Jan 17, 2025 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 21st-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 20th 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-19th-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.
Nov 25, 2024 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.
Oct 18, 2024 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.
Cite as: Leah Litman,
Locke(d) in a Vicious Cycle, JOTWELL
(October 18, 2024) (reviewing Christopher S. Havasy, Joshua C. Macey, & Brian Richardson,
Against Political Theory in Constitutional Interpretation, 76
Vand. L. Rev. 899 (2023)),
https://conlaw.jotwell.com/locked-in-a-vicious-cycle/.
Sep 19, 2024 Evan Bernick
Joel Alicea,
Constitutional Theory and the Problem of Disagreement, 173
U. Pa. L. Rev. __ (forthcoming, 2024), available at
SSRN (February 27, 2024).
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
Aug 8, 2024 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.
Jul 9, 2024 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.
Cite as: Pat Gudridge,
One or Many More or Less, JOTWELL
(July 9, 2024) (reviewing Benjamin Eidelson & Matthew C. Stephenson,
The Incompatibility of Substantive Canons and Textualism, 137
Harv. L. Rev. 515 (2023)),
https://conlaw.jotwell.com/one-or-many-more-or-less/.
Jun 19, 2024 Leonid Sirota
Chief Justice John Roberts (in)famously parodied the gap between the interests of judges and practising lawyers and those of academics by suggesting that the latter were unaccountably preoccupied by “the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria.” One law professor even jokingly took him up on the suggestion. But the real trouble, comparative constitutional scholar Aileen Kavanagh might say, is that constitutional law scholars would not even be interested in 18th-century Bulgaria. Categorical imperatives, sure; the people for whom they are to serve as universal laws, not so much.
Kavanagh wants to change that: she wants us “to ‘keep it real’ in constitutional theory.” Too much constitutional scholarship, she argues, is inattentive to the real world, to the flesh-and-blood individuals who inhabit it, and above all to the institutions that govern it. It busies itself with propounding normative theories derived, at best, from highly stylized models of reality, and disdains “mere” description of how things actually work. That’s not good enough, Kavanagh argues. Because “[t]he normative depends on the descriptive to a large degree…, constitutional theorists of all stripes would benefit from submitting their theories to a rigorous reality-check.” This is, it may be worth emphasizing, a concern with and an argument about scholarship, not adjudication. At most, as is noted below, more reality-based academic work may prove more useful to the courts than its more abstract counterpart.
Kavanagh’s examples of how unreal the most seminal scholarship, and the debates to which it gives rise, can be come from the abundant literature on the legitimacy of judicial review of legislation. Both Ronald Dworkin’s embrace of judicial review and Jeremy Waldron’s rejection of it invoke deliberately idealized representations of institutions they extol, and distinctly unfriendly, if not outright crude, depictions of the ones they condemn. The one “has very little to say about doctrinal constraints, constitutional remedies, and the limits of judicial expertise on polycentric questions.” In the other, “the dirty business of political bargaining and policy negotiation are airbrushed out [of] the picture.” Similarly, the “countermajoritarian difficulty” literature, beginning with Alexander Bickel’s work, neglects the comparative rarity of judicial review, let alone of cases where statutes are in fact struck down, when viewed against the overall volume of legislative output.
But these are, indeed, only examples of a much broader trend. One might adduce others, big and small. Picking up, first, on Kavanagh’s theme, one might observe that the literature on the legitimacy of judicial review is (almost?) entirely focused on rights-based questions, and neglects judicial review that serves (or fails) to enforce separation of powers rules or federal division of powers. Somewhat further afield, one could point out almost ritualistic denials that anything like originalism is ever practiced by courts outside the United States and perhaps Australia. Such denials neglect the complexities of the jurisprudence in Canada, the supposed home of living constitutionalism, and elsewhere. Conversely, one could also point out—and Adam Samaha has pointed out—that the ostensibly stark differences between originalism and its competitors often matter less than one might suppose. And these too are only examples drawn from my own pet areas of interest.
As Kavanagh emphasizes, attention to facts will allow us to have a richer and more accurate understanding of constitutional law. She elaborates on the complexity of the relationship between legislatures and courts, which is sometimes conflictual and sometimes interdependent. That relationship is the subject of her recent book The Collaborative Constitution. But even if one’s ultimate aim is resolutely normative—and Kavanagh does not deny the value of normative claims in constitutional law—it will be better served by paying close attention to facts. As Kavanagh sensibly notes, “Recommendations to judges or legislators about what they should do, must be grounded in an appreciation of what they can and cannot do.” Otherwise, they are pointless.
