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Mapping the Fault Lines of Normative Constitutional Theory

Andrew Coan, The Foundations of Constitutional Theory, Arizona Legal Studies Discussion Paper No. 16-24 (2016), available at SSRN.

How should courts decide constitutional cases? The question has been a long-time favorite of judges and scholars, who have defined, developed, and defended a variety of approaches to the project of constitutional adjudication. Some such approaches privilege the “original public meaning” of the constitutional text; others emphasize judicial precedent; others require close attention to moral considerations; others focus on welfare maximization; others place weight on majoritarian preferences; others look to social movements; others privilege representation reinforcement; and countless others require a complex weighing of these and other factors against one another. When it comes to the application and development of constitutional law, different theorists think that different types of considerations should guide the decision-making inquiry to different degrees, and a great deal of constitutional scholarship centers on the question of how these various considerations should bring themselves to bear on the resolution of constitutional cases.

But the disagreements among constitutional theorists run deeper than the question of how to decide cases; scholars also disagree about how to evaluate the merits of a given decision-making approach. One cannot defend one’s preferred method of constitutional adjudication without identifying reasons why that method is preferable to others. And to identify these reasons, one must have an account of what a successful approach to constitutional adjudication achieves. Should we value methodologies that consistently produce substantively desirable judicial outcomes? Should we value methodologies that best reflect the Constitution’s status as written law ratified by “We the People”? Should we value methodologies that constrain the power of unelected judges? Should we value methodologies that adhere to conventional understandings of “what the law is”? And so on. Different approaches to constitutional decision-making will look more or less attractive depending on the criteria against which we evaluate them. And different people favor different approaches in part because they disagree as to what those criteria should be.

Andrew Coan’s illuminating new article is about this second set of questions—questions that go to what Coan calls the “normative foundations” of constitutional theory. These questions, as Coan readily concedes, are by no means unfamiliar to constitutional lawyers; scholars routinely identify criteria for evaluating a decision-making methodology and, in the course of doing so, have very often set out to defend the relevance of the criteria they use. But what Coan’s article aims to provide is a systematic examination of the competing sets of “first principles” from which different theories of constitutional decision-making begin. Coan’s goal, in other words, is to survey the existing landscape of normative constitutional theory with an eye toward describing and evaluating the various types of reasons and arguments that constitutional theorists regard as relevant to the choice among decision-making methodologies.

What Coan is pursuing is thus reminiscent of earlier efforts by Phillip Bobbit, Richard Fallon, and others to develop taxonomies of the different “modalities” of arguments that courts and litigants deploy in defending claims on behalf of particular constitutional results.1 Coan is attempting a similar taxonomizing effort, but he is doing so at a further level back: Specifically, he offers a descriptive framework for grouping together and distinguishing between the different sorts of arguments that theorists deploy in defending claims on behalf of their decision-making methods. That latter framework is interesting and useful in its own right, but it gains additional analytical purchase when viewed alongside various method-based taxonomies that predate Coan’s work. By juxtaposing both sets of categorization schemes against one another, we are better positioned to think carefully about the relationship between choices about normative foundations and choices about decision-making method—asking in particular what our methodological commitments imply about our foundational commitments, and vice versa.

So how does Coan categorize the foundations of constitutional theory? Though not purporting to offer an exhaustive list,2 Coan suggests that mainstream theories of constitutional decision-making typically rest on at least one of four such “normative claims.” These are:

  1. Metaphysical claims, which “contend that the correct approach to constitutional decision-making follows deductively from the nature or concept of law or interpretation or some other important feature of constitutional decision-making assumed to require no justification” (P. 6);
  1. Procedural claims, which “contend that the correct approach to constitutional decision-making follows from some idea of procedural fairness or legitimacy that requires particular constitutional decisions to be made by particular institutional actors” (P. 7);
  1. Substantive claims, which “contend that the correct approach to constitutional decision-making is determined by the moral desirability of the decisions it produces, however moral desirability is defined” (P. 8); and
  1. Positivist claims, which “contend that the correct approach to constitutional decision-making follows from the content of positive law, as defined by regularities of official behavior in a particular jurisdiction at a particular moment in time” (P. 9).

Not all of these claims need be mutually exclusive of one another; if one believes, for example, that present-day legal conventions generally produce desirable judicial outcomes, one could appeal to both substantive and positivist considerations in advocating for a particular decision-making approach. And the categories themselves can accommodate significant variation: Different types of “procedural claims,” for instance, might rely on different underlying concepts of procedural legitimacy, just as different types of “substantive claims” might gauge the moral desirability of outcomes in very different ways. Even so, and as Coan persuasively demonstrates, we can learn a lot about the present-day landscape of normative constitutional theory by thinking carefully about these four different types of normative claims and the different sorts of methodologies they might support.

To begin with, by distinguishing between different types of normative foundations, Coan’s taxonomy facilitates careful and systematic comparison of the foundations themselves. Much of Coan’s article is dedicated to this task. For each of the four foundations he identifies, Coan highlights (a) examples of theories that (either implicitly or explicitly) rest on that foundation; (b) features of the foundation that might make it an attractive starting point for a method of constitutional decision-making; and (c) features of that foundation that make it an unattractive starting point. Thus, for example, when it comes to “metaphysical claims,” Coan observes that several decision-making theories take as their starting point the proposition that judges must “interpret” rather than “modify” constitutional guarantees, the related proposition that the written Constitution represents binding law that judges must obey, or some other baseline proposition that the theory treats as fixed and non-contingent. And having identified a family of theories that share this trait, Coan can then proceed to ask what the proponent of any such theory gains and loses by relying on metaphysical claims. On the plus side, for instance, metaphysical claims might “promise clarity, certainty, and inevitability,” within a world beset by “uncertainty and ambiguity.” (P. 21.) Additionally, metaphysical claims might enable theorists to pitch their arguments in “decisive, knockdown terms,” lending them a “strategic advantage” over arguments whose “moral premises . . . are both contested and vague.” (P. 22.) And finally, metaphysical claims—to the extent they rest on “widely shared premises” about law—might facilitate a useful degree of “overlapping consensus” among persons who disagree about more fundamental matters of political morality. (P. 23.) On the minus side, metaphysical claims threaten to “mask the role of choice in constitutional decision-making,” treating as constant and inexorable a set of propositions that are in fact contested and contingent (P. 26.) Relatedly, metaphysical claims might end up carry an only limited persuasive appeal: by invoking capacious ideas such as “interpretation” or “binding law,” metaphysical claims may well rely on particular conceptions of those ideas that nonadherents simply reject. And metaphysical claims might even “have the potential to be self-defeating” (P. 27): To the extent that their premises deductively require an unpalatable, unpopular, or otherwise undesirable decision-making methodology, metaphysical claims might not so much provide a reason to adopt the methodology as they would provide a reason to “abandon [our] commitment” to the premises themselves. (P. 27.)

