Category Archives: Uncategorized
Oct 25, 2019 Smita Ghosh
Katherine Shaw,
Speech, Intent, and the President, 104
Cornell L. Rev. __ (forthcoming 2019), available at
SSRN.
What happens to presidential statements in court? Recently, litigants have sought to use public statements—including tweets—by President Trump to challenge the various iterations of the travel ban, the prohibition against transgender individuals in the military, and the administration’s decision to withhold cost-sharing reductions from health insurance issuers. As Katherine Shaw makes clear in Speech, Intent, and the President, forthcoming in the Cornell Law Review, courts lack a clear interpretive framework for evaluating the president’s speech. In Trump v. Hawaii, for example, the majority largely set aside the presidential statements that the plaintiffs had assembled as proof that the President’s proclamation violated the Establishment Clause. Justice Sotomayor, by contrast, catalogued these statements in her dissent to conclude that the ban was “driven by anti-Muslim animus.”
Shaw’s is one of several new articles to take on the issue of Presidential speech in the courts. Shaw’s own Beyond the Bully Pulpit: Presidential Speech in Courts, the subject of a jot last year by Mila Sohoni, exemplified this new area of scholarship and established Shaw as a leader in the field (in addition to co-host of the fabulous Strict Scrutiny podcast). In Beyond the Bully Pulpit, Shaw argued that Presidential speech was mostly aimed at “political storytelling” and therefore inappropriate for judicial reliance. There were several exceptions, though, one of which is the subject of this article. The focus on this exception—speech used to indicate presidential intent—makes Shaw’s work timely indeed. In addition to addressing longstanding questions in administrative and constitutional law, Speech, Intent, and the President puts forth a coherent proposal for when and how courts should consider presidential speech to determine intent. Her proposal may come in handy as readers struggle to evaluate legal battles surrounding the Trump administration.
Shaw’s suggestion is simple: While judges should not rely on presidential statements to determine the “ordinary interpretation” of a presidential directive, they can and should use these statements to evaluate constitutional claims in which intent is relevant. (P. 40.) The travel ban case provides an example of this framework. In that case, Shaw says, the Supreme Court should not have used President Trump’s tweets to determine the scope of the travel ban proclamation—to determine whether it extended to Lawful Permanent Residents, for example. But it was appropriate to use the statements as evidence of improper intent under the Establishment Clause. Indeed, for the constitutional question, Shaw says, the court “erred in not taking more seriously the president’s statements.” (P. 50.)
Why the distinction between constitutional cases and “ordinary ones?” In part, the difference is institutional. Generally, our constitutional system contemplates “some executive-branch secrecy.” Congress is bound by a “norm of transparency” to open its proceedings to the public—an obligation that is underscored by the constitutional requirement that each house “keep a journal of [its] proceedings.” Agencies are also required to be transparent and facilitate public participation, reflecting the longstanding concern that unelected decision-makers might become too powerful. Presidents, however, have never been constrained by these obligations. Instead, it is the political process that keeps the executive accountable. Furthermore, there are the practical considerations: Presidential statements are made on the fly, if not on the campaign trail. The amount of presidential speech available to litigants, combined with executive-branch secrecy, invites reviewing courts to cherry-pick presidential statements and misconstrue presidential actions.
Constitutional questions are different. In these questions, individual intent is often relevant—and courts usually make no distinction between the intent of legislative or executive officials. In his controlling opinion in Masterpiece Cakeshop, for example, Justice Kennedy cited the “inappropriate and dismissive comments” of members of the Colorado Civil Rights Commission—who were “administrative” or “executive actors,” as Shaw makes clear—to assess their anti-religious bias and rule in favor of the cake shop.
Furthermore, in what Shaw calls “constitutionally inflected” administrative law cases, courts have considered the intent of an individual administrator. Accardi v. Shaughnessy, for example, concerned an Attorney General who had made public statements about a deportation case before ordering the petitioner’s deportation. While the case is famous for “the Accardi principle” (the requirement that agencies follow their own regulations), it also confirmed that speech indicating the “impermissible intent” or “bias” of a decisionmaker is relevant when the due process clause is concerned. (P. 29.) Cases like these make clear that individual intent is important when examining allegations of unconstitutional bias. Because there is no constitutional indication that presidential intent is irrelevant—in fact, Shaw says, the Constitution may provide an “affirmative constitutional warrant for considering presidential statements and presidential intent in constitutional cases,” because there is no “speech and debate clause” protecting presidential speech—courts can and should consider presidential statements in constitutional cases like the travel ban case. (P. 45.) This is, as Shaw points out, a particularly important question right now. In the Ninth Circuit’s 2018 opinion on the President’s rescission of President Obama’s Deferred Action for Childhood Arrivals (DACA) decision, which the Supreme Court will decide this term, the panel accepted tweets and statements from the President as “evidence of discriminatory motivation” underlying the rescission.