A further benefit of realism, incidental but not unimportant, may be to lower the temperature of some of the most overheated debates in constitutional theory. A fuller understanding of constitutional facts may show that the stakes in these debates are not quite as high as participants make them out to be. As Kavanagh observes in relation to the debates about the legitimacy of judicial review, the point is not to deny “inevitable tension, friction, competition and conflict,” but rather to avoid strictly “oppositional framing” and “Manichean narrative.” Realist scholars will find it easier to learn from one another, as well as from the facts and rules they engage with.
What, then, are the missing facts and rules with which such scholars ought to engage? Kavanagh is most interested in “the behaviour of constitutional actors,” their “deeds and decisions, their actions and words,” and ultimately “the values, principles, norms and ideals which motivate their behaviour.” But I do not read her as saying that the institutional perspective she adopts in her own work is the only right way to “keep it real.” One program for constitutional realism, which Kavanagh does not mention, but to which those disposed to heed her appeal would do well to pay attention, is the approach described by one of its founders as “politics without romance”—that is, public choice. Nor need one confine one’s observations to the persons or institutions most readily described as “constitutional actors.” Not least, a realistic constitutional theory needs to pay attention to voters, in all their rational ignorance and equally rational irrationality.
Of course, there are some potential pitfalls in a move towards “keeping it real in constitutional theory.” They’re worth highlighting not by way of criticism of Kavanagh’s project but, on the contrary, because they might prevent us from realizing its full value.
One such pitfall would be reminiscent of certain unsavory strands of international relations thought, where “realism” is little more than a euphemism for an abdication in the face of power. One sees this sort of thinking in administrative law scholarship that makes acceptance of the legitimacy of the administrative state the measure of a theory’s plausibility. Kavanagh anticipates this concern and points out that expecting constitutional theory to “fit” reality “neither precludes critique nor undercuts prescription.” The constraint it imposes is more modest and salutary, being simply that “our theoretical arguments are not a matter of pure creativity and utopian imagining.”
Conversely, it would be a mistake to use realism as a justification for falling into the conspiracism about how the world “really” works that is, as Joseph Heath argues in a recent essay, manifested in some forms of “critical theory.” It is, he argues, a “very modern sort of witch-hunt, in which our institutions are castigated for producing various evils, but where no one can point to any clear examples of how they are doing it.” Despite the pretence of a clear-eyed or even scientific understanding of the world, such thinking is, in reality, the product of precisely the kind a priori normative theorizing Kavanagh cautions against.
Last but not least, we need to be aware of the limits and trade-offs that “keeping it real in constitutional theory” involves. Kavanagh points to this issue in a discussion of comparative constitutional law, where calls “to propose and prescribe ambitious normative theories with global reach” can only be met at the expense of fine-grained attention to the detail of how individual constitutions function. Thus, more realistic scholarship may have to be, in a sense, less ambitious, though it would surely be more accurate to say that its ambitions would lie elsewhere instead. And again, the example given by Kavanagh is not the only one. Even when working on a single jurisdiction, it is a tall order to be attuned to institutional realities, public choice considerations, and whatever other factors “keeping it real” might involve. We need, unfortunately, to also be realistic about what we can hope to accomplish.
But the difficulty of a task and the inevitable limitations on its achievement are not good reasons to shirk it altogether. Kavanagh makes a compelling case for more grounded, more subtle, and richer constitutional theorizing. It will be hard and it will be imperfect. But it will be worthwhile.
May 27, 2024 Rebecca Zietlow
Jill Wieber Lens, Fetal Life Hypocrisies (unpublished draft 2024).
The United States Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, rejecting a constitutional right to choose an abortion, has laid bare the landscape of the inequality in reproductive rights and health care in this country. In Fetal Life Hypocrises, Jill Wieber Lens questions the foundational justification for state bans on abortions, that banning abortions will promote fetal life. Lens argues that both the antiabortion and proabortion movements have failed to recognize the millions of fetal deaths that are not caused by abortions. State bans on abortion are unlikely to significantly reduce the number of abortions nationally. However, they will likely increase fetal deaths, the legal term for miscarriages and stillbirths, pregnancy losses before and after 20 weeks, respectively. Moreover, the women who are most likely to lose their pregnancies are those who had the least protection under the previous Roe/ Casey regime—people of color and poor people of all races. The Dobbs ruling forces advocates for reproductive rights to re-theorize constitutional claims for rights and provides an opportunity for a widespread campaign for reproductive justice.
