Category Archives: Uncategorized
Sep 23, 2015 Pat Gudridge
Gillian Metzger is convinced of “[t]he central importance of supervision.” “Supervision and other systemic features of governmental administration with which it overlaps … are fundamental in shaping how an agency operates and its success in meeting its … responsibilities.” (P. 1840.) Nonetheless “constitutional law stands largely aloft from the reality of administrative governance, with the Supreme Court refusing to subject systemic features of government operations to constitutional scrutiny.” (P. 1841.) This dissonance preoccupies Metzger’s article.
Available lines of thought, we know, lie right at hand. The Article II Take Care Clause jumps out as one beginning. Anti-delegation worries, originating in structural preoccupations, suggest another accessible constitutional skein. Metzger’s observations drawing out these threads make for easy reading. (Pp. 1874-1904.) The problem, she thinks, lies largely with courts and their adjudicative inhibitions. In both administrative and constitutional law, ideas of review, “cases” and “controversies,” parties to disputes, resolution and finality, and so on—all work against thinking through matters of system, supervision, “rightful hierarchy,” and so on. Judges are inclined to start with—are prone to hesitating absent—investigations of individual instances. Although she maps possible occasions for taking up questions of supervision directly, Professor Metzger acknowledges that there’s not much chance of provoking large-scale change in judicial orientations (and maybe shouldn’t be). Her several discussions, here too, are searching and extensive, thoughtful and clear. (P. 1859-70, 1904-09, 1914-18.)
The article is nonetheless not a ninety-page shrug. Law works itself out, of course, in processes other than adjudication. Metzger identifies good reasons for executive officials and legislators to take firmer hold of the duty to supervise. (P. 1927-32.) But it may also be enough constitutionally, her readers are led to understand, if judges working within administrative and constitutional law put to use the idea of the duty to supervise as something like an “aside” (not Metzger’s own word; see the new compilation edited by Jason Potts and Daniel Stout, Theory Aside). Professor Metzger writes with quiet, dry wit:
Administrative law … offers an important means by which courts could require agencies to pay greater attention to their supervisory obligations without assuming responsibility for enforcing those obligations in the first instance. The vehicle would be the standard APA challenge to agency action as arbitrary and capricious…. (P. 1919.)
Appearance and action, she thinks, do not always (and seemingly need not) proceed in parallel in administrative law:
…[A]n administrative law approach to the duty to supervise would require changes in current administrative law doctrines…. Notably, however, courts often appear to respond to presidential involvement in their application of administrative law scrutiny without being open about doing so or offering a justification for their approach. As a result, although acknowledging the duty to supervise might entail changes in stated doctrine with respect to presidential administration, it may not require much change in current administrative-law practice. (P. 1926.)
Even given all this indirection, even if little would change in administrative law in practice, Metzger stresses that “acknowledging” the duty to supervise would be a marked change. “[I]ncorporating a duty to supervise into administrative law could produce a fundamental reorientation of judicial review of agency action. … Rather than targeting specific decisions or actions, judicial review would scrutinize programmatic structures and broader aspects of agency policy and functioning.” (P. 1920.) But this change would be notable mostly from the constitutional perspective.
Failure to articulate administrative law’s constitutional underpinnings leads to a false perception of constitutional law as separate and distinct from other forms of law and of agencies having little role as independent constitutional enforcers. Failure to acknowledge the complicated interplay among courts and agencies with respect to constitutional enforcement also makes it difficult to develop an account of the proper bounds of this relationship. (1912)
It is not just that making explicit the constitutional law duty to supervise would alter the face of administrative law. Our sense of what constitutional law “is” reshapes itself too.
Constitutional law in the modern administrative state does not have hard edges allowing for a clear demarcation between that which is constitutional and that which is not. Rather, constitutional law today is a porous entity. Constitutional requirements mingle with numerous forms of subconstitutional law, often functioning more as background norms than as direct commands. This means that constitutional implementation will centrally involve other government institutions. It also means that courts will inevitably engage in law creation as they seek to enforce constitutional concerns indirectly. (P. 1933.)
Water music! What wonderfully baroque minimalism! But there is also substantial practical fall-out, Professor Metzger suggests, providing a notable headline example:
Precluding prospective and categorical articulation of immigration enforcement policy and priorities is tantamount to insisting that nonenforcement decisions be made by lower-level officials…. Acknowledging a constitutional duty to supervise thus indicates that presidential efforts to direct nonenforcement on a categorical, prospective, and transparent basis can have strong constitutional roots. …[E]xecutive-branch implementation of the duty to supervise seems likely to result in greater and more overt instances of presidential direction. (P. 1929.)