While this issue has recurred in recent litigation against the Trump administration, it is not a Trump phenomenon alone. Presidential speech sits at the intersection of the growth of executive power and the development of what scholars call the “rhetorical presidency” or the “bully pulpit,” the use of public speech as an expected form of presidential governance. The rise of new media and communication technologies have facilitated this transformation. Now, presidents share political statements on the White House’s website, as well as on social media services like Twitter, Facebook, and YouTube. It is no surprise that these statements make their way into the courts. As such, Shaw’s article is as timely as it is interesting.
Shaw’s focus on constitutional questions means that her framework does not address some of the most newsworthy issues of Presidential speech. As she admits, the issue of how the president’s speech might be used to show intent in, say, an investigation into his obstruction of justice remains outside the scope of the article. Moreover, as in any situation in which courts use speech to show intent, one wonders about the unintended consequences. Would administrators keep their more damning speech off-line, concealing any evidence of their intent from judicial scrutiny? In the presidential context, this seems unlikely (or, perhaps, desirable). But what about Mr. Accardi, the immigrant who used the Attorney General’s speech—a pre-circulated list of people who should be deported—to argue that the immigration service was impermissibly biased against him? An Attorney General, or a President, could have just as easily kept the list private, circulating it only to the immigration officials he needed to get the job done. Are there some cases when judicial scrutiny could promote executive secrecy? Given her development of this subject, we have every reason to expect that when scholars take up these and other questions, Prof. Shaw will lead the way.
Oct 7, 2019 Helen Norton
The government enjoys enormous capacities to collect, publish, and disseminate a vast array of data. In a healthy democracy, we hope and expect that the government will share that information to inform, encourage, and inspire the public’s debate and dialogue. Indeed, as Jack Balkin suggests, democratic states should aspire to be “information gourmets, information philanthropists, and information decentralizers.” Too often, however, the government instead skews or stifles the public’s discourse by manipulating data or by denying access to it.
Nathan Cortez adds to our understanding of these dangers by describing the government’s instruments of information control—what he calls “information mischief”—along with their uses and abuses. More specifically, Cortez identifies these tools to include stripping certain online data, terms, and topics from the public domain; abandoning data collection in key areas; censoring scientists and other data experts employed by the government; and invoking transparency as a pretext for declining to cite and rely on sound science (Cortez describes this as “weaponizing transparency”).
Distinguishing the government’s “information that purports to be truthful and objective” from the government’s “messaging that we expect to [be] more subjective,” Cortez focuses on the former. The government’s “[i]nformation that purports to be objective and truthful,” Cortez asserts, “should endeavor to be both.” To this end, Cortez has called upon government agencies to understand themselves as data “stewards”—in other words, “as sentinel[s] that help maximize the quality of data inputs and outputs via tailored procedures.” In earlier work, Regulation by Database, Cortez recommends a range of practices through which the government can ensure that its databases are “reliable, useful, and fair.”
To illustrate what not to do, Cortez documents examples aplenty of the Trump Administration’s information mischief. The federal Occupational Safety and Health Administration (OSHA) no longer publicizes its enforcement sanctions, information that past administrations had highlighted to expose and deter violations of workplace health and safety law. In 2017, the U.S. Department of Agriculture (USDA) removed online public data about inspections and potential violations of the Animal Welfare Act; the department re-posted many of these records after a 2018 congressional report “directed the USDA to restore the data, noting that its removal had violated previous directions from Congress.” And, as Cortez further explains, the Trump Administration stopped publishing documents that shed light, in different ways, on who has access to government power: the ethics waivers granted for lobbyists appointed to federal positions as well as the White House visitor log. These are just a few of many illustrations.
As I’ve explored elsewhere, the government sometimes seeks to manufacture doubt about factual assertions it perceives as inconsistent with its policy or partisan preferences through its expressive choices that include falsehoods and misrepresentations as well as attacks on individuals and institutions that challenge its preferred narrative. Bu the government’s speech of this type is even more dangerous when accompanied by its efforts to control the information available to the public in the ways that concern Cortez. Consider, as a recent example, Trump’s unsubstantiated claim that Alabama “would most likely be hit (much) harder than anticipated” by Hurricane Dorian, followed by reports of the Administration’s directives to National Oceanic and Atmospheric Administration meteorological experts not to contradict the President’s assertions.
