutional practice has developed an impressive array of norms to wall off the use of anti-modal reasoning”—and “a subtle set of gateways for letting in certain stripped-down versions of that reasoning in certain cases.”
One could easily imagine an article on this subject insisting that anti-modalities should be excluded, or conversely that such borders are artificial and must be torn down. (One need not “imagine” a scholarly article that simply accuses an adversary of anti-modal argument, or one that engages in anti-modal argument despite being ostensibly in the game. Both are common.) Pozen and Samaha avoid both poles.
They argue that the wall between modal and anti-modal argument, even if porous, has value. Blocking anti-modalities from constitutional law argument stops it “from devolving into normative argument, full stop.” Law—even constitutional law—is a profession, a practice, and an institution. Like all such institutions, it needs to be bounded and disciplined if the enterprise is to be conducted with coherence and integrity.
On the other hand, the wall “move[s] constitutional decisionmaking some distance from what people usually care about.” It leaves constitutional law “without the resources to reckon, seriously and explicitly, with some of the most significant dimensions of social problems.” Its participants, “unable to address such matters directly, . . . endlessly accuse each other of manipulation and misdirection.” And the channeling of the professional discourse of American constitutional law leaves its practitioners caught between in an interesting way. On one side, the insistence on modal reasoning encourages lawyers, who are accultured to view serious policy tools as anti-modal and are not trained to use them, to treat nonlegal expertise as “sociological gobbledygook.” On the other, the gulf between modal constitutional argument and common discourse leads to its “alienation and mystification for ordinary Americans,” and to constitutional lawyers’ alienation from ordinary Americans.
That is a particular problem for constitutional law, with its customary mix of high and low politics and policy. The “between” in which constitutional lawyers reside is almost a caricature of a certain kind of cognitive and social elite. Neither part of the general populace nor possessed of reliable technical knowledge, they resemble a wealthy alchemists’ guild that has somehow managed to hang on into the atomic age. “Put crudely,” they write, “constitutional law cannot survive as a legal discipline without the anti-modalities, and it cannot thrive as a political practice with them.”
Pozen and Samaha argue that despite its advantages, the downsides of “the status quo regarding the anti-modalities” counsel reform. They offer two speculative options. One is to “narrow the gap” between modal and anti-modal discourse about the Constitution, “connect[ing] the forms of constitutional argument to whatever people honestly and deeply care about with regard to matters of public concern.” The other—their own preference—is to “accept the resonance gap in principle, and strive to reduce its importance in practical terms,” by “reducing the footprint of both judicial review and supreme constitutional law.” Both proposals are thought-provoking, if secondary to the goal of “clarify[ing] the core tradeoffs” involved in the system of modal and anti-modal argument in constitutional law.
I worry about two possibilities, neither of which is fully discussed in this already full article. One has to do with the imperial reach of legalistic discourse. The “gap” that Pozen and Samaha describe arises from a view of constitutional law in which modal argument “shut[s] out . . . virtually all the arguments that drive most citizens’ views on most matters of public concern.” Insofar as Americans tend to see every political issue as a legal issue and every legal issue as a constitutional one, one might fear that “most citizens” themselves, in aping lawyers’ argumentative forms, will themselves take on the habits of modal discourse, or at least a bastardized version of it—including its exclusion of anti-modal forms of argument. On the Internet no one knows you’re not a lawyer, and a great many public arguments are conducted in a legalized form that neither mitigates sharp partisan feeling nor speaks its concerns openly. We may all end up alienated: severed from the capacity to engage in open talk on matters of public concern in a way that is free of the argumentative restrictions that make sense only in a narrow precinct of our society and its institutions.
Institutions themselves are the other concern, in two ways. First, as Pozen and Samaha write, “professional argumentation” unavoidably requires “some method.” That professionalism or disciplinarity undergirds the maintenance of included and (more or less) excluded modes of argument. An engineer knows when she is talking about the structural integrity of a bridge and how to talk about it. She and her colleagues can easily distinguish between that discussion and an argument about critical urban theory (a phrase I made up but which, of course, exists). Constitutional law may be a profession or discipline. But it is less clearly defined and bounded than many others, making boundary maintenance more difficult.
That difficulty will increase as law, like other institutions, experiences a contemporary weakening of attachment to or trust of institutions and disciplinarity as such. To the extent that what we are seeing today, in law and other disciplines, is not simply an effort to change the boundary or bring some anti-modalities into the modal space, but a rejection of boundaries as such and of the authority of those who collectively regulate modal space, one may worry that Pozen and Samaha’s typological effort will be like trying to draw a map in the sand at high tide. Pozen and Samaha’s project is descriptive and nuanced. But it may be that developments outside their endeavor—namely, a loss of faith in technē and in argument and argumentative boundaries—are pressing in ever closer on the whole enterprise.
A second point is closely related. Pozen and Samaha worry that “the anti-modalities both reflect and perpetuate the intellectual insularity of mainstream legal culture,” that their subtle entry into constitutional decisionmaking “only make[s] ‘the constitutional-law game’ more complex and impenetrable to nonspecialists,” and that this is one source of “legal estrangement” between lawyers and “nonelites.” Insularity born of the exclusion of the anti-modalities is indeed one sort of problem. But code-switching is another.
All sorts of platforms, and especially social media, allow and encourage constitutional lawyers to make anti-modal arguments on public questions of a constitutional nature, or—perhaps worse—to engage in a mix of modal and anti-modal arguments. They do not disclaim any professional status in these forums; most of them trumpet it (and would be ignored if they didn’t). They do so without any necessary skill in the anti-modalities, and without making clear what role they are playing and whether particular arguments are modal or anti-modal. One might think that anti-modal engagement on public issues in public spaces would reduce the “resonance gap” that worries Pozen and Samaha. But the mixture of modal and anti-modal argument by constitutional lawyers in these spaces may, as they suggest, add to the impenetrability of constitutional law. The very privilege of code-switching at will, while still loudly asserting one’s status as a professional player of the game, may exacerbate rather than narrow legal estrangement between elites and nonelites. And the lack of clarity about what role these elites are playing, personally or argumentatively, may sap institutional trust in “mainstream legal culture” and thus widen the gap further.
This observation is not meant to insist on the value of insularity or the need for stricter boundary maintenance between modal and anti-modal argument. And it may be consistent with the authors’ proposal to narrow constitutional law’s domain altogether. But it also suggests that, whatever the list of modal and anti-modal argument contains and whatever rules of boundary maintenance apply, the whole enterprise depends on some degree of institutional as well as public health. It is not clear we can count on either. Pozen and Samaha worry that the anti-modalities prevent “constitutional law” from reckoning properly with significant social problems. But we might also worry about a “constitutional law,” understood as part of an institution or discipline, whose practitioners address those problems more directly, but in the process lose any capacity to maintain themselves as a discipline, and squander whatever remaining trust people have in the institution.