Coan continues this exercise in connection with the other three members of his typology—i.e., “procedural,” “substantive,” and “positivist” claims—and the end result of his efforts is a fresh and insightful overview of the foundations upon which many different theories of decision-making rest. No particular claim emerges as the obvious winner. Coan attributes strengths and weaknesses to all four of the four normative foundations, and he readily acknowledges room for reasonable disagreement on the question of which foundation(s) should prevail. His article is thus likely to prove a disappointment to anyone hoping for a knockdown, slam-dunk defense of his or her preferred framework for evaluating an approach to constitutional decision-making. But the aim of the article is not to resolve any longstanding disagreements within the world of normative constitutional theory. Rather, it is to facilitate our understanding of where those disagreements come from and of where they are most and least likely to generate fruitful discussion.

What Coan’s analysis suggests, in other words, is that the traditional, methodologically-focused labels that we affix to various theories of constitutional decision-making may end up masking deeper points of convergence and divergence among the theories themselves. It would be one thing if a particular normative foundation always supported a particular type of decision-making methodology. But the world is messier than that, as Coan’s taxonomy helps to reveal. Within the traditional category of “originalism,” for instance, there exist theories that derive from metaphysical claims, theories that derive from positivist claims, theories that derive from substantive claims, theories that derive from procedural claims, and theories that derive various combinations of the four. Within the traditional category of “common-law constitutionalism,” there exist theories that derive from substantive claims and theories that derive from positivist claims, and there might well be room to derive similar theories from metaphysical and/or procedural claims. And conversely, each of the four foundations is itself capable of supporting a variety of different methodological approaches. In short, there is no one-to-one relationship between what a constitutional theory prescribes and where its normative foundations rest. And thus, to the extent that we emphasize similarities and differences at the level of methodological prescription, we end up obscuring similarities and differences at the level of normative justification.

With Coan’s taxonomy added to the mix, we can thus more easily identify what Coan calls “hidden agreements” and “hidden disagreements” between adherents to nominally different theoretical camps. When, for instance, “a positivist originalist clashes with a positivist common-law constitutionalist” (P. 10), their shared commitment to positivism may well matter more than the differing inferences they draw from their positivist premises. Where, by contrast, a “metaphysical originalist clashes with a positivist common-law constitutionalist or a substantive pragmatist, their disagreement is not merely about how judges should make constitutional decisions,” but also—and more fundamentally—“about what types of reasons count in answering the question.” (P. 10.) Indeed, it may even be the case that fellow travelers at the foundational level have more to gain from talking to one another than do fellow travelers at the methodological level: The disagreements between, say, a “consequentialist originalist” and a “metaphysical originalist” may turn out to be far more intractable than the disagreements between a consequentalist originalist and a substantive pragmatist. (The former pair cannot even agree on what the overarching object of constitutional adjudication should be; the latter pair might merely disagree as to how best to achieve the shared goal of generating consistently good judicial outcomes.) In short, by attending to the normative foundations of different constitutional theories, Coan’s taxonomy helps us to identify “points of overlap that create the opportunity for a new and more productive collaboration—among theorists who have generally considered themselves completely at loggerheads.” (P. 11.)

Like any good article, Coan’s work raises many new questions. I found myself wondering, for instance, about the possibility of embedding one type of normative claim within another: One could imagine, for instance, a theorist who adopts a metaphysical postulate for consequentalist reasons (e.g., “Judges must interpret rather than modify the Constitution because any other approach would lead to chaos and disorder.”), or a theorist who adopts proceduralist postulates for metaphysical reasons (e.g., “The written Constitution, whose status as binding law I take as a given, indicates that federal judges should generally defer to the constitutional choices of other governmental institutions”), and I am curious as to how, if at all, these sorts of hybridized theories would fit into the framework that Coan has developed. I also found myself wondering—at the risk of wading too deeply into the waters of jurisprudence and political philosophy—whether one might replicate Coan’s exercise at yet another level back. Having identified different normative foundations of constitutional theory, does it make sense to scrutinize the foundations of those foundations—i.e., the different types of reasons that scholars might deem relevant to the choice among metaphysical, proceduralist, substantive, and positivist claims?

There is, finally, the question of whether one’s metaphysical, substantive, procedural, and/or positivist commitments must always function as “foundations” at the bottom of the analytical tree. It may well be, as Coan suggests, that the best overall approach to deciding constitutional cases is one that (a) begins with an understanding of the big-picture goals of constitutional adjudication, (b) selects the decision-making method that best accords with this understanding, and (c) applies that method to reach case-specific results. But perhaps the process might sometimes operate in a manner that is more “back-and-forth” than unidirectional. I am reminded here of Michael Dorf’s suggestion that “[o]ne does not choose a constitutional theory like a suit off the rack” but that one instead “tailors constitutional theory to one’s own views” about concrete constitutional issues, “including views as they are modified by the initial selection of the theory.3 As a descriptive matter, I would not be surprised if most judges and scholars arrived at their preferred methods of decision-making in just this way, and as a normative matter, I can see why the approach might sometimes prove more attractive than the purely “bottom up” method that Coan’s framework implies. None of which affects the overall utility of the framework itself—Coan’s categories remain clarifying even if their constituent arguments do not always operate at a purely “foundational” level. But the framework does at least raise the important question of whether—and, if so, when—our big-picture objectives, methodological preferences, and assessments of individual outcomes might sometimes relate to one another in a fashion that is more iterative than deductive.

These are just a few of the questions and ideas that Coan’s article helped to generate within my own mind, I suspect that it will be similarly thought-provoking to others who take the time to read it in full.