The President as “Great Helmsman” a la Mao? Bolingbroke’s “Patriot King”? Not quite, of course: “Given that a core part of the duty to supervise is insuring legal accountability, such presidential policies must accord with governing statutory requirements or have a basis in the President’s constitutional authority.” (P. 1929.) We glimpse here especially clearly the deep complexity resonating throughout Metzger’s discussion. There is not just administrative law and constitutional law; not just administrative legal form and practice; not just direct and indirect constitutional law; but also an always present duality within constitutional law in substance—the duty to supervise always coexists with, is always in interplay with, other constitutional texts and concerns.
“The Constitutional Duty to Supervise” is—notwithstanding its length and intricacy—a proof of concept exercise. There is much therefore that is left out. For example, administrative law figures only very generally: there is no close look at its own jurisprudential controversies, no sense of its reformations and counter-reformations, no attention to long-running doctrinal perplexities like Chevron. There is not much attention to how, within constitutional law itself, the Fourteenth Amendment—its “due process of law” and “equal protection of the law” formulas—might interact with the duty to supervise in state and local law settings (for example, not much attention to DeShaney or Castle Rock); not much sense of supervision as a key problem with respect to police, prisons, etc.; no sense of how deep history—race, gender, and other profound “asides”—might press hard on ideas of what “right supervision” should be. With respect to the federal scene, moreover, there is not much attention to competing models: OMB insistence on cost-benefit analysis as an ever-present rationality maybe reducing the need for presidential supervision as such (surprisingly little discussion also of Cass Sunstein’s remarkably ambitious, inter-related works and pomps); statutory administrative pluralism as introducing a medium for judicial review grounded in versions of subject-matter jurisdiction, pretty much independent of administrative law per se, permitting apt matching of problems and agencies, again inter alia.
Not criticism—not really. In the end, rather, this: Gillian Metzger has attempted and landed a long jump.
Aug 7, 2015 Charles Shanor
An essay by Heather Gerken and James Dawson entitled Living Under Someone Else’s Law, 36 Democracy Journal 42 (2015) caught my attention several months ago. The topic was horizontal federalism, and the context was “spillovers,” extraterritorial effects that regulations of one state have on other states. Spillovers do not intentionally discriminate against a state’s neighbors or their citizens, do not favor insiders (citizens or businesses), and do not erect protectionist barriers at state lines. But spillovers have consequences, sometimes annoying, sometimes costly, for neighboring states.
Spillover examples include California emissions controls, Colorado marijuana legalization, and red state permissive gun-control regulations. Tighter emissions controls by California raised car prices to buyers in all states as national companies produced cars to comply with California rules. This adversely affected auto buyers elsewhere as surely as industrial pollution affected states downwind of the pollution. Likewise, recreational marijuana legalization increased drug trafficking across state lines, upsetting Colorado’s neighbors. Permissive gun sale laws in red states permit citizens in blue states to cross state lines, buy guns, and tote them home. Same-sex marriage bans in red states led, before the Supreme Court’s Obergefell decision, to concern in blue states: would their same-sex marriages be recognized (given ‘full faith and credit’) in neighboring states? The authors cleverly call this situation a “spillunder,” where under-recognition of one state’s law poses potential problems for its citizens when they are in other states.
In a longer article, The Political Safeguards of Horizontal Federalism, Gerken and co-author Ari Holtzblatt examine the underdeveloped legal literature and doctrinal signposts concerning spillovers and compare this virtual vacuum with the extensive literature concerning vertical federalism. They then suggest an approach to horizontal federalism premised on insights from vertical federalism scholarship.
As the authors put it, “lawyers hate spillovers.” When a state’s regulations affect its neighbors, the lawyerly instinct is to file suit, demand judicial intervention to halt the intrusion, citing the economic and political friction caused by the state whose legal regime affects its neighbors. Resisting this knee-jerk reaction, Gerken and Holtzblatt trumpet spillover benefits: they force productive conversations among political actors who otherwise would only listen to one side of arguments in accord with local constituency wishes. If the “Big Sort” isolates conservatives into red states and liberals into blue states, spillovers of red policies into blue states and the converse force politicians and their constituents to deal with a broader and less homogeneous regional and national political reality. There are benefits in harnessing this friction: efforts to formulate broader workable policies and greater democratic inclusion.