The world of argument set out in Pozen and Samaha’s descriptive and analytic project may thus be beset on all sides. But it is a worthy project in itself, containing a fine mix of example, description, and speculation, positive and negative. To return to the beginning, it is an exemplar of the difference between scholarly labels that enhance our understanding of the world of social and discursive practices we inhabit—and mere branding, which simply sells us a product we already own.
Many Jotwell readers choose to subscribe to Jotwell either by RSS or by email.
For a long time Jotwell has run two parallel sets of email mailing lists, one of which serves only long-time subscribers. The provider of that legacy service is closing its email portal next week, so we are going to merge the lists. We hope and intend that this will be a seamless process, but if you find you are not receiving the Jotwell email updates you expect from the Constitutional Law section, then you may need to resubscribe via the subscribe to Jotwell portal. This change to email delivery should not affect subscribers to the RSS feed.
The links at the subscription portal already point to the new email delivery system. It is open to all readers whether or not they previously subscribed for email delivery. From there you can choose to subscribe to all Jotwell content, or only the sections that most interest you.
Jamelia Morgan, Disability’s Fourth Amendment
, 122 Colum. L. Rev.
__ (forthcoming, 2022), available at SSRN
At the end of 2018, USA Today published a list of “normal” activities that had recently prompted calls to the police when Black people engaged in them. The list, which highlighted a series of viral incidents in which white people had wrongly called the police on Black people engaging in everyday activities, included incidents like police calls over Black people barbecuing at a park, sitting in a Starbucks, and mowing lawns. Many of these incidents rightly generated public outrage—and in some instances material consequences—for those who had wrongly sought police intervention. By presenting a list of the “normal, everyday” activities which resulted in police calls when Black people engaged in them, the story highlighted the role that racism plays in what public conduct is perceived as criminal.
Jamelia Morgan’s Disability’s Fourth Amendment invites us to go further and interrogate the ways in which “normal” itself—and associated understandings of what is “reasonable” policing—produce presumptions of criminality when mapped onto disabled “bodyminds” (a term that Morgan borrows from disability studies scholar Sami Schalk). Morgan argues that by failing to account adequately for disability, Fourth Amendment doctrine under-protects people with disabilities, subjecting them to a greater likelihood of stops, searches, seizures, and excessive force. Most troublingly, Prof. Morgan compellingly makes the case that many of the very indicia used to justify police action (including the use of force) under the Fourth Amendment overlap with physical, mental, and behavioral manifestations of disability.
Consider the example of psychiatric disabilities, which is an example that Morgan centers in her piece. A person with untreated (or even treated) schizophrenia may engage in behaviors that are non-normative, like talking to themselves and gesturing as they carry on a conversation with the voices in their head. These actions are not criminal, but when carried out in public spaces, especially wealthier or whiter public spaces, they may arouse discomfort and suspicion, leading to police contact. Upon approach by the police, such individuals are likely to respond non-normatively, including being unable or unwilling to perform the subdued compliance expected in response to police demands. But these of course are exactly the circumstances that create what Morgan, borrowing a phrase from Devon Carbado, refers to as “pathways to police violence.”
Nor is this phenomenon limited to those with psychiatric disabilities. As Morgan highlights, physical, intellectual, and developmental disabilities have also prompted police contact, suspicion, and violence across a host of circumstances. For example, consider the seminal case with which Morgan begins her piece, Graham v. Connor. Graham involved a diabetic with low blood sugar, whose behavior was perceived as suspicious and indicative of drunkenness and who was subjected to a police stop—and, ultimately, police brutality. Other examples that Morgan provides in her piece include deaf or intellectually disabled people unable to understand police commands, people with autism who act or respond in non-normative ways, and those with mobility disabilities who are subjected to excessive force. In each of these instances, disability—especially when combined with race and class bias—can prompt or exacerbate a police encounter, sometimes leading to violence and even death.
As Morgan points out, people with disabilities represent a large fraction of people killed by the police, with some estimates placing the proportion as high as 50%. As Morgan urges, these numbers ought to, but have not, prompted deeper consideration of how Fourth Amendment doctrine ought to attend to disability. Rather disability is simultaneously “hypervisible and invisible” in many of our Fourth Amendment cases—providing the setting for the factual context, but little more. Despite the very large role that disability plays in prompting and mediating police encounters, searches, seizures, and violence, there is relatively little in Fourth Amendment doctrine that seeks to ensure that the Fourth Amendment equally protects those with non-normative bodyminds. Indeed, numerous features of Fourth Amendment law, while facially neutral, almost certainly under-protect those with physical and mental disabilities. (Of course, as Morgan observes, this phenomenon is not limited to disability, but also extends to factors such as race and class, and especially the contexts in which those identities intersect.)
For example, what justifies a Terry stop based on “reasonable suspicion” is centered definitionally on what is “suspicious,” which often includes non-normative behavior or appearance which may arise from disability. Thus, “certain expressions of disability—such as flapping hands, low-affect facial expressions, pacing, lack of eye contact, and unsteadiness that may be exhibited by some autistic individuals,” could all be constructed as a basis for “reasonable suspicion.” Similarly, speech disabilities, hearing disabilities, and the responses of autistic and psychiatrically disabled individuals can also lead to a perception of “suspicious” behavior or “suspicious” responses to initial police intervention. Currently, however, Fourth Amendment doctrine not only does not prohibit such “disability profiling,” but arguably encourages it by focusing the inquiry on “unusual” or “suspicious” behaviors.
As Morgan demonstrates, disability continues to be under-protected by Fourth Amendment doctrine not just at the initial stage of police contact, but at each successive stage of police engagement. Police seizures—in which the question of whether a seizure has occurred turns on whether a “reasonable person would have believed he was not free to leave”—employ an objective standard that may obscure the profoundly different experience of a police encounter that a wheelchair user or a person with an intellectual disability may have. In consent to search cases, courts at times consider disability, but almost never find the standards for non-voluntary consent to be met—with some appearing to require intentional exploitation of disability by the police for the standard to be met. In each of these instances, the real impact that disability is likely to have on police interactions is often simply ignored in the Fourth Amendment analysis.
Perhaps most troublingly, as Morgan lays out, Fourth Amendment excessive force analyses, while often featuring disabled plaintiffs as their backdrop, have not fully accounted for the role that disability can play in generating and justifying such uses of force. As Morgan notes, many courts do “recognize and weigh disability as a factor in determining whether a particular use of force was reasonable.” But the mechanisms by which they do so “var[y] widely” and do not incorporate a full accounting of the ways that disability may be used to justify force and its escalation. Among other things, as Morgan details, under existing doctrine, disability-linked affect, appearance, and behavior are often used to “construct the threat” faced by the police in the first instance. Disability-linked non-normative responses to police commands and control are then often used to justify force escalation. Disability can thus both provide the basis for a “reasonable” perception of the need for the use of force and a justification for escalating that force, Combined with qualified immunity doctrine, this leads to a legal doctrine that is strongly tilted toward absolving police of responsibility for violent and even deadly responses to disability.