As reproductive justice advocates have been arguing for years, even before Dobbs millions of people lacked control over their reproductive lives. The individual liberty based right to choose an abortion identified by the Court in Roe was woefully inadequate to achieving reproductive rights for many people, especially women of color and low-income women of all races. Most notably, the Supreme Court held that neither the states nor the federal government were obligated to pay for abortion services, so that people who are dependent on the state for their health care lacked access to abortions well before Dobbs. Advocates in the reproductive justice movement point out that throughout our history, people of color have lacked not only the right to choose not to have a child, but also the right to choose to have a child, and to raise that child and parent her with dignity.
Since Dobbs, state bans on abortion are presumed to be constitutional on the grounds that they further the state’s interest in protecting fetal life. The Court has taken this for granted since its decision in Roe v. Wade, which found a fundamental right to an abortion but recognized the countervailing state interest of protecting fetal life. When litigating Roe v. Wade, Roe argued that banning abortion does not advance the state interest in protecting fetal life. However, the abortion rights movement abandoned that argument after Roe, as the Court ruled that the state’s interest wasn’t strong enough to ban abortion until after viability.
Since Roe, Lens points out that both abortion rights advocates and opponents take a binary approach to pregnancy and assume that all pregnant people who do not obtain abortions will eventually give birth. Abortion, however, is not the only reason, and by far not the most common reason, for fetal deaths. To the contrary, Lens points out that “hundreds of millions of unborn lives end long before live birth and not because of abortion”—but because fertilized eggs do not implant in the uterine wall, result in miscarriages, or are stillborn. Reproductive justice advocates recognize that the inability to bear a wanted child is a harm that women of color suffer disproportionately, either because they have been forcibly sterilized or because they have inadequate access to health care. Indeed, Lens points out that the risk of stillbirth is double for women of color, and for poor women of all races. Black women are also more likely to suffer late miscarriages and to die in childbirth.
States like Alabama, Mississippi, and Arkansas enthusiastically banned abortion after Dobbs to protect fetal life, yet they consistently have the highest fetal death rates in the nation. Other high-income countries have dramatically decreased their stillbirth rates. The U.S., which has one of the highest stillbirth rates among high-income countries, could do the same. The U.S. could focus on providing preventative prenatal care, by expanding access to Medicaid and ensuring access to skilled medical professionals. Yet the very states that have the most restrictive abortion laws, including Mississippi (where the Jackson clinic is located) do the least to prevent (non-abortion) fetal deaths. Those states are the least likely to have adequate health care, especially for low-income people. The states with the most restrictive abortion laws, including Alabama and Mississippi, have refused the Medicaid expansion made available to states by the Affordable Care Act. Abortion bans are compounding the healthcare crisis in those states. Many doctors argue that restrictive abortion laws make it impossible for them to practice medicine effectively. Some of them are leaving states with restrictive abortion laws, further compounding the lack of prenatal and birth healthcare, especially in rural areas. Therefore, it is likely that fetal deaths will increase, not decrease, in states that ban abortions. Indeed, according to Lens infant mortality has increased by 11.5% in the state of Texas since the Dobbs opinion enabled the state to enact an almost total ban on abortions.
Lens argues that the failure of antiabortion advocates to recognize other fetal deaths is hypocritical and inconsistent with valuing fetal life, undermining the argument that abortion bans rationally serve a legitimate government interest. Lens thus advocates for a more blatant inclusion of pregnancy loss prevention efforts within the reproductive justice framework and abortion rights narratives. Legal challenges based on fetal life hypocrisies would be subject to rational basis review and courts are highly deferential to state legislatures that restrict abortion rights. Yet even rational basis review requires a legitimate government interest to justify the legislation. Lens claims that the lack of concern for protecting fetal life exhibited by states that restrict abortions undermines their claim that they have an interest in protecting that life. Lens also argues that the states’ comfort with the high rate of fetal death reinforces arguments that abortion bans are intertwined with gender and motherhood stereotypes, adding force to the claim that abortion bans violate Equal Protection.
Most importantly, uncovering the fetal life hypocrisy of states restricting reproductive liberty turns the tables on opponents of abortion rights, putting them on the defensive, and abortion rights proponents on the offensive. After Dobbs, abortion rights advocates must lean into reproductive justice, advocating a holistic approach to reproductive rights in the future. Lens’s Fetal Life Hypocrisies makes an important contribution to this effort.