To be sure, the Trump Administration is by no means the first to engage in information mischief—although its efforts in this regard may be different in degree and perhaps in kind from those of previous administrations. Nor is it likely to be the last. Robert Lopresti recounts one of many examples in his book When Women Didn’t Count: in 2004 the Bureau of Labor Statistics “became involved in a controversy related to what some interpreted as a deliberate attempt by George W. Bush’s administration to conceal information of which it disapproved” when it announced its plan to halt the collection of data about women’s participation in major industries. And although Cortez applauds the Obama Administration for adopting coherent information policies that emphasized a commitment to transparency, he also notes that Administration’s oft-criticized resistance to FOIA requests.
What can we do to curtail the government’s abuses of its tools of information control? Cortez sketches a range of options. He wonders about administrative law possibilities like hard look review under the Administrative Procedure Act: “If the agency’s record can be undermined by evidence of information mischief, it might invite courts to invalidate the agency’s efforts—or at least trigger more searching review.” He flags the federal Information Quality Act that, among other things, allows aggrieved parties “to seek and obtain correction of information maintained and disseminated” by government agencies. Also helpful is the Whistleblower Protection Act, amended in 2012 to protect government employees’ disclosures about “any effort to distort, misrepresent, or suppress research, analysis, or technical information.” Perhaps more promising, in Cortez’s view, are nonlegal tools. Some are internal to the government, like robust agency policies and norms for principled information control practices. Others are external, like third parties archiving, and thus protecting, data.
Cortez’s paper demonstrates the continuing need for careful study of, and attention to, the government’s information policy—which he understands to mean an administration’s formal policies, as well as its discretionary decisions, about whether, when, and how to collect and disseminate information. And although Cortez’s work sounds primarily in administrative law, it also informs constitutional law by documenting threats to the informed public opinion necessary to a healthy constitutional democracy. As Cortez concludes: “It is unclear the extent to which legal and nonlegal tools can provide meaningful constraints on an executive interested in exploiting its power over information. The most powerful tool may be to fight information with information, drawing attention to these practices and archiving important information.”
Sep 20, 2019 Amanda Shanor
A stellar article by William N. Eskridge, Jr. makes important contributions to our understanding of the meaning and history of sex, discrimination, and big- and small- constitutionalism. Published on the eve of the Supreme Court’s hearing of blockbuster cases about whether gay and transgender people are protected under Title VII’s prohibition on discrimination “because…of sex” (R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, Altitude Express Inc. v. Zarda, and Bostock v. Clayton County, Georgia), the article offers easy entry into the key ideas at stake in significant civil rights issues today. It’s a must-read for anyone interested in civil rights or constitutional theory.
In Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, William Eskridge persuasively argues that Title VII’s prohibition on employment discrimination “because of…sex” applies to discrimination against LGBT people. Eskridge’s article is a tour-de-force exploration of the meaning and history behind “because…of sex.” It is not only a provocative read about the evolution of a statute, but it is also about the way that constitutional and statutory meaning interact over time. Eskridge demonstrates the tight interconnection of the development of Title VII and the Constitution’s treatment, not only of sex, but also of race and religion. He takes a step beyond his prior work to argue that formal changes in constitutional jurisprudence and statutory amendment must inform a statute’s current meaning. That analytical point—demonstrated through a rich and evocative history of “because of…sex”—is the article’s key contribution.
The article opens by discussing the opinions of appellate judges that formed the circuit split that prompted the Supreme Court to take up these cases, in order to explore a set of methodological questions surrounding statutory interpretation. Ironically, Eskridge notes that the methodologies of the judges that concluded Title VII covers LGBT employees would be attractive to the Supreme Court justices (such as Justice Thomas and Chief Justice Roberts) least ideologically inclined to read it to do so. “Will the Supreme Court divide along predictably ideological and political lines—or might the legal arguments provide a canvas to debate the issue in [a] relatively nonideological manner…?” he asks. (Pp. 329-30.)
A central pillar of Eskridge’s thesis is that any interpretation of Title VII’s text, purpose, or precedents—from any methodological perspective—is incomplete without an understanding of its statutory history, by which he means “its formal evolution through a process of amendment by Congress and authoritative interpretation by the Supreme Court.” (P. 331.)