What could we do differently? Morgan offers a variety of suggestions for doctrinal reform, while recognizing that doctrinal reform cannot fully solve the problem of policing and disability. Most centrally, Morgan suggests that Fourth Amendment doctrine ought to explicitly grapple with disability, and disallow sequalae of disability which are not immediately dangerous as a basis for initiating or escalating police contact or use of force, while requiring disability to be considered in deciding whether searches and stops are consensual. As Morgan recognizes, it will not always be easy to disaggregate which sequalae of disability do or do not produce an immediate threat. But as she points out, this highlights what is perhaps one of the most harmful aspects of Fourth Amendment doctrine as currently constituted: its deployment of a “split second” conception of police conduct, a conception which fails to grapple with the broader structures of policing (including training, tactical, and structural factors). If there are better, non-violent, ways for police to recognize and address non-normative behavior or responses by people with disabilities, why should our constitution permit violence as the first-line “reasonable” police response?
Ultimately, the power of Morgan’s piece is to remind us that people with disabilities deserve what disabled legal scholar Jacobus tenBroek referred to as “the right to live in the world.” They do not possess such a right if their manifestations of disability can at any time become the basis for police contact, violence, and even death. Her piece imagines a Fourth Amendment doctrine that at least grapples with this important right, even if it cannot fully actualize it.
[The author of this Jot identifies as a person with a psychiatric disability, and has close family members who have experienced regular police contact as a result of their psychiatric disabilities].
Time ticks away. You have one shot downfield. If you don’t score a touchdown, the game’s over. Which play should you call? A Hail Mary pass into the end zone, reducing the game’s outcome to a lone, long-shot attempt? Or perhaps a trick play—a conceit from the back of the playbook with a colorful name like flea-flicker, fumblerooski, or Statue of Liberty—requiring you to avoid a series of tackles in an unlikely bid to run the ball to victory? In other words, would you rather face nearly impossible odds once or even odds a half dozen times?
Winning review of a state criminal conviction in federal court requires a higher-stakes and less fair version of the same choice among long shots. First, a criminal defendant can appeal directly to the highest civil authority by petitioning the U.S. Supreme Court for certiorari. But these prayers for relief, like Hail Marys, most often go unanswered. Second, a defendant can petition a federal district court for a writ of habeas corpus. But like the flea-flicker or the hook-and-ladder, federal habeas involves avoiding many procedural obstacles. Finally, a defendant could choose a hybrid: file a habeas-like petition for postconviction review in state court, and hope that the Supreme Court will grant certiorari after state courts deny relief. At first blush, this hybrid approach seems to combine the challenges faced by its alternatives, because to succeed it must hurdle many procedural obstacles and then complete a desperate, Hail Mary pass. Yet in Direct Collateral Review, a dazzling tour through both postconviction doctrinal weeds and high habeas theory, Payvand Ahdout shows that this hybrid approach has promise for individual criminal defendants and the development of constitutional doctrine. There are even substantial benefits for judicial federalism, because the Supreme Court can supervise the application of federal rights in state courts without undermining the presumption of parity between federal and state trial courts.
Ambitious papers traverse pitched terrain; Ahdout’s is no exception. In arguing that direct collateral review is a viable vehicle on the rise, this paper takes on a formidable task. The conventional wisdom is that the Supreme Court reviews cases in this posture only infrequently. Justice Stevens once noted that the Court “rarely grants review at this stage … even when the application … is supported by arguably meritorious constitutional claims,” a point later endorsed by the full Court. This presumption reflects the Court’s traditional view that the intermediate posture of direct collateral review makes such cases poor vehicles for resolving contested questions of federal law.
The Court protests too much, Ahdout thinks. While it was once true that the Supreme Court disfavored direct collateral review—from 1986 until 2003, the Court took only nine such cases—that is changing. 2015 marked the break: the Court took five cases on direct collateral review that term, more than it had taken in the preceding six terms combined. The trend continued with another four cases in 2016, and three each in 2018 and 2019. So much for the presumption that the Court “rarely grants review” on this posture.
Ahdout traces this shift in the Supreme Court’s certiorari practice to developments in the two coordinate branches. Start with the legislature. Congress imposed a host of new procedural hurdles on habeas petitioners in 1996’s AEDPA. Under that law, habeas is limited to cases in which a state court has unreasonably applied clearly established federal law “as determined by the Supreme Court.” This bar has two effects, Ahdout argues. First, it robs lower federal courts of the chance to develop constitutional doctrine in habeas cases, since lower court precedent is not relevant for purposes of AEDPA. Second, and more subtly, it puts increased pressure on the Supreme Court to determine the content of clearly established federal law—because no one else may do so. In sum, federal habeas is a worse vehicle than it used to be.
The Department of Justice has played a role as well. Most cases the Supreme Court hears come from federal courts. By choosing not to contest broad applications of Supreme Court precedent in lower federal courts, DOJ and the Solicitor General can perversely insulate the Supreme Court from deciding important questions about federal rights—even as those same questions arise in state criminal proceedings. Because state criminal cases are both more numerous and comparatively poorly funded, the Supreme Court must get creative if it wants to keep setting the contours of federal rights.
Direct appeals have their own problems. Some kinds of claims—like the retroactivity of newly articulated rights under Teague v. Lane or the continuing competency of a defendant sentenced to death—can only arise on collateral review. Other critical issues, like ineffective assistance of counsel or the government’s failure to produce evidence as required by Brady v. Maryland, are more likely to arise on collateral rather than direct review, as Ahdout establishes. These developments have rendered both federal habeas review and direct appeals increasingly problematic vehicles for the Supreme Court to determine the scope of federal rights. So direct collateral review is on the rise.
Despite the doctrinal and institutional changes that have made direct collateral review a better posture for Supreme Court review, its downsides as a vehicle remain. Ahdout reviews this suite of problems—including such fundamental questions as what the standard of review should be and how generously to read summary orders issued by state courts—as a preview of issues to come. These problems, which the Court and Congress have struggled over for decades in the context of federal habeas, reflect the tensions of our system of judicial federalism.
Yet one key difference makes direct collateral review promising from the vantage point of judicial federalism. Like federal habeas, direct collateral review involves a federal court supervising the application of federal law in a state criminal proceeding. But with direct collateral review, it is the U.S. Supreme Court—not lower federal courts, which are theoretically coequal with their state counterparts—that does the supervising. There is thus no tension between deferring to state courts and ensuring the correct application of federal law.
This rich paper teaches lessons both internal and external to the criminal legal system. For those working inside the system, Ahdout offers practical advice. To improve the quality of postconviction adjudication, ensure that state habeas analogs include high-quality counsel who will preserve issues for an eventual petition for certiorari. For lawyers and defendants facing hard choices between alternative postconviction procedural paths, don’t overlook direct collateral review as a moment for meaningful federal review, but also beware of the procedural uncertainties that await. Like a football team mounting an unlikely comeback, litigants will be glad for that slim yet real hope, even as they rightly fight for much more.
From an external perspective, Ahdout describes a changing “ecosystem of collateral review.” In this ecosystem, the Supreme Court acts against constraints imposed by Congress and litigants (especially DOJ) to protect its review of state convictions. Direct collateral review offers the Supreme Court a solution to that problem because it is free of the statutory and institutional constraints that limit its alternatives. We should be glad, then, that direct collateral review is moving up in the playbook—and on the Supreme Court’s docket.