  1. See, e.g., Phillip Bobbitt, Constitutional Fate: Theory of the Constitution 3-119 (1982); Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation 100 Harv. L. Rev. 1189, 1194-1209 (1987).
  2. Coan also flags the possibility that constitutional theory might not depend on external norms at all. An alternative, Wittgenstein-inspired view, might instead hold “that constitutional practice is constitutive of its own norms” (P. 12), in which case the project of normative justification would hold no promise. Coan himself rejects that view, but he brackets the question for purposes of this article (Pp. 12-13.)
  3. Michael C. Dorf, Create Your Own Constitutional Theory, 87 Cal. L. Rev. 593, 595 (1999). For a concrete illustration of the idea, consider the widely accepted proposition that any legitimate theory of constitutional decision-making must be compatible with the result of Brown v. Board of Education.
Cite as: Michael B. Coenen, Mapping the Fault Lines of Normative Constitutional Theory, JOTWELL (December 15, 2016) (reviewing Andrew Coan, The Foundations of Constitutional Theory, Arizona Legal Studies Discussion Paper No. 16-24 (2016), available at SSRN),

Scalia’s Jurisdiction

Fred O. Smith, Jr., Undemocratic Restraint, UC Berkeley Public Law Research Paper (2016), available at SSRN.

Chief Justice John Marshall once veered toward tautology in asserting that the Supreme Court “must take jurisdiction, if it should.” In context, Marshall seemed to be saying that the Court’s jurisdiction is properly set by actors other than itself, such as Congress or the Constitution’s drafters and ratifiers. Marshall therefore concluded that for the Court to either “decline the exercise of jurisdiction which is given,” or “usurp that which is not given,” would equally “be treason to the constitution.”

Yet the Court is often called on to construe the amorphous jurisdictional provisions of the Constitution, as well as federal statutes, and those efforts frequently require new, difficult judgments. So discretion has a way of working its way into even the most staunchly formalist efforts to ascertain federal jurisdiction, as most famously argued in a seminal paper by David Shapiro over thirty years ago.

Now Fred O. Smith, Jr., has given us the latest take on federal courts’ jurisdictional discretion. Smith’s timing is doubly apt, because his paper comes on the heels of two important events: first, Justice Antonin Scalia’s unanimous majority opinion in Lexmark v. Static Control Components, which tried to bring order to this field; and second, Scalia’s recent death, which leaves the field feeling both vacant and full of possibility.

Smith’s main target is the idea that “prudential” jurisdictional rules should be converted into “constitutional” rules. In Smith’s view, Lexmark and related cases have underestimated the value of prudential rules of jurisdiction, particularly by viewing them as contrary to principles of democracy. The practical effect of that reasoning, he contends, is that prudential rules are sometimes hardened into constitutional rules. Scalia is an important figure in this story, since he did more than anyone to delegitimize “prudential” jurisdictional rules while entrenching “constitutional” principles.

Smith sets out to defeat Scalia’s democracy-oriented indictment by showing that prudential jurisdictional principles actually foster beneficial forms of court-congress dialogue. And Smith also contends that constitutionalizing prudence runs the risk of curtailing legislative efforts to expand individual rights and remedies. To support those claims, Smith adduces a wealth of examples from a range of time periods and doctrines, with my favorite being his discussion of mid-century certiorari practice. These historical discussions are bound to warm the hearts of federal courts teachers everywhere.

Smith also discusses the short-handed Court’s recent decision in Spokeo v. Robbins. Disagreeing with those who view the decision as inconsequential, Smith persuasively argues that Spokeo is “significant.” For instance, Spokeo intensified Scalia’s reasoning in Lujan v. Defenders of Wildlife by applying it in a suit that was not only between private parties but also resembled common law defamation. While this is hardly the doctrinal earthquake that might have occurred had Scalia still been on the Court, Smith implicitly demonstrates that Scalia’s jurisdictional legacy is outliving him.

Still, Smith’s argument is avowedly limited, in two ways. First, Scalia’s rejection of prudential rules involved considerations other than legislative responsiveness. In particular, Scalia believed that “prudential” principles were illegitimate in part because they curtailed legislative power, and did so without support in the Constitution’s original meaning and its higher form of democratic authority. So Scalia could have continued condemning prudential rules as unwarranted, even after conceding Smith’s claim that they better facilitate legislative democracy.

Second, Smith is not so much a defender of prudential jurisdictional principles as he is a critic of constitutional ones. As Smith puts it at one juncture: “[T]he goal of this analysis is not to defend prudential limits against a baseline of no limits. Rather, the comparison here is between prudential limits and constitutional limits.” So Smith does not necessarily mean to defend, for example, the “prudential” aspects of ripeness, or to dispel the shade that the Court unanimously cast over that doctrine in Susan B. Anthony List v. Driehaus.

The limitations in Smith’s argument point toward an important zone of agreement between himself and Scalia. To be sure, Scalia would be far more likely to view any given prudential rule as unjustified and replace it with a constitutional rule. In some cases, however, Smith and Scalia would presumably agree that prudential restrictions on jurisdiction should simply be eliminated, without any replacement. Lexmark itself, which converted a prudential rule into a statutory merits issue, may supply an example.

Smith and Scalia would also agree that there are important differences between “prudential” and “constitutional” rules. As Smith recognizes, however, this dichotomy is porous and blurred. For example, Smith suggests that the doctrine of state sovereign immunity is best viewed as prudential. While arguably grounded in the Constitution, it can be viewed as “a self-imposed, threshold doctrine of restraint that Congress may abrogate,” at least under some circumstances. In cataloguing that kind of complexity, Smith gives a comprehensive, up-to-date exposition of current law bearing on the prudential/constitutional divide.

But perhaps the best way forward is to set aside those too-familiar labels and focus instead on more specific underlying traits. Doing so would not only avoid a knotty terminological issue, but also reveal the theoretical disagreements beneath the labels.

For instance, Scalia (and like-minded justices) often wrote as though “constitutional” principles had to be discoverable in history, rule-like, and insensitive to the views of Congress. By contrast, Scalia tended to view prudential rules as “judicially self-imposed,” amorphous, and sensitive to statutory law. But Scalia’s own justiciability principles were hardly less judge-made than the supposedly prudential principles he lambasted. And Scalia’s critics might happily characterize as constitutional many jurisdictional doctrines that are substantially innovative, standard-like, or open to at least some legislative input. In my own writing, for instance, I’ve suggested that standing doctrine is a modern effort to implement the open-ended concept of “judicial Power,” making that doctrine both prudential and constitutional.