The article elaborates Title VII’s statutory plan “to entrench a merit-based workplace where specified traits or status-based criteria (race, color, national origin, religion, and sex) are supposed to be irrelevant to a person’s job opportunities.” (P. 322.) It presents compelling evidence that “sex” did not mean merely “biological sex”—even in 1964. Even the 1961 Webster’s dictionary defined “sex” with more nuance as:
- (1) “[o]ne of the two divisions of organisms formed on the distinction of male and female,” or sex as biology;
- (2) “[t]he sphere of behavior dominated by the relations between male and female,” or sex as gender or social role;
- (3) “the whole sphere of behavior related even indirectly to the sexual functions and embracing all affectionate and pleasure-seeking conduct,” or sex as sexuality. (P. 338.)
The statutory history that Eskridge explores demonstrates several points. First, in barring employment discrimination “because of [an] individual’s race, color, religion, sex, or national origin,” 42 U.S.C. §§ 2000e-2(a)-(d), and as both Congress and the Court have recognized, Title VII, commits itself equally to purging the workplace of race-, sex-, and religion-based discrimination. Eskridge connects the Supreme Court’s equal protection jurisprudence, especially Loving v. Virginia and McLaughlin v. Florida, to Title VII’s meaning. Given the equal footing of race and sex in Title VII, and the Court’s constitutional holdings that discrimination against interracial couples constitutes discrimination because of race—that is, the race of one person relative to that of their partner—discrimination against a man for partnering with another man (or a woman with another woman) is likewise sex discrimination for Title VII purposes. Furthermore, in Loving, the Court rejected the state’s argument—parallel to that made by opponents of LGBT protections here—that the law did not target whites or blacks, simply inter-racial marriage, because it equally prohibited both races from marrying across race lines.
Second, Title VII not only bars employment practices that treat all women differently from all men, but also practices that treat some men or some women differently because of their sex. The Supreme Court’s first sex discrimination case is illuminating. In Phillips v. Martin Marietta Corp., the Supreme Court held that Title VII prohibited an employer from disadvantaging not all women, but only those with preschool aged children. The deep point, Eskridge notes, is that Title VII is, and has always been, concerned with social roles and the social meaning of sex. That is, the statute, like evolving constitutional norms, targets not biology simpliciter (or the class of all women or men), but disadvantages due to expectations about how a person should behave because of their perceived membership in a class.
In addition, Price Waterhouse v. Hopkins—a precedent ratified and expanded by Congress when it amended Title VII in 1991—committed the Act to the broader principle that employers cannot prescribe non-merit-based gender roles. In that case, Ann Hopkins was denied partnership, despite having brought in $40 million in business in the early 1980s (surpassing all 87 men in her partner class), because some partners viewed her as too pushy, too ambitious, and insufficiently feminine, because she did not meet their stereotypes of how women should behave, dress, and act.
A key—and perhaps the deepest—sex stereotype highlighted by Eskridge is that men should be attracted to women and that women should be attracted to men. (P. 370.) To discriminate against LGB employees is not irrespective of sex (as targeting not women or men, but homosexuality), but doubly impermissible, because it enforces male stereotypes on some employees and female stereotypes on others. Likewise, an employer who discriminates against an employee for being transgender does so because that person fails to meet the employer’s expectations of how a person of that presumed birth sex should identify, dress, or behave. For this reason, too, Title VII should be understood to prohibit discrimination against LBGT people.
Finally, Eskridge explores the way in which the Constitution’s treatment of LGBT people evolved at the same time Title VII was formally evolving. In a series of landmark Fourteenth Amendment decisions between 1996 and 2015, the Court reversed its prior acquiescence to governmental treatment of gay people as criminals and psychopaths. For this reason, Eskridge argues, “judicial precedents premised on the assumption that Congress and employers can discriminate against gay and lesbian employees because they are presumptive criminals or psychopaths not only can be but must be revisited.” (P. 333.) In short, it is not only “constitutionally jarring to know that, in most states, a lesbian couple can get married on Saturday and be fired from their jobs on Monday, without legal redress. It is impermissible, in light of recent constitutional holdings, to read Title VII to permit as much.” (P. 322.)