The COVID crisis comes at a time of transition and peril for low wage workers, exposing and exacerbating their vulnerability under United States labor and employment law. The crisis also provides an opportunity for reimagining the state’s responsibility towards low wage workers. Even before the pandemic, in today’s gig economy an increasing number of workers lack any certainty about, and control over, their working lives. In Essentializing Labor Before, During, and After the Coronavirus Epidemic, Deepa Das Acevedo uses the COVID crisis to illustrate how the baseline at-will employment rules contribute to the precarity of the lives of low wage workers. Das Acevedo advocates rejecting the at-will doctrine to address that precarity.
In Essentializing Labor, Das Acevedo shows how the debate over who is an essential worker at the height of the COVID crisis revealed the failure of US labor law to protect the interests of low wage workers. Government measures to protect against COVID made it necessary to determine who is an “essential” worker. “Essential” workers such as medical workers, first responders, grocery store employees and food production workers were exempt from stay-at-home restrictions and could therefore keep their jobs even during the worst times of the COVID crisis.
However, being labeled an essential worker has been a double-edged sword – essential workers not only could go to work; they were often required to go to work, without sufficient measures to protect them from the disease, or risk losing their jobs. As a result, essential workers have been disproportionately likely to be infected with COVID and to die of the disease.
Arguably, essential workers (especially healthcare workers) have an obligation to society to continue to work in jobs that are essential to the health, safety, and welfare of the people. If so, however, our society has a reciprocal obligation to protect the health and safety of those workers. Yet the United States Supreme Court has repeatedly rejected claims that the government is constitutionally obliged to protect people from external harm. Thus, workers are dependent on positive law to protect them from danger in the workplace, including the danger imposed by a pandemic. Yet, as Das Acevedo explains, positive law actually increases their vulnerability.
Although the term “essential worker” has only recently become widely used, Das Acevedo explains that the term “essential labor” has long been important to US labor and employment law. During the pandemic, a worker is essential if her labor is essential to society. Before the pandemic, the determination of whether a worker was essential depended on the perspective of the employer. But neither determination is made from the perspective of the worker herself, even though the job is essential to the workers’ well-being and survival.
Das Acevedo argues that, from the workers’ perspective, all jobs are essential, not only because work is necessary for economic survival, but also because work is central to human flourishing and to one’s identity. Moreover, in the United States a job is more essential than in other western democracies. Many benefits and legal protections in this country are linked to employee status, from health insurance to anti-discrimination laws. In the emerging gig economy, workers do not enjoy even the minimal benefits that adhere to the employee status. This distinguishes the United States from other western democracies, where the state provides health care and pensions, and where legal protections apply to all workers regardless of their technical status, providing a safety net for all workers, even if they are required to do essential jobs.
Notwithstanding the fact that being an employee is even more essential to workers in our country than in other countries, U.S workers have far less job security than workers in other western democracies. Under the employee-at-will system which underlies U.S. labor and employment law, workers can be fired at any time for just about any reason. Das Acevedo argues that doing away with the at-will doctrine is an essential step towards improving the lives of low wage workers. Replacing employee at will with just cause termination rules would give workers a baseline stability and certainty that they need for their essential jobs.
Recently, scholars have begun to explore the 13th Amendment’s protection against involuntary servitude as a source of positive rights for low wage workers. Other scholars have argued that the Court should refine its 14th Amendment state action doctrine. In this article, and in all of her work on low wage gig economy workers, Das Acevedo lays the groundwork for theorizing their rights, all for all of those interested in creating a responsive state to protect vulnerable workers.
David L. Sloss, Information Warfare and Democratic Decay
, in Tyrants on Twitter: Protecting Democracies from Chinese and Russian Information Warfare
(forthcoming 2021), available on SSRN
During the rise of big tech like Facebook, Twitter, and YouTube, there has been an increase in autocratic governments. Political leaders in Hungary and Poland have used democratic constitutions to curb democracy. They have ignored the European Union’s complaints about their actions. But perhaps the most dangerous development is the information warfare carried out by Russia, China, Iran, and others with the intention of interfering with democratic elections. Some experts argue that Russia’s “organized social media manipulation” was the reason for Trump’s victory over Clinton. These countries used U.S. First Amendment values against the U.S.
Professor David Sloss is authoring a book detailing how “Chinese and Russian cybertroops” accomplish their goals, as well as the weak efforts by the U.S. social media companies to respond. These platforms have profit incentives that conflict with the need to block information warfare or disinformation campaigns. This review briefly examines the newly released first chapter of the book. What makes the book significant is that Sloss proposes a multi-national alliance and registration identification system to deter this cyber-espionage and perhaps slow the corresponding democratic erosion. The solution, however, raises serious First Amendment issues even though it may promote democracy.
The initial chapter contains charts on recent democratic deterioration, including in the U.S. Meanwhile nations like China are economically booming and increasing in power. Though Sloss declares himself a liberal internationalist, he explains that foreign agents have no part in U.S. self-government, and that they have fewer First Amendment rights. He also produces some nice turns of phrase. Whereas Clausewitz said war is politics by other means, Sloss writes that information warfare is war by political means.
Sloss therefore advocates an Alliance for Democracy—a transnational system of democratic states guaranteeing strong free speech for its members. But outsiders would have fewer speech rights. For example, their election-related messages would contain disclaimer warnings. Moreover, all social media users would have to register and identify themselves, declare their nationalities, and consent to verification. Sloss writes that this avoids content discrimination, replacing it with identity information concerning dangerous speakers.
He then addresses objections, especially privacy concerns. But he points out that the influence of fake accounts is huge anyway. Sloss is also aware that the disclaimers raise concerns. And he sees the large administrative costs. But he argues that the benefits to democracy far outweigh the horrifying costs, and that the First Amendment is not violated, though this is debatable. Certainly, Sloss should address this question in detail later in the book.
One criticism is that he does not show in these pages that social media causes less democracy. For example, social media fueled the “Arab Spring’s” democratic moments. Moreover, the 2020 U.S. Presidential election was quite safe. Yet the Sloss alliance and registration system could provide a fascinating opportunity to reduce or block the social media interference of autocracies in democratic elections. The proposal deserves examination, if the First Amendment problems can be overcome. Thus, his book could be very important.
Toni Massaro & Helen Norton, Free Speech and Democracy: A Primer for 21st Century Reformers
(Dec. 15, 2020), available on SSRN
There has been a long-standing belief that more speech produces more freedom, and that a governmental regime is democratic to the extent that governmental control of speech is minimized. Recent developments have called these beliefs into question, however. Justice Brandeis may have said that sunlight is the best of disinfectants, but Donald Trump has given disinfectants a bad name, and cast doubt as well on their metaphorical referents through his unceasing falsehoods and his flirtation with or embrace of Russian internet disinformation. He is out of office, but his shenanigans are in fact examples of much more extensive dilemma that remains with us today. In a recent article I like lots, Toni Massaro and Helen Norton confront this dilemma and offer possible responses.