In time, Smith’s paper might come to mark a doctrinal turning point. Without Scalia, the Court may no longer rely on the prudential/constitutional distinction. Instead, the Court might come to acknowledge that what Scalia called constitutional rules were really the just the distinctive brand of prudential, judge-made rules that Scalia and like-minded colleagues preferred. Jurisdictional debates would then shift in terminology, and perhaps in substance as well. Rather than jousting over labels, the justices would debate how best to develop inevitably prudential doctrines from constitutional and statutory texts.

It is a credit to Smith’s article that it could survive that intellectual and doctrinal shift. While mostly working from within Scalia’s jurisdictional framework, Smith’s critique also contains valuable insights that could outlast it.

Cite as: Richard M. Re, Scalia’s Jurisdiction, JOTWELL (November 14, 2016) (reviewing Fred O. Smith, Jr., Undemocratic Restraint, UC Berkeley Public Law Research Paper (2016), available at SSRN),

Recovering Forgotten Struggles Over the Constitutional Meaning of Equality

Katie Eyer, Ideological Drift and the Forgotten History of Intent, 51 Harv. C.R.-C.L. L. Rev. 1 (2016), available at SSRN.

Legal history can help us overcome the distortions of time and distance that too often obscure our understanding of struggles both past and present. Katie Eyer’s Ideological Drift and the Forgotten History of Intent exemplifies this kind of legal history. Through painstaking analysis of a century of equal protection decisions by the Supreme Court, she seeks to explain a “perplexing feature of the Court’s early 1970s jurisprudence: the Court’s race liberals’ failure to pursue effects-based approaches to Equal Protection liability at a time when such approaches were gaining credence elsewhere.”

In Washington v. Davis, 426 U.S. 229 (1976), for example, the Court held that the Constitution does not forbid the government’s facially neutral actions that create racial disparities, even if such disparities have the effect of reinforcing traditional racial hierarchies. Rejecting a challenge to the District of Columbia’s examination for police officers that had the effect of disproportionately excluding African-American applicants, the Court held that the equal protection clause addresses only intentionally discriminatory government actions. No member of the Court—including Justices Brennan and Marshall—dissented from this constitutional holding.

This failure can be both puzzling and frustrating to contemporary progressives who believe that the equal protection clause should be read to bar government actions that have the effect of perpetuating traditional patterns of subordination, even when unaccompanied by the government’s intent to cause such harmful effects. They see Washington v. Davis and related decisions as impediments to the view that racial disparities are sufficiently suspicious to demand substantial government justification, and that disparities that remain unjustified are morally unsound and instrumentally unwise.

Professor Eyer argues that today’s doctrinal barriers can be understood as a product of progressives’ earlier efforts to overcome a different set of doctrinal obstacles. Beginning in the 19th and continuing throughout much of the 20th century, the Court refused to invalidate government actions motivated by discriminatory intent, so long as the actions were facially neutral in form. (The only exception involved the rare situation in which a challenger could show that a facially neutral action was not only motivated by the government’s animus, but also that it led to the virtually complete exclusion of protected class members, such that it was indistinguishable in practice from a facially discriminatory classification).

In the aftermath of Brown v. Board of Education, Southern resisters thwarted desegregation efforts by exploiting the Court’s refusal to consider underlying discriminatory intent. Without a muscular intent doctrine, school districts could frustrate Brown’s promise by framing their racial hostility in facially neutral terms—for example, through “pupil placement” rules that imposed onerous but ostensibly neutral restrictions on students seeking to transfer from their current (segregated) school assignments. Similarly, in Palmer v. Thompson, 403 U.S. 217 (1971), the Court upheld a city’s facially neutral action in shutting down all public swimming pools, despite the city’s motivation to prevent desegregation.

As Eyer observes, “[T]he ability to invalidate a law based on intent, often taken for granted today, was not a foregone conclusion in the aftermath of Brown. . . . Had the Court never embraced an intent-based invalidation standard, our contemporary constitutional regime would offer a far different, and much bleaker, outlook for racial justice concerns. It is thus important to recall that without intent, we would lack a key bulwark against open evasion of the most basic promises of Brown.”

Thus, the Court’s progressives were determined to overcome the doctrinal problem of their day by insisting on the government’s intent to discriminate as the touchstone for an equal protection violation. Not until the 1970s did a majority form around the premise that covertly discriminatory government actions are as offensive to equal protection values as facially segregationist policies. Indeed, as Eyer points out, not until 1985 did the Court invalidate Alabama’s facially neutral constitutional provision disenfranchising those convicted of “moral turpitude,” even though the president of the state constitutional convention had expressly identified the purpose of the provision as “to establish white supremacy in this State.”

At the same time, Eyer explains how the progressives’ emphasis on intent impeded later efforts to force government to reconsider actions that disproportionately excluded people of color and women without good reason. Only after it later became clear that courts would be very slow to find the government’s discriminatory intent did many progressives come to see a doctrinal insistence on intent as a major barrier to realizing the Constitution’s promise of equal protection.

Eyer’s work reminds us how our challenges can consume our attention and energy in ways that make it difficult to recognize change and thus to pivot from positions for which we’ve fought very hard. We should thus take care to remind ourselves of the inevitability and unpredictability of the likely change yet to come. As Eyer concludes, “Where the law’s content has been defined by a social movement’s own successes, it is on the contours of those successes that battles over meaning will be fought. Thus, the history of intent reminds us that it is predictable that doctrines once thought to serve a particular vision of the good will evolve to reflect other competing groups’ normative aspirations. And so too is it predictable that groups seeking constitutional change will ultimately be bound by their victories, just as their losses may also constrain.”

Cite as: Helen Norton, Recovering Forgotten Struggles Over the Constitutional Meaning of Equality, JOTWELL (October 6, 2016) (reviewing Katie Eyer, Ideological Drift and the Forgotten History of Intent, 51 Harv. C.R.-C.L. L. Rev. 1 (2016), available at SSRN),

A “Follow the Money” Approach to Separation of Powers

Michael Greve and Christopher C. DeMuth, Sr., Agency Finance in The Age of Executive Government, 16-25 George Mason U. L. & Econ. Research Paper Series (2016), available at SSRN.