In this way, Eskridge notably breaks with Bruce Ackerman’s theory of constitutional moments. Where Ackerman views the adoption of the civil rights statues of the 1960s, including Title VII, as a watershed in a string of punctuated moments of higher law-making, Eskridge’s rich history illuminates the dynamic and evolving nature of statutory and constitutional meaning in their longer arc—showing how together Title VII and the Constitution have come to protect LGBT people.
The article concludes that “[t]he statutory text, structure, precedent, practice, and constitutional background norms is so tightly interconnected…[that] a poorly researched textual analysis, divorced from statutory history, [that read LGBT out of Title VII] would amount to an assault on the rule of law itself.” (P. 333.)
The piece provides critical insights into how to think about sex, discrimination, and the evolution of social and constitutional meaning. Often issues, such as those presented to the Court this term are framed as questions of whether constitutional or statutory text should extend to include LGBT people. Eskridge’s rich account forcefully demonstrates that Title VII’s “because…of sex” already does so. Indeed, to read LGBT people out of the statute would undermine principles protecting not only LGBT people or within Title VII, but far beyond them.
Cite as: Amanda Shanor,
“Because…of Sex” & Constitutional Meaning, JOTWELL
(September 20, 2019) (reviewing William N. Eskridge, Jr.,
Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, 127
Yale L. J. 246 (2017)),
https://conlaw.jotwell.com/because-of-sex-constitutional-meaning/.
Aug 6, 2019 Ilya Somin
The Fifth Amendment to the federal Constitution and virtually all state constitutions require the government to pay compensation when it “takes” private property. But many state constitutions also require compensation for government actions that “damage” property. Until now, these “Damagings Clauses” have largely been ignored by legal scholars, particularly constitutional law scholars—and even by property rights advocates. But an outstanding 2018 article by Professor Maureen “Molly” Brady (who has just moved from the University of Virginia to Harvard) could help change that. She sheds light on the origins of these clauses in the late nineteenth and early twentieth centuries, the ways in which they have been largely gutted by court decisions, and what can be done to resuscitate them today.
Twenty-seven state constitutions have clauses clause prohibiting the “damaging” or “injuring” of private property for public use without just compensation. In the article, Prof. Brady explains how damagings clauses were enacted in order to compensate owners for harm inflicted by new infrastructure development that was not covered by the then-dominant interpretation of state takings clauses, which generally required either a physical invasion or occupation of the property or (in the case of regulatory takings) direct restrictions on the owner’s right to use the land. This did not cover such situations as the creation of various types of pollution, debris, and access barriers that sometimes rendered property difficult or impossible to use. But, while the wording of the clauses and the originally understood meaning, suggested they should apply broadly, Brady shows that over time courts in most states effectively gutted them, restricting compensation only to cases where compensation was already likely to be required by state or federal takings clauses.
This history is a lesson in how a seemingly successful constitutional reform movement can be stymied over time by failure to follow up on early victories, and restrictive judicial applications. This experience is certainly worth considering, as modern property rights activists seek to combat abuses of eminent domain, and restrictive zoning. Often, enacting legislation or even (as in this case) passing constitutional amendments is just the beginning of the battle, not the end. Brady’s article is thereby an addition to the growing literature on constitutional reform movements, and the factors that explain their successes and failures.
Brady identifies multiple possible reasons for the ineffectiveness of Damagings Clauses, including judges’ concerns that enforcing them would impose too many constraints on building of new infrastructure. But one factor that is worth highlighting is the way in which the vagueness of the clauses make it difficult to distinguish between “damagings” (which require compensation), and mere diminutions of value (which do not). Another, less emphasized by Brady, is the seeming failure of property rights advocates to engage in strategic litigation to ensure effective enforcement of the clauses.
In many states, the role initially intended for Damagings Clauses was filled by tort claims that offered an alternative mechanism for aggrieved property owners to seek compensation. But Brady argues that neither tort claims nor regulatory takings doctrine offers an adequate substitute for effective Damages Clauses.
This article should be seen as part of a growing recognition among legal scholars that we should pay more attention to state constitutional law. Even in age where the federal government controls more and more areas of public policy, state constitutions still play a major role in constraining abuses of government power. This is particularly true in the field of property rights, where states and localities are responsible for the vast majority of uses of eminent domain, and regulations that restrict or usurp property owners’ control over their land.
The article also makes a good case for why courts should interpret Damagings Clauses more broadly, in the future, so as to impose tighter constraints on state and local officials. As Brady explains, there is a great deal of historical evidence indicating that the original meaning of these clauses provides much broader protection for property owners than courts have been willing to enforce. She also offers a number of reasons why living constitutionalists should support a broader view of these clauses’ application.