Perhaps, the authors say, political processes rather than lawyers and courts should sort out spillovers, just as politics generally resolves vertical federalism issues. There are also legal limits to federal power to override state law, but they are minor in the broad scheme of American governance. First, the Commerce Clause can’t be used to regulate “noneconomic” matters (Lopez, Morrison and NFIB). But it still affords broad regulatory powers to Congress, especially when coupled with the Necessary and Proper clause. (Wickard, Heart of Atlanta, and Raich). Second, Congress can’t “commandeer” state legislatures or other officials (New York and Printz), but it has plenty of other tools, such as conditional spending, to push states to comply with its policy preferences (Dole) up to the point of coercion (NFIB). Third, suits by private attorneys general have hit some sovereign immunity shoals (Seminole Tribe, Alden, and FMC). But a determined Congress can generally use broad governmental enforcement tools to bend the state to its will. And where federal legislation is valid, it preempts conflicting state regulation, thanks to the Supremacy Clause (Geier and Garamendi).
Contrast horizontal federalism. Does Congress step in whenever one state affects its neighbors? Generally no. If a state discriminates to favor (or disfavor) its own citizens and businesses, the judiciary might step in to manage horizontal conflict using the “dormant commerce clause” doctrine. Explanations range from theoretical (Congress is too busy, states could block remediation in Congress) to practical (enforceable legal rules generally deter most self-serving by states). But dormant commerce doctrine is much less robust for dealing with spillovers: one state’s regulations may impose externalities on neighbors so long as local benefits exceed those costs (Pike) and rarely does the Court’s calculus find a “burden” excessive.
Likewise, there is a bit of due process doctrine regulating spillovers. Where local juries go “whole hog” in imposing punitive damages on companies for conduct outside the state, the Court has found that would prevent other states from deciding “what conduct is permitted or prescribed” in the second state (BMW v. Gore and State Farm v. Campbell).
The problem Gerken and Holtzblatt systematically confront, to my knowledge for the first time, is whether political or legal models will best handle spillovers not systematically governed by federal law. They take on the problem first by showing that almost any state regulation will cause some level of spillovers onto neighbors. These spillovers are all over the board in how much costs they impose—from the trivial to highly significant. Then they argue that spillovers have beneficial effects politically; for example, state pushback operates as a check on the federal government. Likewise, state spillovers force neighboring states to confront each other concerning matters on which their preferred policies are antagonistic. This provides room for dissension and democratic discussion that might not occur if citizens with polarized policy preferences sorted perfectly into red states and blue states. There are some costs from the friction of spillovers, but no such issues today are even remotely close to splitting the country, as slavery did in the 19th century. Rather, they argue, “when citizens of one state must accommodate the preferences of another’s, they are enlisted in the practice of pluralism … A vibrant democracy depends not just on choice but on accommodation, compromise, and engagement … Spillovers force engagement and thereby spur the processes on which our democracy depends.” (Pp. 88-89.) Spillovers help break up enclaves and overcome political inertia. They sometimes lead to a national policy; other times they lead to pluralism and tolerance.
Gerken and Holtzblatt consider arguments opponents might have to their view that spillovers, despite costs, are often best left to political processes. First, they consider sovereignty arguments—that no state should be able to regulate in ways that spill outside its borders. But “silos” of sovereignty bear little relationship to how states interact in the real world. Second, can the courts even deal with spillovers? Courts can end disputes and declare winners, but rarely does victory foster compromise and democratic engagement. Further, Gerken and Holtzblatt argue that both horizontal and vertical conflict push the nation toward compromise: it hoists the “most honorable and least fun [aspect]” of democracy upon the elected, not the appointed.
Finally, the authors look at the institutional methods for safeguarding horizontal federalism. First, Congress can “referee interstate relations” if it will—and it should be encouraged to do so. Second, NGOs, interest groups, and institutions like the ALI have roles to play in mediating such conflict. Third, courts should play a “limited role” in horizontal federalism disputes “when the political process is unlikely to generate a solution.” They suggest that the courts look to Full Faith and Credit doctrine, which requires submission to “hostile policies” of other states “because the practical operation of the federal system … demand[s] it.” (P. 118.)
Democracy, the authors concede, is about self-rule. Yet, as they (rightly) point out, democracy also requires “interaction, accommodation, and compromise” – the salutary values a functioning account of horizontal federalism requires. To properly balance the countervailing principles of self-rule and compromise, the author’s finally ask states to “work it out.”
What I find appealing about this article is that it takes a concept—spillovers—and it work[s] out potential legal and nonlegal approaches to dealing with the concept. It cites the fragmentary scholarship touching on the topic and integrates it into a broader pattern. Then, sensibly, while working through a number of core issues connecting the bits of scholarship, it forges a framework even while calling for more specific scholarly attention to its component parts. As they note: “We are plainly at the beginning of the conversation … [but surely it’s a conversation] worth having.” (P. 120.) Indeed.