The problem, as the authors note, is that speech has been weaponized by a toxic mixture of new technology and extreme partisanship. The internet in particular, as a source of information that people increasingly rely upon, is less a marketplace of ideas and more a means of inducing people to buy into defective reports and harmful attitudes, by overwhelming them with input or misleading them with subliminal messages. Instead of addressing this problem, a conservative Supreme Court has weaponized free speech doctrine by treating government efforts to regulate defective products and harmful substances as an intrusion on the free speech rights of those who sell these products and substances in the actual marketplace. By thus overlooking serious threats to speech and instituting counter-productive protections, the Court has created a serious mismatch between real dangers and existing doctrine.
Professors Massaro and Norton respond to this situation by recommending what they call “tweaks” rather than “topples” – delimited doctrinal adjustments as opposed to comprehensive revisions. Their choice is based on the incremental character of judicial reasoning and the widespread reverence for current free speech protections. In fact, I think the authors undersell their recommendations. These can certainly be implemented incrementally, but they are based on important conceptual considerations that point toward new understandings of the way speech functions in the context of our modern world.
One recommendation is to shift our speech-oriented solicitude from the rights of speakers to the rights of listeners. As Robert Post has pointed out, First Amendment doctrine depends on relationships; without listeners, speech is only noise. If one reads too much John Stuart Mill, the image of speech that one will have in mind is discussion or debate among relatively equal parties. In the modern world, however, there is an asymmetry between the two. In part, this is because speech – that is, the ability to reach listeners – costs money. In part, it is because the speech that reaches listeners makes money, either directly by influencing ordinary people in their capacity as consumers or indirectly by influencing them in their capacity as voters. The result is that the wealthy speak and ordinary people listen. Professors Massaro and Norton propose that free speech doctrine should be tweaked to provide more protection to listeners. Instead of being so solicitous of professionals’ right to speak – or not to speak on religious grounds – the doctrine should protect those who consult these professionals and want to obtain necessary, truthful information. Instead of freeing the expenditure of money from campaign finance regulation, the doctrine should recognize that the essential freedom is the ability of voters to hear each candidate’s position and reach informed judgments.
Two other recommendations that Professors Massaro and Norton advance are to rethink the scope of state action to which the Free Speech Clause applies, and to rethink the concept of neutrality that defines a good deal of its substance. Here again, the operation of the internet raises crucial questions. While the authors acknowledge the value of the autonomy that the state action doctrine provides, they question its dichotomous rigidity. Internet providers may be private for certain purposes, but their ubiquity and influence suggest that inclusiveness requirements might be imposed on them by courts. Similarly, Professors Massaro and Norton acknowledge the force of neutrality arguments, but recommend that content-sensitive regulation may be constitutionally permissible if it is designed to avoid misleading communications such as robot-generated messages that appear to come from individuals.
The example of racist speech at private universities provides a further illustration of the authors’ argument. This may be one context where the public-private dichotomy on which the state action doctrine is based breaks down, given universities’ essential role in our increasingly knowledge-based economy, the proportion of their research that is supported by government grants, and the extent to which higher education is provided by government in most Western nations. Their private status could be challenged through exceptions to state action doctrine such as entanglement or public function, but such doctrinal tweaks might well be grounded on a more basic re-evaluation of the doctrine as it applies in particular contexts such as racist speech. Regulation of racist speech is content-based, and thus not neutral, but the “Court’s sometimes platitudinous claims to neutrality are descriptively inaccurate” for many of its decisions. In this case, doctrinal tweaks allowing content-based regulation might be supported by the more general recognition that universities, by virtue of constitutional decisions and federal legislation, are communities that explicitly welcome students of different races, ethnicities and religions. In this sense, they embody particular commitments, and the speech that they allow might be regulated on the basis of those non-neutral commitments.
All of this, of course, is controversial. Professors Massaro and Norton certainly do not deny the importance of free speech or the dangers of allowing government to regulate it. They remind us, however, that legal doctrine, no matter how well-established and revered, does not justify itself but rather must be justified by the purpose that it serves. New circumstances can sunder a previously secure connection between a given doctrine and its purpose. Modern modes of communication and increasing political polarization constitute such circumstances. They demand that we rethink free speech doctrine to ensure that it continues to serve its underlying purposes.
The moment is at hand. No longer self-consciously experimental, computational analysis now comes to constitutional law in an ambitious effort pursued by David Pozen, prominent in the field at Columbia; his Van Halen-like colleague Eric Talley, known especially perhaps for his law and economics theorizing and his corporate and contract law investigations – and Julian Nyarko, newly arrived at Stanford as a practicing computationalist interested first of all in contract law. Their project takes up the question of polarization and its pertinence constitutionally, an issue that has become more prominent in the past few years.
The effort at one level is straightforward. It turns out that all remarks made by members of Congress, on both the House and Senate side, dating from 1873 to 2016, now exist in a collected, computer analyzable form. What might we learn if we read all these speeches? We can’t, of course – too much to know, too much information to acquire and think through, even if we read quickly rather than carefully. Machines read too, assimilating many more documents much faster. But they read their way – sorting words, counting uses, noticing conjoint and disjoint patternings, and the like. We need to know what we know, therefore, when we read machine-reading results. Pozen, Talley, and Nyarko show us how they assembled their mechanism and the decisions they had to make in order to ready their computer for work. These decisions become a sort of pedigree.
Word frequency lists as such are not the main focus. Instead, the idea is first to check legislator vocabularies against constitutional dictionaries. These last are collections of words that count as “constitutional” terms. The word “constitution” itself and its immediate modifications like “unconstitutional” and “nonconstitutional” generate a first dictionary. Words included in the U.S. Constitution fill up a second collection. Words seemingly part of ordinary discussions of immediately constitutional terms become a third grouping. The computer is instructed to search out, accumulate, and report incidences of these constitutional usages in congressional talk.
Because the speakers’ party affiliations are known, the computer can determine within given periods whether members of one party or the other are more prone to constitutional usages, and whether given usages vary or not with party membership. Pozen, Talley, and Nyarko put together training lists of constitutional usages in recent periods in order to suggest versions of “right” and “left” groupings, tuning the lists to match very well with Republican and Democratic affiliations of speakers. These groupings are made available to the computer to predict the party affiliations of congressional members within the larger sets. This in turn allows the computer to assess degrees of orthodoxy among party members.
All this effort (and more – including comparisons with Wall Street Journal and New York Times editorial usages), all parts carefully designed, executed, and reported, allow the study to state findings concerning constitutional polarization. Especially provocatively, it appears, both Republicans and Democrats made frequent use of constitutional terms in the most recent period (not so in other ranges). But the terms differed considerably depending on party affiliation. This may be evidence, the authors suggest, of strong constitutional polarization. It is as though two ships “Peerless” pass in the night (as Professors Talley and Nyarko might have put it).
