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Imperfectionist Constitutional Theory

Sep 19, 2024 Evan BernickAdd a Comment

Joel Alicea wants to make the world a better place with constitutional theory and thinks that you should, too. More specifically: In choosing how to interpret a constitution, you ought to consult moral views which you believe to be correct, while making room for widespread social practices which aren’t entirely consistent with those views. It’s a testament to Alicea’s intellect, prudence, and rhetoric that readers are likely to be persuaded. His paper, Constitutional Theory and the Problem of Disagreement, feels less like an argument than a friendly conversation from which truth gradually but inexorably emerges.

Call to mind Raphael’s The School of Athens, depicting Aristotle and Plato in conversation. Plato gestures up, Aristotle gestures down. Both philosophers are perfectionists who believe that politics should be organized around an objective account of human flourishing. But one has his head in the realm of Forms and the other takes a more grounded approach. Alicea follows Aristotle.

In Aristotle’s usage, a “constitution” (politeia) was the form of a political regime. The idea of a constitution as normatively weighty higher law developed fitfully over several centuries. Among the contributors to that development was Roman statesman, lawyer, and republican martyr Marcus Tullius Cicero. Alicea thinks that Cicero grasped enduring insights that elude most normative constitutional theorists today.

Alicea describes two dominant approaches to normative constitutional theory. The first is “ideal constitutional theory,” long associated with Ronald Dworkin and his liberal epigones. Here it is exemplified by the anti-liberal common-good constitutionalism of Alicea’s sparring partner Adrian Vermeule. Ideal theorists like Vermeule “construct[] constitutional theories on the basis of controversial moral truth claims[,]” and they’re right to do so. But they err by “plac[ing] little … weight on the practical consideration of whether their ideal theories are compatible with our pluralistic social practices.” The other dominant approach to constitutional theory is “practice-based theory.” Exemplified by living constitutionalist David Strauss and originalist Will Baude, practice-based theory is grounded in “social practices that are broadly shared.” Practice theorists are right to think that constitutional theorist must accommodate morally nonideal social practices. But another David was right in contending that you can’t derive an normative “ought” from a descriptive “is.”

Alicea’s Ciceronian contention is that normative constitutional theory ought to be informed by controversial moral truths and accommodate nonideal social practices. Alicea argues that there’s no coherent way to do normative constitutional theory without believing in some moral truths. Indeed, practice theorists don’t really refuse to get normative. Strauss claims that common-law constitutionalism strikes the right balance between the (normative) values of authoritatively settling questions and settling them in ways that people think make sense. Baude maintains that original-law originalism helps officials discharge their moral obligations to keep their constitutional promises. But Alicea contends that practice theorists don’t adequately justify their approaches because of their “desire to avoid relying on moral frameworks.”

Like Vermeule, Alicea is committed to identifying the morally best constitutional theory. He doubts, however, that any constitutional theory which disregards practice will be morally best. We can think of his own approach as imperfectionist constitutional theory. Alicea seeks as much moral perfection as is possible in a morally imperfect world, and that means accommodating morally imperfect institutions.

Why? Because imperfect people are emotionally attached to their imperfect institutions. Alicea draws upon Edmund Burke’s account of the role of “prejudice”—understood as stable emotional attachment—in sustaining existing practices and resisting efforts to undo them. Owing to prejudice, a seemingly rational intervention in a less-than-perfectly-rational social order may generate worse moral consequences than the disease.

Readers might be tempted to raise a series of normative questions about how much deference Alicea thinks nonideal practices ought to be given. But Alicea’s article isn’t an argument for Burkean conservatism. If you’re sold that practice should carry some normative weight in constitutional theory, you’ve bought what he’s selling. He sold me. Indeed, the only part of Alicea’s paper that I’m not sure I’m sold on is one which is expressly put forward as a “sketch.”

Alicea sketches a distinction between constitutional theory and constitutional design. He conceptualizes constitutional design as a means of addressing the problem of widespread disagreement about controversial moral claims—what John Rawls called “the fact of reasonable pluralism.” Alicea describes constitutional design as “the practical task of constructing a governmental system suited to a particular people with a particular history and set of social practices.” Like constitutional theory, then, constitutional design is supposed to be sensitive to nonideal practice.

So constitutional design has normative content as well as descriptive content. Constitutional design doesn’t necessarily take place through morally ideal processes or produce ideal positive law. But not every process for creating higher positive law will qualify as constitutional design. A military invasion followed by the imposition of positive law that is designed to extract resources from a subjugated population certainly wouldn’t qualify.

Imagine, however, that existing governments send delegates to a convention with the charge of amending the terms of an existing confederacy. Many of the delegates are economic elites and represent governments that enslave large proportions of their populations. A supermajority of the delegates decide to scrap the confederation in favor of an entirely new plan of government that subordinates the existing governments to a new national one, systematically favors enslavers, and contains multiple provisions that are designed to further elite economic interests.

The latter paragraph is, of course, a tendentious account of the Philadelphia Convention which Alicea describes as a “paradigm case” of constitutional design. This account may be wrong (or at least overstated). Still, it’s plausible enough to raise the possibility that Alicea’s concept of constitutional design may be less accommodating of nonideal practice than he thinks. Few entities which we generally refer to as constitutions may be the products of Alicean constitutional design. How should we think about the rest?

But suppose that the Philadelphia Convention qualifies as constitutional design. One of the longest-standing objections to the U.S. Constitution is that it’s too difficult to formally change and thus enables the dead to rule the living. Alicea doesn’t leave much space for legitimate informal constitutional change. Indeed, Alicea discusses constitutional change only when criticizing constitutional theories which permit “significant changes to our constitutional system…through constitutional adjudication.”