Apr 17, 2024 Paul Horwitz
- Tom Ginsburg, A Constitutional Perspective on Institutional Neutrality, in Revisiting The Kalven Report: The University’s Role In Social And Political Action (Keith E. Whittington and John Tomasi, eds), (Forthcoming) availible at SSRN (Feb. 12, 2024).
- Robert Post, The Kalven Report, Institutional Neutrality, and Academic Freedom, in Revisiting The Kalven Report: The University’s Role In Social And Political Action (Keith E. Whittington and John Tomasi, eds) (Forthcoming) availible at SSRN, (Aug. 19, 2023).
The two papers on offer here are neither complementary nor opposed as such, although they have points of agreement and disagreement. They are properly paired, however. Most simply, both papers are chapters in a forthcoming book, one I eagerly await: Revisiting the Kalven Report: The University’s Role in Social and Political Action, edited by Keith Whittington and John Tomasi and published by the Johns Hopkins Press. As their titles suggest, they concern the same question: Should “the university,” in a corporate sense, speak on the controversies of the day?
This is a perennial question, of course. But it was given renewed attention by the events of 2020, which led to hundreds of universities issuing statements of varying strength and detail. And the question returned with the mishegoss of university responses to October 7th and the larger Israel-Gaza conflict, the responses to those responses, the replies to those responses and so on.
Since 1967, a key document in the discussion of universities’ obligation to speak or remain silent on such questions has been the Kalven Report—more formally, the Report on the University’s Role in Political and Social Action, issued by a University of Chicago faculty committee chaired by the great First Amendment scholar Harry Kalven, Jr. The report described itself as “principally…providing a point of departure for discussion.” And so it has. The report’s account of the role of the university, and its recommendation that universities refrain from taking “collective action on the issues of the day,” save for circumstances involving threats to the “interests” and “values” of the university itself, has become influential—in the abstract. As the rash of recent statements indicate, however, it has been less influential in practice, although the latest round of controversy may change that. The book, and the selections commended to you here, are certainly timely—somewhat ironically, perhaps, since a signal element of the Kalven Report is its recommendation that universities not treat every moment of perceived urgency as creating a requirement to speak.
For Ginsburg, the best way to understand and justify the “institutional neutrality” of the university recommended by the Kalven Report is in small-c constitutional terms. The university, he writes—and I quite agree—is an institution. It requires “structure and rules”—in short, a constitution, a set of “institutional pre-commitment[s]” to its “foundational principles.” Ginsburg argues that “institutional neutrality” concerning “external issues of the day” is such a principle, or, perhaps, a vital underpinning to those principles.
In particular, on Ginsburg’s view, it serves the principle of robust internal debate within universities. When university leaders speak out on contested issues, this discourages existing members of that university from “inquiring into the issue” and potential members from joining it, and “may generate backlash that threatens the broader academic enterprise.” Ginsburg likens these points to the function of national constitutions. Such constitutions, he writes, “do three things:” they make politics possible by allowing for agreement on “basic institutions”; they “articulate shared values and aspirations” the polity can work toward; and “they lower the stakes of politics by taking certain things off the table, reducing wasteful conflict.” He is particularly interesting on the last point, arguing, following Stephen Holmes, that such constraints “serve to empower, by channeling energy into productive activities and away from zero-sum questions.”
Similarly, university administrators’ institutional role is to “facilitate the process” of academic and intellectual activity, “not to engage in it directly. The university’s “shared goals and aspirations” are truth-seeking and hospitable to diverse views—although Ginsburg acknowledges that whether that is “the telos of the university” is a hotly contested point. Finally, institutional neutrality “reduces the stakes of administrative control by taking some things off the table,” reducing the “wasteful” energy and internal and external politics directed at “crafting corporate statements.” These values and constraints, Ginsburg argues, are not less but more relevant and necessary “in an age of polarization.”
Although Robert Post and Ginsburg may not be too far apart on questions of practical policy, Post’s approach to the Kalven Report is quite different: more analytic, more skeptical, more willing to push at its generalities, poke at its tensions, and question its seeming certitudes. “On close inspection,” he writes, “the Kalven Report is not quite clear about the justification for its bold assertion that universities must adopt a position of ‘neutrality’ with regard to issues of social and political controversy.” He questions the empirical claim that university presidents’ declarations on such issues will “pressure[ ] dissenting faculty to conform to an official university position.” He draws the conversation back to one of the key issues underlying the Kalven Report itself—not press releases, but university decisions about how to invest or divest funds, which he views as not “plausibly connected to faculty research or teaching.” And he sees similar empirical questions in “intermediate cases,” such as whether a tweet on current events issued by a school of public health—and may one interject a quick “God help us,” both that such tweets, written by God knows who, engender controversy and that they exist at all—actually chilled any internal “discussion and inquiry.”