This is too terse. It is clear nonetheless that the work here is very good indeed. What should we make of it? Should we want to read exercises of this sort? Assemble them ourselves? “Might as well jump?” The great value, I think, is old-fashioned. Observing closely what this effort involves, we are driven quickly from initial skepticisms to thinking about helpful differentiations and elaborations.
First, we notice that constitutional usage is reduced to piles of words. Sorting words is good work for computers. But we “not-computers” tend to believe we proceed otherwise. Of course, “we” may not be a homogeneous set. Are members of Congress engaged in the same efforts as judges or lawyers or academics? Consider: Sometimes constitutional terms — words, sentences, passage, entire documents – are considered closely, as elements in efforts to think intensely and independently about seemingly difficult and important matters. On other occasions, constitutional terms are treated as “doctrine” – standard formulas framed as rules and exceptions or levels of scrutiny or test steps – in order maybe to achieve institutional uniformity or integrity. In other instances, terms are pretty much emoji. They communicate attitude or intensity, mark normative postures, stand up or stand down (we might say).
All three modes are sometimes apt. But in different settings each might be more or less salient. We might imagine members of Congress who think hard and originally about basic constitutional questions. Regrettably, John C. Calhoun comes to mind. Bruce Ackerman suggested that the remarks of Hubert Humphrey and Everett Dirksen in the course of congressional discussion of the Civil Rights Act of 1964 should rank high. Often, it is easy to suppose, legislators proceed within established doctrinal fences. Or—maybe even more frequently—they use constitutional references and resonances to signal stances, to evoke ideological allegiances and intensities – to cast “emojis” as though fly fishing. This last use is formally a kind of mirroring or borrowing, or maybe translation, of attitudes or commitments or aversions already in play in society at large. These captures may be politically sharply relevant – and if reused often enough may become constitutional content by association. Effective trademarking maybe, purposefully derivative, these constitutional cartoons are in themselves neither analyses nor close “doctrinal” maps. But none of these three modes are, in any general way, inappropriate.
Second, we also readily recognize that polarization might be pictured from a dramatically different angle. It is not surprising if political parties understand their own agendas in differing, sharply distinct terms. We remember 1800 and its very hard hardball. “Popular sovereignty” and “freedom national” were at bottom opposing constitutional notions in the 1850s, ultimately fiercely held. Cataclysm and constitutional re-grounding followed, we know, unresolved controversies were renewed within new terms, fought in new ways even now.
It is also plausible to think that some polarizations involve refusals to recognize new constitutional understandings as constitutional at all. The dramatic devices of the sit-in sparked civil rights movement often found only awkward constitutional protection, and opponents (notably, otherwise low-key Lewis Powell) denounced that movement as anti-legal and best forgotten. We remember John Lewis well as an individual, bravely hard-headed. But he is less often celebrated as one participant among many other animators of a remarkable democratic leviathan.
We know all this, of course. We worry whether we ought to be able to take steps – discover our inner Henry Clay, as it were – to manage constitutional crises in advance of full out collision. Pozen, Talley, and Nyarko offer us a diagnostic device. The groupings of constitutional dictionary entries they are able to discern are accumulations of instances. These gatherings might be useful preliminaries if we try to impute interior thematics. This is work on our part, not the computer’s. These thematics are the jurisprudential equivalents of literary criticism, plainly not themselves computational, but rather re-visioning computational heaps as harbingers, maybe pointing to Dworkin-like enterprises in the end.
Against this backdrop, we remember Eric Talley earlier on. Writing with Ian Ayres, Talley restated the notion of Solomonic bargains as a question of dividing entitlements, suggesting that such divisions ex ante — more precisely, our responses to them – sometimes worked later to facilitate improving rearrangements. The beginnings of bargaining begin in the disorganization of law. Arbitrageurs read jurisprudence. This article continues to reward close study (not just snap-shot sloganeering) – maybe especially as constitutional analysis one-step disguised. For present purposes: Sometimes as we judge congressional constitutional polarizations, we may search out possible cut constitutional or other legal entitlements as building blocks and begin to sketch bargaining paths as responses. Computational mechanics looks to be part of the beginning stuff of law itself, a first lens in recognizing structural breaks and bends and thus potential rapprochements. Sometimes, anyway. In other instances, the cut entitlement will look to be profound, its remedy not necessarily some sutured recombination.
Not only congressional remarks: constitutions, statutes, judicial opinions, all the rest – these are just words, aggregates and arrangements open to study. Computational analytics frame the window, plot paths into and around or through legal complexities we otherwise see as dense to the point of darkness. Pozen, Talley, and Nyarko touch down on law’s documentary substrate. This is law-at-first they are writing.
For reasons that remain mysterious, the past four years or so have seen a distinct rise in interest among public law scholars in the concept of “office” and surrounding ideas. What is an office, precisely? Is its defining feature one of powers—or of duties? What is the relationship between the office and the person occupying it? Do the powers and duties connected to that office inhere in the office, the officer, or some mixture of both? Can an officer speak for him- or herself, or is that speech always “official?” What is the relationship between office, officer, and the oath of office? Does the idea of fiduciary duty illuminate such questions, or obscure them? Of course these questions have a long pedigree. But since roughly 2017, this broad topic has seen a distinct upturn in scholarly work. One hopes it is not temporary or expedient.
Scholarly work on the question of office can take different approaches—legal or political, practical or theoretical. It can attain a level of abstraction that may yield general insights but few prescriptions—this is my own preferred sin—or give very precise recommendations that are hard to tie firmly to the legal, historical, or philosophical materials. (This is one way, in my view, to read a recent critique of “fiduciary constitutionalism,” even if one thinks the concept is worth exploring.) If one wants to avoid one or the other extreme, one had better be willing to live with tension and ambivalence. That position makes many law professors uncomfortable, given their own normative inclinations and the political and professional incentives that drive them. But it can be achieved—and beautifully, at that. Such is the case with Professor Daphna Renan’s recent article, The President’s Two Bodies.
Renan’s subject is “a central paradox in the structure of American constitutional government.” That paradox relates to any officer, but the keystone example and the subject of this article is the chief executive. Although the Constitution “split the atom of sovereignty,” its roots lie in English legal and political history, and there we find a long concern, both political and metaphysical, with the nature of the king’s authority as sovereign and chief executive. The classic treatment is Ernst Kantorowicz’s book The King’s Two Bodies, which explored the dual nature of the king, in English law and politics, as both an individual monarch with a “body mortal” and an enduring “body politic”: king and kingship, one person with two distinct but indivisible aspects.
Renan traces the idea of the king’s two bodies in changed form through the American presidency along three dimensions, noting the different visions of the presidency that emerge, and the tensions that are produced, from the king/kingship model in each dimension. One is the “personal/impersonal” dimension, arising from the “interdependence of the person and the office of the presidency,” which “belies efforts to make the President’s personal and official character fully severable.” She offers as an example the debate between Justice Jackson and Chief Justice Vinson in the Steel Seizure Case. Here, Vinson stands for the view that “the president’s individual judgment is not an extraconstitutional impulse but a facet of constitutional leadership itself,” while Jackson concedes the charismatic element of the American presidency but sees “the role of constitutional law” as being “to offer a counterweight to presidential charisma in the form of the separation of powers.”