The political backlash generated by the Supreme Court’s 2005 decision in led to numerous state constitutional amendments barring “economic development” takings and several state supreme court rulings holding that their states’ constitutional “public use” clauses already forbade such takings, even if the Supreme Court’s interpretation of the Fifth Amendment does not. There has now been a good deal of scholarship (including some of my own work) on the state-level reaction against Kelo, and state public use rules generally, and the ways in which they often deal from the extremely lax approach adopted by the US Supreme Court in interpreting the Fifth Amendment.
There is much less work on state constitutional law on “regulatory takings” and related property rights issues—of which the history of “damagings” is a notable example. Fortunately, younger scholars such as Molly Brady and Gerald Dickinson are now beginning to fill that gap. This is particularly important in an era where new infrastructure projects, regulations, and efforts to deal with natural disasters seem likely to generate more cases where state and local governments damage property in ways that fall short of occupation or invasion, and might not be ruled compensable under conventional takings clauses.
This article is not the last word on Damagings Clauses. As the author recognizes, she does not provide a clear standard for expanding the use of these clauses in the future, though she makes a good case that the current highly restrictive approach adopted by most state courts is defective. There is also more work to be done in explaining how and why these clauses were rendered largely toothless over time. But the piece is a major step forward in our understanding of this important and unduly neglected episode in the history of legal battles over property rights. If you have any interest in takings law, property rights, constitutional reform movements, or state constitutional law generally, you should check it out!
Parts of this post have been adapted from a blog post at the Volokh Conspiracy law and politics blog, hosted by Reason.
Jul 8, 2019 Franita Tolson
In Passive Avoidance, Professor Anita Krishnakumar argues that the Roberts Court has retreated in recent years from the aggressive use of the constitutional avoidance canon that dominated much of its early jurisprudence. Instead, the Court now relies on doctrines like the rule of lenity, federalism clear statement rules, and the mischief rule as alternatives to the constitutional avoidance canon, a move that she refers to as “passive avoidance.”
This Article is another tour de force in a very impressive body of work. Professor Krishnakumar exhaustively tracked the Court’s use of the constitutional avoidance canon, discussing its high point from 2006-2012 and subsequent decline thereafter. In a number of cases, the Court construed statutory language very broadly—and sometimes implausibly—to avoid serious constitutional questions raised by the statute. Famously, the Court relied on the constitutional avoidance canon in National Federation of Independent Business v. Sebelius, by construing the individual mandate in the Affordable Care Act as a tax in order to avoid the constitutional issues posed by treating it as an exercise of the commerce power. The Court also invoked the canon in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder, broadly interpreting the bail out provisions of the Voting Rights Act of 1965 to avoid constitutional issues. She argues that these cases, and others, triggered such backlash that the Court ultimately retreated from active use of the constitutional avoidance canon.
Professor Krishnakumar offers a compelling narrative to explain the Court’s retreat from the canon. Commentators had criticized the Court’s use of the canon as “activist,” pushing the Court to find other, less transparent ways of achieving its goals. The turn to these alternative doctrines has been mostly beneficial. They avoid many of the criticisms that have plagued the constitutional avoidance canon, the most pointed of which accuse the Court of using the canon to issue judicial advisory opinions by opining about, but failing to resolve, the constitutionality of the statute being challenged. Neither the clear statement rule nor the lenity doctrine requires any consideration of the statute’s underlying constitutionality; the assumption is that the exercise of federal power is problematic for reasons unrelated to the statute’s constitutionality. Similarly, focusing on the events that motivated the passage of the statute as a reason for embracing or eschewing a particular interpretation, as the Court does with the mischief rule, keeps the statute in line with its original purposes, and thus avoids accusations that the Court is seeking to enlarge its own power by rewriting the statute. In sum, Professor Krishnakumar’s view is that the use of second order doctrines to achieve goals similar to the constitutional avoidance canon has the benefit of advancing a variation of Alexander Bickel’s “passive virtues” approach—one that avoids complex constitutional questions through the use of narrower interpretive techniques.