Jul 10, 2015 William Baude
Richard M. Re,
Promising the Constitution, 110
Nw. U. L. Rev. (forthcoming, 2016), available at
SSRN.
Many questions about the meaning of the Constitution are disputed. But however we answer those questions, at some point most of us come to a different question: so what? Why do those words on a page have any moral grip on the three-dimensional world of human beings? In one of my favorite new articles of the summer, Promising the Constitution, Professor Richard Re takes on this question and its implications. The answer, he says, is the constitutional oath, which simultaneously commands much less and much more than many have assumed. (Full disclosure: Re is a friend and former classmate.)
Re’s article makes three major contributions. The first is to argue that the oath is what gives the Constitution normative force in our world. We should see the oath not as an empty political ritual, but as a solemn assertion of a promise, with all the moral force that a promise carries. Of course, many philosophers are skeptical about the moral force of promises; but Re surmounts their objections by turning to the democratic context of the oath. While immoral promises and coerced promises might lack moral weight, the constitutional oath today should be seen as neither.
Second, Re argues that the oath’s content has been misunderstood and overextended. Champions of interpretive pluralism sometimes argue that the oath empowers each branch, each officer, or each state to interpret the Constitution for themselves. Champions of judicial supremacy argue instead that the oath binds each office-holder to the Supreme Court’s interpretations. Re argues that the oath simply does not resolve such questions of separation of powers or federalism.
Third, Re argues that the oath binds each office-holder to the public understanding of “this Constitution” at the time of the oath. That formulation, in turn, has important implications. It means that the moral content of the constitutional promise is a positive question. To figure out what officers are obligated to do tomorrow, we must look to how our Constitution is understood today.
That formulation also tells us how officeholders should react to different kinds of constitutional change. The oath to the current Constitution obviously means that one takes for granted any changes that have happened before the taking of the oath. The current Constitution includes various amendments. Oath-takers today necessarily accept those amendments—even if they were once controversial.
But if the duty is focused on the time of the oath, what about subsequent changes? Re argues that the oath to the current Constitution includes the currently lawful rules of constitutional change, such as Article V. (Law professors debate whether there are others.) So a new amendment, or a new Supreme Court judgment, is generally part of the old oath. But there’s a catch: if a change is legally revolutionary, then it’s not part of one’s previous oath. The oath’s relationship to revolution may provide the hidden logic of Reconstruction jurists who narrowly read the Fourteenth Amendment, and of modern Justices who perpetually dissent from certain decisions that were issued over their initial outcry.
This is a lot of important ground to cover. But my enthusiasm for the piece is heightened because of the interpretive question it doesn’t cover: what is the current public understanding of “this Constitution?” Re observes a few elements of consensus, but is largely agnostic on this question. It’s a question that I have attempted to answer elsewhere, albeit briefly, in this essay on the “positive turn,” and more extensively in a forthcoming essay, Is Originalism Our Law? I argue that as a positive matter, our constitutional law today is an inclusive form of originalism. (Steve Sachs makes related arguments, to which I am also indebted, here and here.)
Re’s article demonstrates the stakes of that positive inquiry. If he is right that the oath commits officeholders to today’s Constitution, then we must discern whether today’s Constitution is one that continues to have its original meaning. And if, as I believe, a form of originalism is indeed our law today, then Re shows how originalism can continue to have normative force: not because of the deeds that were done by the dead, but because of the promises that are made by the living.
Jun 15, 2015 Ilya Somin
Lochner v. New York (1905) has long been one of the most widely reviled decisions in Supreme Court history. The Court’s 1905 ruling striking down a New York maximum hours law for bakers under the Due Process Clause of the Fourteenth Amendment has been routinely denounced as callous, unjust, and based on blatantly fallacious legal reasoning. It is one of the leading members of the “anti-canon” of important Supreme Court decisions that almost all right-thinking people believe to be wrong. Thomas Colby and Peter Smith’s important new article argues that the longstanding dominance of this view of Lochner has begun to erode, at least among conservatives.
Colby and Smith provide an excellent account of why this trend began, and how it compares with previous developments in conservative and liberal legal thought. As they emphasize, even when the anti-Lochner consensus was at its height, liberals and conservatives opposed the decision for different reasons. For liberals, it became the leading symbol of an era in which the Supreme Court improperly intervened to shield “laissez-faire” economic policy against government interventions intended to protect workers and the poor. Especially after the New Deal revolution in constitutional law, they drew the lesson that Lochner was wrong because courts should generally stay out of “economic” issues, especially in cases where judicial intervention is sought for the benefit of the wealthy and business interests.