The second conceptual distinction is between the temporary and continuous nature of the presidency. On the one hand, the presidency is a continuing institution that exists and acts across particular administrations. On the other, each president is elected in substantial measure for his or her charismatic vision and is expected to “implement a particular policy and ideological” program. An example of this tension can be found in the law and practice around executive orders, which enable each entering president to put his or her stamp on the office but are constrained, in practice, by procedural norms and rules of “process and publicity” that strengthen the legitimacy and legality of an executive order but also entrench it against sudden changes of course by the next administration.
Finally, there is the “singular/composite dimension,” embracing the distinction between the executive as a particular individual in whom the Article II power is vested and as a corporate institution arising from the fact that “the execution of presidential power,” especially given the nature and reach of the modern executive branch, “requires a collective.” Thus, in Trump v. Hawaii, Chief Justice Roberts’s opinion “embraces an impersonal, thoroughly institutional presidency,” in which the president’s own tweets are less important than the evidence of some proper institutional process in coming up with later iterations of the “travel ban.” By contrast, in Justice Sotomayor’s dissent, what matters is “executive ‘unitariness,’” and “the person of the president cannot—as a legal matter—hide behind the façade of an orderly office.”
Along each of these dimensions and across many issues, Renan argues, the idea of “the President’s ‘two bodies’ has been at the crux of ongoing debates about presidential power,” and the duality of the presidency has been “the defining ambiguity, the central paradox of the constitutional office.” Even as particular decisions and elements of presidential power can be understood better from the standpoint of one vision or another, taken together the duality “plays a mystifying or obscuring role,” while also serving as a constitutive feature of the modern presidency. It “orients practice toward certain fundamental, though conflicting, ideas about what the exercise of presidential power should actually entail,” such as the fundamental—and conflicting—desires for both a charismatic leader to occupy the “body mortal” and a constrained and time-extended executive branch to fulfill our need for a stable “body politic.”
How to resolve this paradox? One of the most admirable and frankly refreshing aspects of Renan’s article is that she does not suggest it can be resolved. We can understand the paradox better, identifying it at work and tracing its complex effects. But we cannot eliminate it. She states forthrightly: “Public law theory cannot solve or somehow move beyond the two-bodies paradox. But it can get the nature of the problems right.”
This is no small thing. That’s certainly true stylistically. Any reader of law reviews gets used to articles that consist of, in effect, 40 pages of second-hand journalism recounting some “new” issue, combined with five or ten pages of a draft statute or judicial opinion; or, on a higher plane, articles with a substantial, nuanced, and fascinating discussion of a legal problem, combined with a cursory, un-nuanced, seemingly obligatory “solution” section. Anything that breaks out of that format is a pleasure to readers.
The approach exemplified by Renan’s article also has disciplinary benefits, and those benefits are of special (but not unique) importance to public law. It is a field that offers many opportunities for technical fixes, on the one hand, and big ideas on the other. Both have their value—and both are diminished by a tendency, reinforced by law review gatekeepers and then reproduced within the academy, to jam the two together. The combination produces less than the sum of its parts. A big idea that is not allowed to end with a question mark is deprived of its full creative potential and often results in the most interesting problems being waved aside, or cut so the cloth can be tailored to the (often politically over-determined) garment. A narrower, more technical fix is more likely to be treated as lacking in prestige if it is not tied to a largely unnecessary 50-page lead-in and gaseous pronouncements about its “broader implications.” We would be better off if leading law reviews were more eager to publish shorter and more “narrow” public law pieces that strip away the extraneities and work on solving one problem at a time—and if “big” pieces abandoned any felt need to wrap things up cleanly with one prescription or another.
This is Renan’s approach here. In examining “the relationship between the person of the president and the office or institution of the presidency,” she does not plump for one vision over the other, but recognizes that both have worked themselves into the fabric of the “presidency,” broadly understood. Just as important is the relationship between them, which makes the chief executive “an amalgamation of the individual president and the institutional presidency.” Unless we more clearly understand the uneasy coexistence of both visions and which vision is being invoked in a particular case, we can expect not only accidental “incoherence in our law,” but also “opportunism,” as officials (including executive branch lawyers) appeal to one or the other line of thought depending on their goals.
I do not mean to overstate the size of the question mark or the degree of abstraction in Renan’s article. It is certainly not abstract. The examples I cited above are only three among many concrete treatments of particular legal issues: executive privilege and immunity, the role of presidential intent and of executive branch institutional processes, the role of the White House Counsel, the extent to which the executive branch can bind future administrations through litigation settlements or consent decrees, and others. Nor is Renan silent on the question of how we might best “integrate” the competing visions of the presidency. Here, her conclusion is that “legal engagement with the two-bodies paradox must come at a more retail level, context by context.” Our answers should focus not on the duality itself, but on the substance of each particular issue. That may leave a good deal of open ground, but lack of a definitive resolution is not the same thing as being irresolute.
It is possible, I venture to add, that we might bring in some of the concepts that have arisen in the context of fiduciary constitutionalism and elsewhere, as in Philip Hamburger’s Law and Judicial Duty—or, still further back, in Cicero’s De Officiis—to think further about the ways in which we have attempted to marry individual and institutional conceptions of governance. The relationship between person and institution is not new, and we have long sought means of effecting a “constitutional marriage of personality and impersonality.” The concept of office itself is a way of doing so, by tying the power of an office to the duties that are fundamental to that office. “What are the highest places,” a judge of the English Court of Common Pleas once asked, “but obligations of the greatest dewties?” Such an approach is embodied in the oath of office itself, which personalizes in the office-holder those sense of duties. And it relies in turn on a “proper sense of honor,” as Washington called it, under which not power or charisma or satisfaction of particular wants, but integrity in the performance of office, are the keys to being held in high regard by others and by oneself.
I doubt any of this can be liquidated into a set of mechanical prescriptions. It is no more certain an answer to particular questions than Renan’s injunction to consider the individual constitutional commitments involved in each particular issue. And it certainly partakes of what may seem an archaic set of motivations and values. But “archaic,” in my view, is a description, not a criticism. It may be that more people now more fully appreciate the extent to which personal character and a sense of honor and promise-keeping are necessary qualities in even the most bureaucratized democratic state, and a necessary counterweight to the charisma that people of all stripes seem to want from our presidents. One hopes they will keep the lesson in mind.
In any event, the overall emphasis in Renan’s article is on what can be better understood but not finally answered. “Even as the two-bodies prism illuminates a crucial role for public law in constituting ‘the President,’” Renan concludes, “it also underscores the limits of law and legal methods in managing its defining ambiguity.” We can better understand the fundamental elements of the presidency and how they interact, but no alchemical formula exists that can transmute them into a single perfect substance. That is a more than satisfactory answer in a tremendously satisfying paper.