Post’s bottom line is that “a mechanical principle of institutional neutrality does rather little analytic work.” When it comes to speech about “ideas unrelated to a university’s core mission,” the question is simply the “contingent and empirical” one whether there is a “resulting chill on academic freedom.” In his view, this question is better asked not in the Kalven Report’s language, but in terms of “the perennial quest of universities to preserve immunity from external control.” The more universities extend themselves, speaking about matters besides “the production of education and knowledge,” the further out on a limb they will be, and the more they will reasonably “invite society to impose forms of external regulation that many members of the academic community may deeply oppose.” In such cases, having ventured outside their core mission, they will be unable to claim the mantle of academic freedom.
Post, whose chapter is practically allergic to any use of the word “neutrality,” prefers the formulation of Princeton’s president, Christopher Eisgruber, who speaks about “institutional restraint.” It is, Post writes, “a counsel of prudence, not a principle of academic freedom.” Universities may pursue other ends and speak out on other issues. But given the obligation of university administrators to “protect the independence of their universities,” they “ought to use care and prudence in pursuing goals extraneous to education and research.”
In practical terms, the two contributors are not miles apart. Ginsburg is not unabashed about the phrase “institutional neutrality” but content to use either phrase, viewing both as “standards, not bright line rules.” Post is adamant about the analytic shortcomings of the Kalven Report, but his warnings about the dangers of exceeding a position of “restraint” are sternly put. I think Post is too light about the difference between university speech and departmental speech, however. I would not want to make claims about the chilling effect of a tweet by whoever has momentary control of a departmental Twitter account. But many academic departments have issued more formal statements of late, and the likelihood that untenured professors, at least, could feel compelled to assent to them is greater than the threat from statements by distant administrators. (I leave aside the question whether a whole department, with its myriad sub-specialties, can usefully be said to have an expert opinion, or the “empirical” question whether, when a department issues such a statement, it in fact represents considered disciplinary views rather than merely, inexpertly civilian political ones.)
One might push further than Post’s prudential position and press a little on Ginsburg’s admission that institutional “neutrality” is still simply a “presumption against speaking out,” not a bright line rule, and ask two questions. First, if Ginsburg is insightful in thinking about universities in constitutional/institutional terms, on what basis do university presidents, or “universities” in some corporate sense, speak out at all on issues not clearly or fairly within the scope of their official charge? Individual university presidents may be educated and wise; my own university’s president, for example, has exhibited his own singular intelligence by paying my salary. But that is happenstance. Eisgruber is a smart fellow; but isn’t whatever he might say about the Middle East, or general law enforcement policy, or even his own field of constitutional law—in short, anything except what directly affects Princeton—simply extramural, unofficial speech? If so, on what “constitutional” basis do administrators offer those views on perfectly good university letterhead?
Second, even if both agree that there is necessarily a prudential or uncertain element to any guidance concerning institutional speech by universities on external issues, is there some danger in emphasizing its prudential nature, even if there is also some danger of incoherence in treating “neutrality” as a clear term? Universities have multiple internal and external stakeholders. In their eagerness to embrace the language and logic of the market, their leaders are ever more inclined to have their fingers out in the wind, ready to bend to the wishes of donors, legislators, public and private grant-giving institutions, parents, and students (or “customers”). Many of these stakeholders, and a great many faculty too, are happy to urge on them not only the language of urgency and exigency, but ever more extended and attenuated reasons why some external controversy is really an internal one. Will the language of prudence, or of standards, be enough to keep their courage, such as it is, screwed to the sticking place?
Regardless, both papers, each in its own way, add usefully to our understanding of the Kalven Report, and the larger question of what universities should or shouldn’t say about current controversies.
Paul Horwitz, “The Wise Know When Not to Talk:” Revisiting the Kalven Report, JOTWELL (April 18, 2024) (reviewing Tom Ginsburg, A Constitutional Perspective on Institutional Neutrality in Revisiting The Kalven Report: The University’s Role In Social And Political Action (Keith E. Whittington and John Tomasi, eds) (Forthcoming); Robert Post, The Kalven Report, Institutional Neutrality, and Academic Freedom, in Revisiting The Kalven Report: The University’s Role In Social And Political Action (Keith E. Whittington and John Tomasi, eds) (Forthcoming)), https://conlaw.jotwell.com/?p=1932&preview=true.