By contrast, most conservatives never objected to judicial protection of economic rights, as such, and many had always thought that labor legislation like that struck down in Lochner does more harm than good. For them, the error of Lochner lay in the fact that it protected an unenumerated right. Worse, it was a “substantive due process” right, which conservatives considered oxymoronic. They also associated substantive due process with the hated socially liberal decisions of the Warren and Burger courts, especially Roe v. Wade. Finally—and, to Colby and Smith, most important—conservative constitutional theorists believed that Lochner was wrong because it could not be squared with originalism, the dominant approach to constitutional interpretation on the right over the last several decades.
Over the last two decades, Colby and Smith explain, several factors have moved right of center constitutional thought away from the anti-Lochner consensus. One, of course, is that conservative and libertarian free market advocates generally disapprove of labor regulations like the ones upheld in Lochner. Free market economists and legal scholars have long argued that maximum hours laws actually harm workers by reducing their income and, in some cases, increasing unemployment. The law at issue in Lochner itself may well have been enacted at the behest of large bakeries and powerful labor unions dominated by native-born workers, for the purpose of stifling competition by smaller bakeries that employed mostly recent immigrants.
But this cannot, by itself, account for the evolution in conservative attitudes towards Lochner. After all, as the authors note, conservatives held similar views on labor regulation thirty years ago, when very few questioned the orthodox view of Lochner.
Colby and Smith instead emphasize changes in originalist constitutional thought over the last two decades. One is the shift from “original intent” originalism to “original meaning.” The former emphasizes the specific intentions of the framers of constitutional provisions, while the latter focuses on the public understanding of the provision in question at the time of enactment—either that of the general public, that of legal experts, or of hypothetical “reasonable” readers. From the standpoint of original meaning more so than original intent, there is extensive evidence that the Fourteenth Amendment was understood at the time as protecting a variety of property rights and economic liberties. Legal historians such as Ryan Williams and David Bernstein have shown that “substantive due process” protections for economic rights were not invented by the Lochner Court, but rather had a long history in American legal thought, including in the period around the time of the enactment of the Fourteenth Amendment. Whether or not “substantive due process” is a sound doctrine, it is not an ahistorical oxymoron, as previous generations of conservative originalists believed.
A second development stressed by Colby and Smith is the renewed interest in the Privileges or Immunities Clause of the Fourteenth Amendment among originalist legal scholars of a variety of ideological persuasions. There is a great deal of historical evidence indicating that the Clause was intended, at least in part, to protect economic liberties and property rights, and that its near-evisceration in the 1873 Slaughterhouse Cases was a serious mistake.
The notion that this Clause protects economic freedoms was not invented by modern conservatives and libertarians. It was forcefully defended in Justice Stephen Field’s famous dissent in Slaughterhouse, which attracted four votes, including that of Chief Justice Salmon P. Chase, one of the architects of the Republican Party “free labor” school of legal thought that heavily influenced the Fourteenth Amendment. But only in recent decades have modern constitutional law scholars begun to focus on this aspect of the Amendment. For conservative originalists who continue to oppose “substantive due process,” the Privileges or Immunities Clause offers a pathway for strengthening protection for economic liberties without relying on the Due Process Clause, and indeed without reconsidering Lochner directly.
Many left of center scholars also hope for a revival of the Privileges or Immunities Clause, though most of them do not want that revival to include substantial protection for economic liberties. The fact that there is such widespread criticism of the Slaughterhouse Cases strengthens the potential attractiveness of the Privileges or Immunities Clause as a vehicle for reviving judicial protection for economic liberties. While left of center jurists might oppose using the Clause for that purpose, on a variety of grounds, they cannot easily dismiss it out of hand, as would likely be the case with attempts at a direct revival of Lochner.
As Colby and Smith recognize, conservatives who wish to restore constitutional protection for economic liberties may well be influenced by their political and ideological support for this cause. In that respect, they are similar to liberals and others for whom ideological and legal commitments are not completely separate. But the authors also emphasize that they do not wish to “denigrate conservatives as unprincipled opportunists who consciously seek to subjugate the law to their political whims. To the contrary, we give credit to conservatives for abstaining from action in the absence of a strong theoretical foundation. . . . When conservative legal theory did not support their politically favored outcomes, conservatives laudably chose mostly to respect their jurisprudential commitments, at least in the case of unenumerated economic rights.” They interestingly contrast this tendency in conservative legal thought with the development of liberal constitutional thought from the 1930s to the 1960s, when liberal judges began to use judicial review to aggressively enforce a variety of “noneconomic” rights, before liberal constitutional theorists had articulated a strong and coherent rationale for breaking with early twentieth-century Progressives’ emphasis on across-the-board judicial deference.