Like much of her work, this Article tells an important story in judicial decision-making. It also fits with an emerging literature that has sought to explain the stealthy ways in which the Court and individual justices resolve cases beyond issuing opinions. While Professor Krishnakumar ultimately endorses the Court’s use of passive avoidance, she recognizes that its reliance on alternative doctrines—which I call “stealth” canons—could also raise concerns about a lack of transparency in the Court’s decision-making process. In opaquely using stealth canons to avoid constitutional questions, the Court “could be criticized for obscuring [its] true reasons for choosing Y interpretation over X interpretation of a statute, and for silently leaving in place a statute that several Justices believe contain serious constitutional infirmities.” (Pp. 582-83 n.1.) She concludes, however, that the benefits outweigh the costs because these doctrines mitigate the harm from an aggressive use of the constitutional avoidance canon that has caused so many to question the Court’s legitimacy.
Many readers familiar with the Court’s use of the constitutional avoidance canon from 2006 to 2012 are likely to agree with Professor Krishnakumar that the benefits of using stealth canons outweigh the costs. While these doctrines may raise transparency concerns, there was also an alarming lack of transparency with the constitutional avoidance canon that suggested that the Court was motivated by considerations other than a statute’s potential unconstitutionality.
In NAMUDNO, for example, the Court intimated at length that section 5 of the Voting Rights Act of 1965 was unconstitutional and that avoidance of the constitutional question would give Congress an opportunity to fix the statute. Yet when the Court invalidated the coverage formula of section 4(b) of the Act four years later in Shelby County v. Holder, the Court made it difficult to envision that any type of remedy would be appropriate. Much of its opinion was based on a post-racialism that suggested that the Act was outdated because of its federalism costs. Even if Congress had been functional enough to amend sections 4(b) and 5 during the period between NAMUDNO and Shelby, it was likely in a lose-lose situation given the chasm between the Court’s deference to Congress in 2009 and the Court’s 2013 intervention to save “Our Federalism” from a threat that no longer existed.
Thus, the lack of transparency and inconsistent use of the constitutional avoidance canon suggests that the switch to other, less intrusive doctrines should be a welcome one, despite the risk that these alternative doctrines will be used in a stealthy way. By highlighting the rise of these stealth canons, Professor Krishnakumar importantly and critically highlights the interpretive tools to which litigants should give more attention for this next era of judicial decision-making.
Jun 13, 2019 Katie Eyer
Federal Indian law might seem an unlikely paradigm around which to center our understanding of constitutional law. But as Maggie Blackhawk lays out in her excellent new article, Federal Indian Law as Paradigm Within Public Law, the history of Native Nations and indigenous peoples in the United States, and their treatment as constitutional subjects, is equally central to our constitutional history as slavery and Jim Crow. And yet it is far less common for Native history to play a role in our canonical stories and in our understandings of what constitutional law does, or ought to, provide.
Reading Blackhawk’s article is itself a potent reminder of just how little of the legal history of Native Americans’ relationship to the U.S. government is taught in conventional constitutional law classes. Although the cases and practices she describes in many instances have deeply informed our modern constitutional understandings—of the treaty power, the war power, the plenary power doctrine, and others—most will be unfamiliar to those outside of the federal Indian law field. Unlike Dred Scott, Plessy, Brown, and others, no similar canon or anti-canon of federal Indian law cases forms a common vocabulary for our understanding of the Constitution’s basic principles.
As Blackhawk’s article makes clear, our neglect of the federal Indian law paradigm is not only a matter of erasing from public memory our nation’s brutal history of colonialism and the subordination of Native peoples (though it is that too). Rather, as Blackhawk puts it, “Scholars, practitioners, and courts draw…on paradigm cases and model examples in the stories we tell about the Constitution and how constitutional law works. It is through these stories that we convey and discuss questions of constitutional theory and that we build our constitutional canon and anti-canon.” (P. 1804.)
Placing Native history at the center of the canon, alongside slavery and Jim Crow, leads to different results. In Blackhawk’s words “identifying colonialism at the heart of our constitutional law doctrines ought to open a conversation as to whether those doctrines should remain good law or should be discarded alongside Dred Scott and Plessy v. Ferguson as constitutional failures.” (P. 1805.) So too, “[l]essons drawn from understanding the role of colonialism and its tension with constitutional democracy could provide descriptive and normative guidance to a range of general principles within public law—most notably, how to prevent constitutional failure and the abuse of state power.” (P. 1806.)
Though Blackhawk describes a variety of contexts in which this re-centering could be important, she relies on equality law as her central example, and it is generative. As she points out, our canonical vision of minority protection, framed around the paradigm case of slavery and Jim Crow, has long revolved around federal protection and rights, not minority power—and inclusion and integration, not independence. Thus, our modern constitutional paradigm “presume[s] that minorities are best served by rights and national power.” (P. 1846.)