This year has featured no shortage of excellent doctrinal pieces in constitutional law—so many that I couldn’t choose among them. This article is different: more political science than law, although it does focus on separation of powers. Many Jotwell readers may not have read it. That’s unfortunate. It deserves follow-up work by constitutional law scholars.

Agency Finance in The Age of Executive Government, by Michael Greve and Christopher DeMuth, opens up a wide agenda for constitutional scholarship premised less on doctrinal issues, and more on a series of interlacing fiscal developments that have shifted power to the executive branch. The burgeoning administrative state, the continuing shift towards executive governance, and the lack of political accountability of administrative agencies have long been academic legal literature fodder. Most of these articles explore the doctrinal and policy nuances of the dividing lines between the political branches. The courts, meanwhile, have occasionally cabined the executive with an institutionally appropriate focus on fact-specific and precedent-based analysis. But both the academy and the judiciary are fundamentally inadequate to the task of cabining the executive branch. Neither can substitute for congressional control over and channeling of executive action, the main control built into the constitutional scheme of separated federal powers. Congressional retreat has facilitated executive creep.

Taking a “follow the money” approach to power relations between the political branches, Greve and DeMuth highlight the many ways executive functions are funded outside congressionally controlled appropriations processes. Though “[t]he written Constitution is unequivocal, indeed emphatic, in committing fiscal powers to Congress and in withholding them from the executive,” (P. 2), agency funds increasingly arise from sources outside this mechanism. Little examined compared to other aspects of executive creep, the “growth of off-budget finance reflects a pervasive, secular trend to executive government.” (P. 4.)

The size of this growth is unclear, as there is incomplete disclosure of the sources and amounts of the revenue streams that come to executive agencies outside the budget and appropriations process. The incentives behind this development, and its effects, are also unclear. Why have non-appropriated funds become ever larger in relation to appropriated funds? What does this development augur for notions of actual government operations, compared to how government under the Constitution is “supposed” to operate?

“Off-budget” financing includes executive “taxes” in the form of “license fees, royalties, proceeds from public lands, the sale of ordinary goods and services, and legal fines and settlements.” (P. 6.) Many times, such funds are spent by agencies directly rather than being deposited back to the Treasury for congressional use. Examples abound: military PX, gym, and club fees; Customs and Immigration Service green card fees; FCC “universal service” fees and PCAOB assessments on audited companies; CFPB funding “drawn” from the Federal Reserve system; law enforcement by “private attorneys general” who are paid fees for their work; retention of asset forfeitures by the Department of Justice; and fines and settlements for corporate crimes.

The last of these—fines and settlements—is the largest. The authors present in detail the following patterns concerning fines and settlements:

(1) the rising tide of such prosecution and monetized settlements; (2) their apparent focus on economic sectors with intense financial and regulatory relationships with the government; (3) the pattern of consistent legislative support for expanding the practice; (4) a pronounced tendency toward “presidentialism”; and (5) a startling lack of public accountability at all stages of the proceedings, including the disposition of funds. (P. 17.)

Though not explored in the article, much of this same analysis could be applied to other, smaller sources of executive branch revenue streams. And this series of issues could be explored in individual articles focusing on specific agencies.

What has driven monetary settlements with financial institutions and other corporate entities, as opposed to individual criminal prosecutions of culpable executives? The authors hypothesize several possibilities: (1) legal explanations, such as difficulty obtaining individual convictions or problematic evidence of wrongdoing; (2) political explanations, such as partisan control of federal agencies and state Attorneys General, lobbying proficiency of financial institutions, or personal connections; and (3) an agency-centered theory of non-appropriated budget maximization.

What conclusions may be drawn from the existence of large and growing amounts of agency self-funding? The authors list several, but the most interesting is that “Congress has evolved from lawmaker into enabler of executive government. Its institutional function is to establish semi-autonomous special-purpose governments, while its individual members pursue their electoral careers as official lobbyists of those governments on behalf of narrow interest groups and broad ideological or partisan causes.” Though controversial, such “evolution” has massive ramifications for the American constitutional experiment.

Should the courts accord more (or less) deference to legislative delegation of taxing and spending power than of regulatory authority? Are there implicit or explicit quid-pro-quos, where heavily regulated and favored industry incumbents disgorge some of their profits through fines and settlements that fund the regulatory agencies imposing entry barriers on other potential competitors? What are the implications of this story for the connection between our formal institutions for governance and the actual operation of government?

These real-world operations should be carefully examined by constitutional and administrative law scholars as well as by empiricists. Greve and DeMuth have ably presented a window on a significant issue that—if the rest of us take heed of this important article—should give rise to a major research agenda for constitutional scholars and others.

Cite as: Charles Shanor, A “Follow the Money” Approach to Separation of Powers, JOTWELL (September 7, 2016) (reviewing Michael Greve and Christopher C. DeMuth, Sr., Agency Finance in The Age of Executive Government, 16-25 George Mason U. L. & Econ. Research Paper Series (2016), available at SSRN),

Constitutional Officers: A Very Close Reading

  • Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5 Brit. J. Am. Legal Studies 95 (2016), available at SSRN
  • Seth Barrett Tillman, Originalism & the Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014), available at SSRN

Everybody should read the Constitution. But some of us find more in its text than others. In a series of underappreciated pieces,1 Professor Seth Barrett Tillman may have found an intricate and startlingly coherent set of principles about government structure — as well as a reminder to take the Constitution’s words more seriously than we do.

Much of the Constitution (especially the original 1789 document) deals with structure. It creates government institutions, defines their powers, and regulates their membership. In the course of doing so, many of the Constitution’s provisions deal with individuals who hold government office – officers. Indeed, if you start ticking off references to “office” and “officers” as you read through the Constitution, you may notice two things: There are a lot of them, and many of them are phrased differently.

Consider some examples (emphasis added in each):

  • “Officer.” See, e.g., Article II, Section 1 (“[T]he Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.”)
  • “Officer of the United States.” See, e.g., Article II, Sections 2-3 (“The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law … and shall Commission all the Officers of the United States.”)
  • “Officer under the […] United States.” See, e.g., Article I, Section 6 (“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”)
  • “Public Trust under the United States.” See Article VI (“[N]o religious Test shall ever be required as a Qualification to any … public Trust under the United States.”).