Overall, Colby and Smith’s article is the most complete, thorough, and fair-minded analysis of the recent revival of support for judicial protection of economic liberties. Their careful, balanced approach is particularly commendable in light of he fact that they are not themselves advocates of either originalism or political conservatism.
I do, however, have a few reservations about their analysis. In some places, they posit too great a break between today’s conservative originalism and that of thirty to forty years ago. Colby and Smith suggest that earlier conservative judges and legal theorists were “concerned primarily with limiting judicial power,” while those of today have to a large extent broken with that commitment.
It is unquestionably true that, in the 1980s, conservatives such as Robert Bork, Antonin Scalia, and Attorney General Edwin Meese emphasized the need for “judicial restraint” and deference to the democratic process. But they also simultaneously advocated strong judicial enforcement of the original meaning of the Constitution, including in many cases where doing so required increased judicial intervention, rather than less. As far back as the 1970s, conservative Supreme Court Justice William Rehnquist wrote a series of opinions advocating stronger judicial enforcement of property rights and federalism-based limits on congressional power. Indeed, conservative Supreme Court justices’ partial revival of judicial enforcement of the Takings Clause of the Fifth Amendment since the 1980s in many ways prefigures more recent arguments for a reconsideration of economic liberties.
During the 1970s and 1980s, conservative originalists did not focus much on the tension between their advocacy of judicial deference to the democratic process and their advocacy of enforcement of the original meaning. More recently, originalists have had to confront that potential contradiction. While a few have chosen to subordinate originalism to judicial deference or to argue (increasingly implausibly) that there is no tension between the two, more have chosen originalism over deference when the two seem to conflict.
Another relative omission in Colby and Smith’s account is their downplaying of the fact that many of the leading originalist thinkers of the last twenty years, most notably Georgetown law professor Randy Barnett, have been libertarians rather than conservatives. Many younger right-of-center lawyers and legal scholars have also been influenced by the Institute for Justice’s effective advocacy of judicial protection for economic liberties and property rights. The libertarian public interest firm has litigated many high-profile test cases on these issues, many of them pitting poor and politically weak clients against powerful interest groups, thereby undercutting the traditional perception of judicial review of economic liberties as merely a tool for the rich. These developments have coincided with a general libertarian trend in right of center American thought over the last decade or so.
Relative to most conservatives, libertarians are less wary of the use of judicial review to constrain the legislative and executive branches, including for purposes of protecting a wide range of non-economic freedoms, some of which are anathema to social conservatives. Libertarians are also less likely than conservatives to be haunted by the specter of Roe v. Wade. While many libertarian legal scholars disagree with that decision, few see it as an evil of the same magnitude as it is in the minds of many conservatives. Many libertarians are pro-choice in their political views, and even most of those who are pro-life tend not to assign as much weight to the abortion issues as conservatives often do.
As Colby and Smith recognize, we are still far away from a broad consensus in favor of more than the most minimal judicial protection for economic liberties under the Fourteenth Amendment, even on the political right. When and if such a consensus does emerge among libertarians and conservatives, that may still not be sufficient to ensure robust protection for the rights in question.. History suggests that strong judicial protection for constitutional rights can only be firmly established if it achieves a measure of support in both major parties and on both sides of the political spectrum.
Thus, we are still a long way away from a true Lochner revival. Even if such a revival does happen, it would be far from the end of extensive government regulation of economic transactions. As Colby and Smith note, the Lochner-era Supreme Court upheld far more economic regulations than it struck down, usually upholding laws where the government presented substantial evidence that it was combating a genuine threat to public health and safety.
Colby and Smith’s article is not intended to address the normative debate over judicial protection for economic freedoms. Both sides in that debate have a variety of strong arguments, and we are unlikely to get a definitive resolution anytime soon. But they do provide a valuable account of why a serious debate over this issue has reemerged in the first place.
May 8, 2015 Helen Norton
Genevieve Lakier,
The Invention of Low-Value Speech,
Harv. L. Rev. (forthcoming), available at
SSRN.