The term “reproductive health care” encompasses safe access to gynecologic and obstetric care, prenatal care, the prevention of sexually transmissible disease, contraception, and abortion. The term “reproductive health care exceptionalism” refers to the ways in which law and medicine frequently single out reproductive health care services, particularly contraception and abortion, for different and disadvantaged treatment. In Essentially Elective: The Law and Ideology of Restricting Abortion During the Covid-19 Pandemic, Jessie Hill builds on her thoughtful and important body of work on reproductive health care exceptionalism—and its impact on women’s lives.
Examples of reproductive health care exceptionalism include the special Due Process Clause rules that the Supreme Court applies to the government’s regulation of abortion. Normally, courts apply strict scrutiny to the government’s restriction of a fundamental right; this requires the government to show that its choice is narrowly tailored to serve a compelling government interest, a burden that the government rarely meets. But while Planned Parenthood of Southeastern Pennsylvania v. Casey purported to reaffirm Roe v. Wade‘s holding that a woman’s decision about whether to have an abortion is a fundamental right protected by the Due Process Clause, the Casey Court nevertheless applied a new, more government-friendly, test to the government’s regulation of abortion. More specifically, Casey announced the “undue burden” test for assessing the government’s restrictions on abortion, a test that is much more forgiving of the government than strict scrutiny—and a test with contours and applications that remain deeply contested, as most recently illustrated by the Court’s fractured opinions in June Medical Services, LLC v. Russo.
For an earlier illustration of how reproductive health care exceptionalism discounts the medical importance of women’s ability to control whether and when they procreate, recall longstanding state laws barring the use and sale of contraceptives, laws eventually invalidated in Griswold v. Connecticut. As Reva Siegel and Neil Siegel have recounted, these laws frequently permitted the sale of condoms as medically necessary because they prevented the transmission of disease—but not contraception available only to women that “simply” prevented unwanted pregnancy. The Connecticut Supreme Court even declined to interpret its state’s statute to permit such contraception when pregnancy would put the woman’s life at risk; as Mary Dudziak has documented, the court instead suggested abstinence as the appropriate remedy. In so doing, these states treated women’s decisions about whether and when to procreate as distinct from decisions about medically necessary matters.
More recent examples of reproductive health care exceptionalism include the Department of Health and Human Services’s new rule that interprets the Affordable Care Act to require covered health insurers to send their insureds two separate bills each month: one singling out the portion of the policy’s premium allocated to abortion-related services (generally a dollar) and another for all other health care services covered by the premium. The rule also requires insurers to instruct policyholders to pay the two premiums separately, either by two separate checks or by two separate electronic transactions.
In earlier work, Professor Hill has explored in detail how reproductive health care services like contraception and abortion are isolated physically, legally, and doctrinally from health care more generally—and how this isolation, this exceptionalism, injures women. Writing in 2016, for instance, she examined how courts and policymakers increasingly treat contraception and abortion as political or ideological choices rather than as health care choices, and how this shapes law and policy in ways that disadvantage women. Among other things, she anticipated the Court’s 2018 ruling in National Institute of Family and Life v. Becerra that invalidated, on First Amendment grounds, California law that required “pregnancy service centers” to disclose two sets of objectively verifiable facts to the pregnant women they sought to persuade to continue their pregnancies to term. First, the law required unlicensed pregnancy service centers to inform women seeking reproductive health care services that the centers are in fact unlicensed because they employ no health care professionals. Second, the law required licensed facilities to inform women that the state offers free or low-cost reproductive health care, including prenatal care, contraception, and abortion. In preliminarily enjoining California’s law, the Court’s 5-4 majority said not a word about how pregnant women would find this information helpful to their health care decisions; instead, it focused only on the interests of the speakers who resisted truthful disclosures while seeking to influence those women’s decisions (I’ve discussed the Court’s exceptionalist Free Speech Clause approach to these issues in more detail here).
Hill suggests that if all reproductive health care decisions—including the decision to prevent unintended pregnancy—were seen as medical matters, policymakers and courts might be slower to single out contraception and abortion for disadvantageous treatment. To this end, she urges that we understand reproductive health care through a medical framework that recognizes these as medical decisions, as well as through an equality framework that understands them as key to women’s political, social, and economic equality.
Essentially Elective furthers this body of work by examining the problem of reproductive health care exceptionalism as illustrated by states’ regulation of abortion in response to the COVID-19 pandemic.
This past spring, government officials in several states interpreted their states’ executive orders that halted the delivery of “elective,” “non-essential,” or “non-urgent” medical treatment to stop or indefinitely delay many (if not most) surgical, and sometimes medical, abortions.
Yet, as a statement by the American College of Obstetricians and Gynecologists quickly made clear, “a delay of several weeks, or in some cases days, may increase the risks or potentially make [abortion] completely inaccessible. The consequences of being unable to obtain an abortion profoundly impact a person’s life, health, and well-being.” Shortly thereafter, the American Medical Association issued its own statement emphasizing that “physicians—not politicians—should be the ones deciding which procedures are urgent-emergent and need to be performed, and which ones can wait, in partnership with our patients.”
The states’ actions prompted litigation seeking emergency relief to keep abortion clinics open—litigation unnecessary to protect any other medical procedure during this period. The results in the federal courts of appeal were mixed: the Sixth and Eleventh Circuits protected a relatively wide range of abortion procedures from the orders’ interference, while the Fifth and Eighth Circuits permitted a smaller number of procedures to continue.
In the medical community, Hill tells us, the term “elective” simply refers to those procedures scheduled ahead of time. But policymakers and the public often understand the term to mean procedures like cosmetic surgery that are not medically necessary. In the abortion context more specifically, policymakers often refer to the overwhelming majority of abortions in the United States—that is, those where the woman decides to have an abortion for “reasons related to [her] unreadiness or inability to parent a child (or an additional child)”—as “elective.” Anticipating the possibility that Casey may soon be overturned (since the various opinions in June Medical make it hard to identify a majority of the current Court willing to preserve it), she predicts that some, perhaps many, states may respond with laws that prohibit “elective abortions” while permitting those deemed “medically necessary.” As Hill observes, “[t]his problematic definition of ‘elective’ abortion is a form of abortion exceptionalism, as it uniquely stigmatizes the abortion decision and adopts a concept of electiveness that would not apply to other surgeries. The notion that abortions chosen for particular reasons are somehow optional or non-therapeutic implies that the natural and expected course for all women is motherhood and that terminating a pregnancy is a ‘choice,’ but continuing one is not.”
To address the problem of reproductive health care exceptionalism, Hill proposes that we “integrate abortion into the health care framework by viewing patients’ abortion decisions as analogous to other patients’ health-care decisions.” To this end, she suggests that scholars and advocates avoid the use of “elective” in this context, and instead recognize that avoiding unwanted pregnancy is a medical decision with a wide array of physical, financial, social, and other life-shaping consequences.
The more we understand decisions about contraception and abortion as medical decisions, Hill concludes, the better to resist efforts to restrict access to reproductive health care—by rendering illusory the distinction between “medically necessary” and “elective” reproductive health care services and by empowering individual women and their health care providers to make these medical decisions free from the government’s second-guessing.