As detailed below, there are many more. Most people, even most sophisticated scholars, have assumed that these textual variations are basically the same. Or, if they differ from clause to clause, people assume that the differences depend on the purpose of the provision, not the differences in wording. But what if that widespread assumption is wrong? One of Professor Tillman’s projects — I am tempted to call it a crusade — is to take these textual differences seriously, and show that the different office-related phrases have distinct meanings.

This isn’t just technicality for its own sake. The debate has important practical consequences. Consider the problem of presidential succession. Article II, Section 1, empowers Congress to decide “what Officer shall then act as President,” if both the President and VP are gone, and current law chooses the Speaker of the House. (Think of the Season Four finale of The West Wing.)

But the Speaker is not an “Officer of the United States.” The Speaker is elected by the people, and Article II, Sections 2 and 3, says that “Officers of the United States” are to be appointed and commissioned by the President. So if “Officer” and “Officer of the United States” are the same thing, the presidential succession statute is unconstitutional (an argument made by James Madison, and later by Professors Vikram and Akhil Amar). But if Professor Tillman is right, i.e., if “Officer” and “Officer of the United States” are different, the statute is fine. And if the dispute is unresolved, it is a recipe for constitutional crisis.

The evidence that Professor Tillman amasses is wide-ranging. Much of it is circumstantial or based on post-ratification practice. But some of it makes powerful points. For instance, so far as we can tell, no President has ever given himself or the Vice President a commission. That suggests that the President and Vice President are not “Officers of the United States,” and raises questions about whether other “Officer” formulations apply to the President.

Here are two more historical examples. First, President George Washington publicly received gifts from French officials (the key to the French Bastille and a portrait of Louis XVI) without asking Congress’s permission. This suggests that he was not subject to the Foreign Emoluments Clause, which applies to a “Person holding any Office of Profit or Trust under [the United States].” Second, in 1792, Treasury Secretary Alexander Hamilton was instructed to report to the Senate “every” person holding “office … under the United States” and their salaries. His ninety-page list included every appointed officer, including those in the legislature, such as the Clerk of the House, but excluded elected officials such as the President, Vice President, and members of Congress. This suggests that some definitions of office will turn on whether one is elected rather than which branch one is in.

Now, there may be alternative explanations for each of these points. Taken as a whole, however, they start to suggest that most of us have been too quick to assume that there is no logic to the Constitution’s varying terminology. Across his publications, Professor Tillman puts forth a systematic, intricate account of each of these terms, which makes sense of the historical examples and provides a consistent and coherent account of the text.

As I understand it, here is a synthesis of the Professor Tillman position:

PhraseMeaningConstitutional Provisions
Officer (simpliciter)Holds an office – includes those holding “office … under the United States” as well as those holding elected positions: The President, Vice President, and Speaker of the House and Senate President Pro TemSuccession Clause, Art. II,
sec. 1
Officer of the United StatesAppointed officers in the executive and judicial branches – subset of those holding “Office … under the United States”Appointments Clause, Art. II,
sec. 2
Commissions Clause, Art. II,
sec. 3
Impeachment Clause, Art. II,
sec. 4
Clause, Art. VI
Office … under the United StatesAll positions created, regularized, or defeasible by federal statute including (nonelected) legislative branch positionsIncompatibility Clause, Art.
I, sec. 6
Rebellion Disqualification
Clause, Amdt. XIV, sec. 3
Test Clause, Art. VI
Offices of Honor/Trust/Profit under the United StatesSubsets of “Office … under the United States”
Honor: Honorary offices with no regular duties, salary, or other emoluments
Trust: Offices with regular duties that are not delegable, e.g., an Article III judge
Profit: Offices holding regular salary or other emoluments
Disqualification on Impeachment
Clause, Art I, sec. 3
Foreign Emoluments Clause,
Art. I, sec. 9
Elector Disqualification
Clause, Art. II, sec. 1
Public Trust under the United StatesElected positions and constitutionally created offices – i.e., the President, Vice President, Members of Congress, and Members of an
Article V national convention
Religious Test Clause, Art. VI
Office under the Authority of the United StatesA superset of “Office … under the United States.” It also includes federally supervised offices, even if not federally created (such as mobilized militia officers)Domestic Emoluments Clause, Art. I, sec. 6

(Thanks to Margo Uhrman for her assistance in compiling this table.)

Next time you confront a separation of powers problem or read through parts of the Constitution, keep Professor Tillman’s chart in hand. Suddenly, it will be hard to assume that the Constitution’s textual variations are meaningless. Indeed, Professor Tillman’s theory makes sense of patterns that most of us never saw. It brings order out of chaos. That is not to say that his position has been conclusively proven. But at this point, I think he has singlehandedly shifted the burden of proof.

Since this is an entry in the Journal of Things We Like Lots, and since I am synthesizing much of Professor Tillman’s work here, I feel the need to venture a final word on his research style. When you read an individual Tillman piece, you will notice exceedingly technical arguments combined with an almost urgent voice. You cannot help but think the author is brilliant, and you cannot help but wonder if the author is rather eccentric. As you read more of the pieces together, you will realize that he has a constitutional project, that he pursues it with great skill and knowledge, and that if he didn’t do it, nobody would.

We need more scholars like Seth Barrett Tillman.

  1. These two recent works advance a longer sequence of research, including: Seth Barrett Tillman, Why Professor Lessig’s “Dependence Corruption” Is Not a Founding-Era Concept, 13 Election L.J. 336 (2014), available at SSRN; Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 61 Clev. St. L. Rev. 285 (2013); Seth Barrett Tillman, Six Puzzles for Professor Akhil Amar (2013), available at SSRN; Seth Barrett Tillman, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. 399 (2012); Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 107 (2009), available at SSRN; and Seth Barrett Tillman, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. of Pa. L. Rev. Pennumbra 134 (2008) (debate with Steven G. Calabresi).
Cite as: William Baude, Constitutional Officers: A Very Close Reading, JOTWELL (July 28, 2016) (reviewing Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5 Brit. J. Am. Legal Studies 95 (2016); Seth Barrett Tillman, Originalism & the Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014)),

Star Wars, Science Fiction and the Constitution

Cass R. Sunstein, The World According to Star Wars (2016).

Cass Sunstein is one of America’s leading legal scholars. Both his work generally and his book about Star Wars specifically have attracted enormous attention from both academics and the general public. But one theme of his new book, The World According to Star Wars, highlights an area that is often neglected: the depiction of constitutional issues in science fiction and fantasy.