Bedrock First Amendment law calls for the Supreme Court to apply strict scrutiny to the government’s content-based regulation of speech. Except when it doesn’t. Over time, the Court has identified several categories of expression as sufficiently “low value” to trigger a First Amendment analysis less suspicious than strict scrutiny, thus enabling greater government regulation of that speech. These categories have included commercial speech, true threats, incitement to imminent illegal action, “fighting words,” obscenity, defamation, fraud, child pornography, and speech that is integral to criminal conduct. This subject, and what we think we know about it, is the focus of Genevieve Lakier’s valuable new article, The Invention of Low-Value Speech. Especially useful and novel for its strong historical look at the long first era of First Amendment law prior to the twentieth century, it is also important as a refutation of the Court’s current approach that purports to rely entirely on historical analysis to identify categories of low-value speech.
Taking a categorical approach to First Amendment protection, of course, requires a methodology for determining which speech belongs in which categories. In its decision in United States v. Stevens, 559 U.S. 460 (2010), the Supreme Court surprised many observers with its insistence that historical tradition alone has driven its determination that a category of expression is of only low First Amendment value. The Stevens Court struck down a federal statute that prohibited the commercial creation, sale, or possession of depictions of animal cruelty. In so doing, the Court rejected as “startling and dangerous” what it characterized as the government’s proposed “free-floating test for First Amendment coverage . . . [based on] an ad hoc balancing of relative social costs and benefits.” To be sure, the Court started by acknowledging that, “[a]s the Government correctly notes, this Court has often described historically unprotected categories of speech as being ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’” The Court went on to assert, however:
But such descriptions are just that – descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor. When we have identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis. . . . [but we have instead] grounded [our] analysis in a previously recognized, long-established category of unprotected speech, and our subsequent decisions have shared this understanding.
Stevens thus made the descriptive clam that the Court has relied only on historical analysis to identify categories of low-value speech (i.e., that it has focused on whether courts have historically treated the contested expression as low-value), rather than on balancing analyses that identify contested expression as “low-value” when its threatened harms outweigh its capacity to further key free speech values.
The Court’s claim has attracted considerable criticism, and Professor Lakier’s is among the most powerful of these critiques. Lakier refutes the Court’s claim as a descriptive matter, engaging in extensive historical research to find that the list of “low-value” speech categories generated by the Court in the twentieth century has no basis in courts’ 18th and 19th-century understandings. She finds that for close to 150 years, courts did not divide speech into high- and low-value categories subject to differing levels of government regulation. Courts from the founding until the early 20th century instead consistently forbade prior restraints of all sorts of speech (including those today characterized by the Court as low-value), while remaining quite tolerant of government’s after-the-fact efforts to punish all sorts of speech—including those today considered by the Court to be of high value—to address the harms inflicted by such speech or to further the government’s asserted interests in morality and order. Lakier’s careful historical analysis by itself is an important contribution to the field, as it examines thoughtfully and in detail the largely unexplored terrain of courts’ actual approach to speech problems in the 18th and 19th centuries.
In addition to her descriptive claim that historical tradition does not actually explain the categories of speech currently identified by the Court as low-value, Lakier makes the normative claim that history should not drive that analysis. She argues that historical analysis not only would both under-protect and over-protect certain categories of speech, but that it also fails to deliver on its purported benefits. More specifically, she offers a thoughtful critique of historical analysis as a poor test of original meaning as well as a poor constraint on judicial discretion.
The Court’s splintered decision in United States v. Alvarez, 132 S. Ct. 2537 (2012), offers a recent example. There, the plurality and the dissent both purported to use historical analysis to reach very different conclusions about whether and when false statements of fact comprise a category of low-value speech. Each of the three opinions in Alvarez suggested that some category of lies is of sufficiently low value such that government should be permitted to prohibit it without satisfying the demands of strict scrutiny. Although both the plurality and dissent undertook to engage in historical inquiry in defining the contours of that category, each defined the relevant historical tradition quite differently. (Justice Breyer’s concurring opinion, in contrast, relied on purpose-based and pragmatic arguments rather than historical analysis to identify another category of regulable lies altogether.) Justice Kennedy’s plurality opinion concluded that only certain harm-causing lies have historically been treated as unprotected by the First Amendment, while Justice Alito’s dissent concluded much more broadly that lies have been historically unprotected apart from any harm they cause. In short, the historical approach to identifying categories of low-value speech is not without its own considerable subjectivity, and thus does not consistently deliver on its promise to limit judicial discretion.
Lakier’s nuanced prescriptions include a welcome refusal to pretend to make hard First Amendment questions easy. She recommends instead that courts more transparently engage in the challenging but important—and likely unavoidable—endeavor of examining whether and when contested speech furthers key First Amendment values in democratic self-governance, enlightenment, and autonomy.