As Blackhawk points out, the inadequacy and contingency of this centralized power-and-rights perspective becomes immediately apparent once Native peoples and Native Nations are placed at the center of our thinking. The violence and efforts at subordination targeted at Native Nations have been predominantly (though certainly not exclusively) effectuated at the hands of federal actors, acting under broadly construed federal powers. So too “rights” have, in Blackhawk’s words, been “feared in Indian Country, rather than sought.” (P. 1859.) Rather than a tool of empowerment, rights, to the extent they have been offered at all, have largely been used to weaken and undermine Native self-governance and self-determination.
In contrast, Blackhawk points to power as the central organizing principle of harm mitigation that emerges from a constitutional paradigm centered on Native Nations. As Blackhawk points out “[w]ithin Indian law, the federal government has used power to mitigate the colonization of Native Nations and the subordination of Native peoples.” (P. 1862.) Understanding this as central, rather than peripheral, to our constitutional project leads to the conclusion that “[t]he empowerment of minorities should not only be celebrated, it should also be recognized as something foundational to American constitutional democracy.” (P. 1863.)
Blackhawk’s insights on this point ought to resonate deeply with those concerned with our constitutional equality law project. Power, and the autonomy and self-determination that come with it, are values that, as Blackhawk points out, are largely absent from our modern conception of constitutional equality law. (Though some, including a number of scholars who Blackhawk discusses, have urged their greater inclusion). And yet they are deeply important to many minority communities. From people of color, to people with disabilities, the working poor, and more, power and autonomy should be a key component of our thinking about how the Constitution ought to address issues of minority subordination and oppression.
Like most attempts at effectuating a fundamental paradigm shift, Blackhawk’s article cannot hope to fully develop all of the nuances of her argument. Among the areas that could offer rich possibilities for future work is an elaboration of how her ideas relate to the paradigm case she seeks to supplement: the experience of African Americans in the United States. For although power and autonomy have not been the constitutional principles through which the harms of slavery and Jim Crow have been mitigated, they have long played a role in Black political thought and Black political movements. Indeed, even today political power and community control are among the central demands of the Movement for Black Lives. Yet modern examples of real power and autonomy being devolved to black or other minority communities are comparatively few, and often have been met with resistance and backlash.
Blackhawk’s article also does not fully address the many genuine conflicts that can arise from devolving power to minorities, especially where communities are heterogeneous. Though she persuasively makes the case that a Native woman, whose community is told it must adhere to federal sex discrimination rights, has been in a meaningful and harmful way divested of power, she does not address how this might play out across other, potentially even more difficult, contexts. In an era in which many conservative Christians feel that they represent a minority perspective, and in which various Christian denominations are riven by internecine battles over doctrine and direction, this issue is surely not merely theoretical. Rather, it highlights the importance of integrating the paradigm on which Blackhawk would have us retrain our attention with the rights-protective paradigm that has emerged from the paradigm of African American exclusion.
Though Blackhawk’s article does not (and could not) fully resolve these dilemmas, it offers important insights into what a path forward might look like. As Blackhawk points out, the path to constitutional harm-mitigation (i.e., power) in the context of Native Nations and Native peoples has not been exclusively, or even primarily, through the courts. Rather, it has been a project in which legislative, and sometimes executive, action has played a vital role—for better or for worse.
To the extent we are going to attempt to operationalize constitutional values of power and autonomy for other minority communities, this insight is surely of key importance. For while the courts may be an important site for developing Blackhawk’s paradigm-shifting insights (and it is enticing to imagine contexts, such as state receivership of minority communities, which might provide a place to start), executive and legislative action at all levels of government will surely play a role. Not only are legislative and executive actors critical, by virtue of their ability to fundamentally obstruct or promote such a project, they are also arguably better equipped to consider the questions of how to address the inevitable conflicts between power and rights, or between different powers or different rights.
Ultimately, Blackhawk’s article is a call for us to remember that “[t]he U.S. Constitution contained more than one compromise and more than one original sin at the Founding.” (P. 1806.) As Blackhawk argues, colonialism, and the subordination of Native Nations and Native peoples, was central to our national project of constitution-making. As such, this history surely deserves a more prominent place in our constitutional canon—and anti-canon. And centering that paradigm, alongside slavery and Jim Crow, can offer us new constitutional perspectives—on rights and power, federalism and sovereignty, and ultimately how our past constitutional mistakes ought to inform our constitutional present.