Both legal scholars and other commentators on law and public policy would do well to pay more attention to this subject. Far more people watch science fiction movies and read science fiction books than pay attention to serious nonfiction commentary on political and constitutional issues. Whether we like it or not, these products may well have an impact on public attitudes, a possibility supported by some social science research.1 They also often reflect the concerns of their time.

The Star Wars franchise, the focus of Sunstein’s book, is perhaps the most popular science fiction series of our time. Its only plausible rival for that title is Star Trek, which Sunstein also discusses. There is therefore good reason to think about what, if any, message the series conveys about constitutional issues.

In his insightful new book, Sunstein devotes a good deal of space to the implications of Star Wars for constitutional questions, as well as political issues closely related to them. He also, of course, has numerous excellent insights on aspects of Star Wars that have little or nothing to do with law and politics. The book is a treasure trove for Star Wars fans and science fiction fans more generally. But it is the constitutional and political aspects of Sunstein’s analysis that most concern us here.

One point he makes is that the series raises the question of the extent to which it is a good idea for the legislature to delegate power to the executive (Pp. 118-20). After all, Chancellor Palpatine is able to subvert the Galactic Republic and turn it into a despotic empire by utilizing emergency powers delegated to him by the Senate in order to wage the Clone Wars. As Sunstein notes, this issue resonates with current controversies about the use of wide-ranging executive discretion in the War on Terror, and in domestic regulation and law enforcement. Sunstein himself believes that such concerns are overblown (at least with respect to the Obama administration), but recognizes that they raise legitimate issues that we would be unwise to ignore.

Sunstein also uses Star Wars to critique originalist approaches to constitutional theory (Pp. 145-57). He points out that the Star Wars universe developed in directions very different from what George Lucas may have originally intended in the 1970s, and that the alterations made by later writers and directors often made the story better. He analogizes this to the way in which modern court decisions and political movements have changed constitutional doctrine, often also (he contends) for the better.

Unlike in the case of executive power, I think Sunstein’s analogy here is somewhat strained. There are many obvious differences between designing a plot for a movie series and interpreting a constitution. Among other things, changes in the former need not follow a set amendment process, and do not implicate the coercive authority of the state. Instability and internal contradictions in a movie or TV series plot line also have far less potential for harm than similar phenomena in constitutional law.

Even within the context of Star Wars, not all fans of the series will agree with Sunstein’s optimistic appraisal of the twists and turns in the plot added since the original movie. To take just one example, many decry the various innovations developed in the three prequel movies, especially when they seem to contradict the original trilogy on various key points.

Sunstein also argues that “Star Wars is obsessed with the separation of powers” and that it opposes “democratic systems to fascist ones” (P. 116). It is, he believes, especially hostile to the “concentration of power in one person” (Id.). In some ways, he is surely right. The replacement of the Galactic Republic with the dictatorship of Emperor Palpatine leads to massive oppression and injustice. As already noted, that chain of events is set off by what seems to be excessive delegation of power to the executive.

But if the series condemns dictatorship, it does not necessarily come out strongly in favor of democracy. Whenever we see democratic institutions at work (most notably the Galactic Senate), they seem sclerotic and incompetent. Such good as the Old Republic does mostly seems to be the responsibility of the Jedi Order, an unelected elite of genetically superior Force users that usually has little if any accountability to democratically elected bodies.

When the Empire is defeated, it is not by a democratic popular movement, but by a relatively small force of rebels, led by aristocrats (Princess Leia) and elite Force users, such as Luke Skywalker and his mentors Yoda and Obi-Wan Kenobi. While the Rebels seek to restore the Republic, we get little indication of what that might mean in institutional terms – other than the overthrow of the Emperor, of course.

More generally, there is very little sense in Star Wars that institutions (other than perhaps the absence of dictatorship) matter to good governance. Rather, the dominant impression is that things will be fine if good people are in power – people like Luke, Leia, or (in the prequel movies) the Jedi Order and the few “good” politicians, such as Bail Organa and Padme Amidala. In a 1999 interview,2 George Lucas famously said that “a benevolent despot is the ideal ruler” and criticized “dysfunctional” democracies where “[y]ou get these individual voices that are very loud.” To some degree, at least, the series reflects that perspective. It is often ambivalent about whether we should fear concentration of power generally, or merely concentration in the wrong hands.

The emphasis on heroic elites may be a more general limitation of science fiction, and perhaps popular culture generally. It is much easier for a movie, TV series, or other work of fiction to portray the importance of heroic individuals than that of political institutions. Luke, Leia, and Han Solo inspire our empathy and admiration far more readily than a legislature, a court, or a well-run bureaucracy ever could. Star Wars, like many other works of fiction, implicitly conveys the message that the antidote to tyranny and oppression is to make sure the right people are in power.

The series does, however, make one troubling institutional point about democracy that has troubling real-world parallels: The rise of Palpatine is facilitated by widespread voter ignorance. As the prequel movies and the Clone Wars TV series show, Palpatine is successful in large part because the public is oblivious to what is really happening. They do not understand, for example, that the entire conflict between the Republic and the secessionist rebels was trumped up by Palpatine and his allies in order to facilitate his seizure of power. They are also unaware of the risks of concentrating so much power in the office of the chancellor.

The Force Awakens, the most recent Star Wars movie, suggests that the voters have not learned their lesson even in the aftermath of the collapse of the Old Republic and the atrocities of the Empire. Just as Old Republic voters were oblivious to Palpatine’s machinations, those of the New Republic fail to notice the rise of the menacing First Order right under their noses. Sadly, the voter ignorance portrayed in Star Wars is an exaggerated, but recognizably similar, counterpart to the widespread voter ignorance that exists in the real world.3 Like that in Star Wars, real-world voter ignorance is often remarkably persistent.

The fact that Star Wars effectively highlights this problem does not necessarily mean it offers a good solution. Among other things, there is little sense that public ignorance is a problem that might require institutional solutions, as opposed to merely a tool that the villains manipulate, and the heroes strive to overcome. But the series deserves credit for at least raising this important issue.

Although I take a more critical view of Star Wars’ approach to constitutional and political issues than Cass Sunstein does, he is absolutely right to highlight this aspect of the series. Even more importantly, he deserves our gratitude for noting the importance of the portrayal of constitutional issues in popular culture generally. Other scholars would do well to build on his work in that respect.