As Lakier observes, “value-judgments in fact pervade First Amendment law. Attempting to hide these judgments under the cloak of history does not make them go away; it merely makes them harder to understand.” Lakier’s valuable work strips away this illusion and offers a much-needed return to reality.
Apr 10, 2015 Jessica Bulman-Pozen
Alison L. LaCroix,
Continuity in Secession: The Case of the Confederate Constitution (forthcoming), available at
SSRN.
Secession has been back in the news of late. Hundreds of thousands of individuals across the country signed petitions seeking permission for their states to leave the United States after President Obama’s reelection; Governor Perry riffed on Texas’s departure from the Union “if Washington continues to thumb their nose at the American people”; and members of the Second Vermont Republic insist the Green Mountain State would be better off alone. Overseas, a bid for Scottish independence from the United Kingdom nearly prevailed last fall.
A curious feature of many contemporary secessionist movements is their claim to represent the real nation-state from which they seek to depart. The paradigmatic secession case involves a self-consciously distinct national group trying to throw off the yoke of the state encompassing it. But many of today’s movements instead embrace the nation-state they would leave behind, insisting they are truer to its founding principles than the current regime. Alison LaCroix’s provocative and illuminating essay, Continuity in Secession: The Case of the Confederate Constitution, not only sheds light on the most important secessionist movement in American history, but also offers new purchase on this feature of contemporary law and politics.
LaCroix’s account of Confederate constitutionalism is valuable in its own right. In a challenge to the prevailing understanding of the Confederacy as a bastion of states’ rights, she first builds on recent scholarship exploring the substantial similarity of the United States Constitution and the Confederate Constitution, including with respect to centralization. The Confederate Constitution envisioned a strong Confederate Congress empowered by a Commerce Clause, Necessary and Proper Clause, and Supremacy Clause. There were, to be sure, state-sovereignty-enhancing changes in the document, including the preamble’s nod to compact theory, limits on the central government’s taxing power, and a restriction on appropriations for internal improvements (perhaps a strange emphasis for twenty-first century readers, but one of the critical questions of nineteenth-century federalism). Overall, however, it is difficult to place the U.S. Constitution of 1861 alongside the Confederate Constitution of 1861 and not wonder, as David Currie once did, whether “Southern statesmen had no objection to a strong central government after all [but] only wanted to run it themselves.” Indeed, in making theirs an expressly pro-slavery constitution, Confederate drafters centralized authority over slavery to a much greater degree than the U.S. Constitution had.
Still more interesting than LaCroix’s discussion of the Confederate and U.S. Constitutions is her account of Confederate constitutional interpretation. Confederate leaders not only copied provisions from the founding document of the country they sought to leave, but also interpreted their Constitution as a seamless continuation of the U.S. Constitution. They understood themselves to have inherited modes of interpretation, and particular constitutional interpretations, from the United States and cast their project as constitutionally preservative and—insofar as it differed from the extant text—redemptive of the founders’ Constitution. “The Confederate mode of constitutionalism,” LaCroix writes, was “consciously intertemporal and inter-regime.”
An especially intriguing example of such inter-regime constitutionalism concerns the interpretation of the Confederacy’s Recess Appointments Clause. Did the “vacancies” it referred to have to come into existence during a recess (a question the Supreme Court answered in the negative just last Term with respect to the U.S. Constitution)? Reasoning that the text of the Clause, a near replica of the U.S. Constitution’s Recess Appointments Clause, was best read to apply only to those vacancies that occurred during a recess, Confederate Attorney General Watts nonetheless adopted the contrary interpretation because of U.S. government practice. The construction of the text by U.S. Attorneys General as extending to vacancies that arose before as well as during a recess had, Watts insisted, become “a part of our Constitution” as well.
LaCroix explores the Confederacy as a case study of constitutionalism in what she has called the “long founding moment.” Her essay also might help constitutional lawyers think more richly about the secession talk that surrounds us today and the ways in which federalism both elicits and tames secessionist impulses. Just as Southern leaders argued that the Confederacy represented the original U.S. Constitution and the true principles of the American Revolution, contemporary secession movements frequently frame their claims in terms of vindication: instead of emphasizing their inherent difference from the nation-state they seek to leave, they argue that they are truer to its foundational principles than the current regime. This, too, is a form of continuity in secession.
Cite as: Jessica Bulman-Pozen,
Secession, Then and Now, JOTWELL
(April 10, 2015) (reviewing Alison L. LaCroix,
Continuity in Secession: The Case of the Confederate Constitution (forthcoming), available at SSRN),
https://conlaw.jotwell.com/secession-then-and-now/.