Mar 29, 2024 Mark Kende
During the hagiography surrounding the Bicentennial of the U.S. Constitution, Justice Thurgood Marshall dissented. For Marshall, the Constitution could only be celebrated as “a living document.” The original document, and “the government it devised,” was “defective from the start.” Marshall’s words were literally as well as figuratively true, in his view: the document’s flaws began with its preamble and its woefully underinclusive understanding of “We the People.”
Joy Milligan and Bertrall Ross’s recent article, We (Who Are Not) the People: Diversifying Constitutional Interpretation Regarding Fundamental Rights, proceeds from the same premise. “We were never the people,” the article begins arrestingly. Women, minorities, Native Americans, and slaves were irrelevant. The Constitution has procedural and substantive deficiencies, which are “inherent in the document as well as the institutions and rights it creates,” a problem that constitutional theorists and interpreters still have not dealt with sufficiently.
Milligan and Ross contend that the Voting Rights Act of 1965 was the first time that federal voting law truly promoted equality; thus, “No constitutional amendment can be said to have emerged from a functional, inclusive democracy until after 1965.” The article uses this notion to promote the idea that constitutional interpretation now must focus on becoming more egalitarian and democratic.
The article takes unenumerated rights as its focus. The problem here is that the U.S. Supreme Court has been looking back, not forward, by relying on history and tradition as its increasingly central test for constitutionality. The case of Dobbs v. Jackson Women’s Health Organization, nullifying the right to abortion, is a prime example.
This article shows the results of the lack of diversity in the formation—and interpretation—of the Constitution. For example, most constitutional theorists have been white men. But the Reconstruction Congress, and cases like U.S. v. Carolene Products, promoted democracy and egalitarianism. The latter case led to the “representation reinforcement” theory of John Hart Ely in Democracy and Distrust (1980). Despite the Constitution’s long-standing procedural flaws, however, that article focused on process. And Ely’s views were mainly about enumerated equality rights, not unenumerated substantive due process rights.
On the latter front, conservatives in the 1980’s started a successful campaign to overturn Roe v. Wade and eliminate any federal constitutional right to abortion. But the Court’s route to conservative victory on abortion has been more meandering, and its approach to substantive due process more complex or inconsistent. For example, the Court in 2015 supported a right to same sex marriage, rejecting the interpretive method used by the Court to oppose the right to abortion and assisted suicide and relying instead on the dignity-based reasoning of Lawrence v. Texas. There is a methodology conflict.
The authors also point out that the narrow approach of Washington v. Glucksberg and Dobbs are problematic. Those decisions emphasize thin notions of liberty. But as far back as the 1920’s, in Meyer v. Nebraska and Pierce v. Society of Sisters, the Supreme Court employed broader notions of liberty in upholding family rights as against the government.
Milligan and Ross argue that the key question in this area is whether the right is an implicit part of the ordered liberty of the United States. This approach was partly responsible for the Court’s endorsement of a right to use contraceptives, which remains largely undisputed. Moreover, Justice Anthony Kennedy wrote several opinions supporting gay rights. In the end, the authors argue that the tradition and history mode simply defaults to the views of white men, which are not sufficiently diverse to support the nation’s full values. This is the essence of Dobbs, which largely ignored women’s views and interests. And the white men in legislatures did not virtually represent women.
The authors also discuss Edmund Burke, Condorcet, and Dworkin in interesting ways. One of Milligan and Ross’s most important arguments is that a mathematical study based on the views of diverse people reaches a better result than a larger Condorcet approach. The authors show that above all, cognitive diversity makes a positive difference. It guarantees different perspectives. Crowds are wiser when diverse.
Then there is the constant debate over the level of generality in substantive due process cases. The right to abortion could be viewed as a right to privacy. Obergefell v. Hodges also was about a right to marry, not just same sex marriage. One must have a broadened view of history and tradition. The authors support an expanded Ely approach. But given Ely’s adamant opposition to the reasoning in Roe, he may not be an ideal example.
In sum, Milligan and Ross develop and extend Justice Marshall’s “dissent” splendidly. They show that diversity is not just something to prize in the present: its absence from the original Constitution and its formation left deep flaws, structural and procedural, in the document, flaws that are only deepened when we turn to interpret it through the lens of history and tradition. This article demands our attention.