Despite the inherent difficulty of the task, some science fiction works treat institutional issues with greater sophistication than Star Wars does. Examples include the Babylon 5 TV series and at least some of the Star Trek series, particularly Deep Space 9. There are also some examples in fantasy literature, a genre closely related to science fiction. These and other fictional universes might well repay the sort of analysis that Sunstein devotes to Star Wars.

  1. For example, survey data suggests that children who grew up reading the Harry Potter series have different political views than otherwise similar members of the same generation who did not. See Anthony Gierzynski, Harry Potter and the Millenials: Research Methods and the Politics of the Millenial Generation (2013).
  2. George Lucas: ‘I’m a Cynic Who Has Hope for the Human Race,’ New York Times (Mar. 21, 1999).
  3. I discuss voter ignorance and its dangers in much greater detail in Ilya Somin, Democracy and Political Ignorance: Why Smaller Government is Smarter (2nd ed. 2016).
Cite as: Ilya Somin, Star Wars, Science Fiction and the Constitution, JOTWELL (June 27, 2016) (reviewing Cass R. Sunstein, The World According to Star Wars (2016)),

A Right to Participate in the Electoral Process

Robert Yablon, Voting, Spending, and the Right to Participate, available at SSRN.

In McCutcheon v. FEC, Chief Justice Roberts described campaign contributions as a form of participation in electoral politics. His plurality opinion invalidating aggregate limits on contributions to federal candidates concluded that “[c]onstituents have the right to support candidates who share their views and concerns” and that representatives’ responsiveness to such concerns “is key to the very concept of self-governance through elected officials.” As commentators quickly noticed, there was something curious about this paean to democratic representation: the “constituents” the Chief Justice described were not eligible to vote for most of the candidates they were funding. They were not, in other words, constituents in the usual sense. Was this a mere “oops”? A deliberate, if subtle, move to reshape campaign finance law? Something else?

Robert Yablon’s insightful new article, Voting, Spending, and the Right to Participate, offers a fresh approach to this conundrum. Rather than dismiss McCutcheon’s arguments about political participation as rhetoric or subterfuge, Yablon engages the opinion’s suggestion that “[t]here is no right more basic in our democracy than the right to participate in electing our political leaders,” a right that may be exercised through the franchise or through monetary contributions. What would it mean, he asks, for our disparate law concerning voting and spending to instead conceptualize both as forms of participation in the electoral process?

The question is hard, and more important than it might at first seem, because of the distance between voting and spending doctrine. Yablon provides a bracing discussion of the Supreme Court’s current approaches to voting and campaign finance regulations. While the doctrinal disparity itself will not come as a surprise to any Court-watcher, Yablon’s analysis is at once meticulous and creative. By slicing existing case law into a series of inquiries undertaken in both voting and spending doctrine, he shows the substantial tension between these two areas. When it comes to voting, for example, he describes how the Supreme Court has downplayed the burdens of governmental regulations in part by assessing their consequences in the aggregate; when it comes to spending, the Court has instead considered burdens on particular individuals and readily recognized these burdens as severe. The Court has likewise understood the governmental interests underlying voting regulations in generous terms, required plaintiffs to establish that a voting regulation’s burdens outweigh its benefits, and been unconcerned about lawmaker motives, including entrenchment. For spending, the reverse is true.

Yablon’s analysis thus does more than substantiate a widespread belief that would-be donors fare better than would-be voters before the Supreme Court. It reveals that the Court is engaged in two different analytical projects. Particularly illuminating are Yablon’s reverse-the-doctrine hypotheticals. He asks, for instance, how the Court would have analyzed the voter ID law at issue in Crawford v. Marion County Election Board under the approach it uses in campaign finance cases, or how the Court would have evaluated the expenditure limits at issue in Citizens United v. FEC under the approach it deploys for voting regulations.

Not so fast, you might say. Voting and spending are different activities, implicating different constitutional provisions, and rightly considered using different approaches. Yablon addresses this objection at length. He shows, among other things, how doctrinal silos like equal protection and the First Amendment do not capture existing voting and spending doctrine. The Court’s voting decisions sometimes invoke First Amendment principles, and they depart from conventional equal protection analysis insofar as they focus on the fundamental nature of the right at issue. Meanwhile, campaign finance is a distinctive area of First Amendment law that eschews standard frameworks like content- and viewpoint-neutrality or time, place, and manner restrictions. Acknowledging conceptual differences between voting and spending, Yablon further argues that these differences do not in fact underpin the doctrinal divergence. For example, voting is part of a formalized system that aggregates individual preferences and allocates governmental power, while spending may occur in a more individualized, less structured manner. Yet this does not explain why the Court more readily accepts the government’s regulatory rationales for voting regulations or why it is quicker to recognize regulatory burdens as severe for spending regulations. Some will no doubt disagree with Yablon’s take on the doctrine, the Constitution, or voting and spending as a functional matter, but they will have to look beyond existing case law to press their arguments.

In the final parts of the article, Yablon suggests ways that courts might reconcile voting and spending doctrine, seizing on McCutcheon’s suggestion that these two acts are particular instantiations of a more general right to participate in electoral politics. He considers the constitutional foundations for a right to participate (in particular, Article I, the First Amendment, and the Fourteenth Amendment) and begins to explore how courts might implement the right across contexts. He also provides tentative thoughts on questions that would be raised by a participatory approach, including the one McCutcheon tees up without analyzing: who is eligible to participate in elections and in what ways?

As Yablon readily concedes, he is not attempting to provide a definitive account of a right to participate, and his article generates a host of new questions (indeed, the right to participate he endorses is “multifaceted” and could thus itself be vulnerable to the sort of doctrinal discrepancies he attacks so forcefully). But this just means we can look forward to new articles addressing these questions. For now, judges and scholars alike will benefit from Yablon’s careful doctrinal analysis and his ambitious yet grounded argument for a fundamental right to participate in the electoral process.

Cite as: Jessica Bulman-Pozen, A Right to Participate in the Electoral Process, JOTWELL (April 29, 2016) (reviewing Robert Yablon, Voting, Spending, and the Right to Participate, available at SSRN),

The Value and Limits of Free Exercise Doctrinalism

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The U.S. Supreme Court and Humble Opinion Writing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What We Do With Substantive Due Process

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

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

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

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

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

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

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

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

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