The U.S. constitutional order has changed without formal amendment—and not just through constitutional adjudication. Thus, if we focus solely on the framing and ratification of the Reconstruction Amendments, we might be able to see something that looks like constitutional design. But those formal changes were only possible because the constitutional order had already been materially transformed. Transformative acts included insurgency against enslavers following the enactment of the Fugitive Slave Act of 1850; mass, biracial mass politics that elevated an antislavery party to federal power; and a general strike of forced laborers who left plantations for Union lines.

We ought to acknowledge and celebrate empowering constitutionalism that has restructured our politeia to enable more people to lead flourishing lives—even if it doesn’t come via Article V. We ought to set it in opposition to a dominating constitutionalism that is calculated to give some people arbitrary power over others, regardless where it comes from. In her invaluable analysis of what she terms our constitutionalism of force, Farah Peterson has observed that “[t]he Ku Klux Klan’s campaign of terror defined the scope of the Reconstruction Amendments more than its framers’ intentions did, a scope formalized after the fact in Plessy v. Ferguson.” Recognizing, condemning, and resisting—forcefully if necessary—efforts to transform constitutions for the worse is no less morally important than designing them well in the first place.

You can only do so much in one paper, and Constitutional Theory and the Problem of Disagreement is a remarkable achievement. Still, there’s more to American constitutionalism than Alicea seems to capture in his theory-design framework. There is the constituent power of the popular multitudo, which courses through, sustains, and can transform any constitution worth having. Every person who lives within a constitutional order should be able to participate in public institutions which are responsive to their judgments, desires, and demands, and which increase their power over the conditions of their lives. If they don’t exist, we should constitute them—and recognize that our constitution has changed as a consequence. The Platonists among us might not consider such constitutionalism ideal. But as Alicea reminds us, we don’t live in the realm of Forms. We are at our best when we strive for perfection with our feet on the ground. b

The War on Drugs as a Constitutional Failure

Aug 8, 2024 Ilya Somin3 comments

If one of the purposes of constitutional law is to protect liberty against abuses of government power, the War on Drugs must be regarded as one of America’s greatest constitutional failures. Over the last century, and especially since its expansion beginning with the Controlled Substances Act of 1968, the War on Drugs has led to thousands of needless deaths, the imprisonment of hundreds of thousands of people, and severe violations of civil liberties—all without doing much to curb the social problems of drug abuse and addiction. With rare exceptions, constitutional law has done little to curb these great evils.

In The Constitution of the War on Drugs, David Pozen gives us the most through and insightful overview of this failure to date. As he demonstrates, there were a number of plausible constitutional arguments for curbing the War on Drugs that—if accepted by the courts—might have significantly limited at least the most severe abuses. But, for the most part, they were rejected. He also offers useful suggestions for future strategy by drug law reformers.

Pozen’s book is an impressive achievement, and there are many valuable lessons in it for both constitutional law scholars and those interested in the War on Drugs and criminal justice. But I do have some reservations about both his historical and doctrinal analysis, and his normative prescriptions.

As Pozen ably documents, the constitutional stage for the modern War on Drugs was set by two major developments of the Progressive and New Deal eras. The first was an expansion in the understanding of state “police power.” Previously, many paternalistic regulations were likely to be struck down under the Due Process Clause of the Fourteenth Amendment or its state equivalents. The rise of anti-gambling and alcohol prohibition movements helped change that, leading courts to give state governments more leeway. This undermined potential individual-rights challenges to drug prohibition.

The second big shift was the vast expansion of federal regulatory power under the Commerce Clause, with decisions like Wickard v. Filburn (1942), giving the government the power to regulate almost any seemingly commercial activity, no matter how local. This undermined previous constraints on federal power that restricted Congress’ authority to pass laws that forbade the mere possession or in-state distribution of goods and services. Recall that the adoption of nationwide alcohol prohibition required the enactment of a constitutional amendment (later repealed). After the New Deal revolution, no such constitutional amendment was (at least according to the Supreme Court) needed to institute sweeping federal drug prohibition.

While these early twentieth century developments opened the door to drug prohibition, Pozen explains that some jurisprudential trends since the 1960s made constitutional challenges to the War on Drugs potentially feasible.

Beginning with Griswold v. Connecticut (1965), which struck down a state law banning distribution of contraceptives to married couples, the Supreme Court issued a series of decisions protecting various personal liberties under the Due Process Clause of the Fourteenth Amendment, particularly those relating to reproduction and bodily autonomy. This opened up the possibility that the right to take illegal drugs might be similarly protected.

Later, a more conservative Supreme Court once again began to enforce limits on federal Commerce Clause authority, starting with United States v. Lopez (1995). This created hope that at least some types of federal drug prohibition might be invalidated as beyond the scope of congressional power.

Sadly, neither approach had much success. With the exception of a few notable state supreme court rulings, courts largely rejected the idea that constitutional rights of bodily autonomy extended to the use of illicit drugs. On the federalism front, in Gonzales v. Raich (2005), a 6-3 Supreme Court ruled that Congress’ power to regulate interstate commerce was broad enough to encompass even a ban on the possession of medical marijuana that had never crossed state lines, and never been sold in any market within a state.

Pozen also goes over other several other types of constitutional challenges to the War on Drugs, including arguments that it violates freedom of speech (because drug users often partake for the purpose of communicating messages or changing their states of mind), freedom of religion (some illegal drugs are used for religious purposes), and that the severe punishments inflicted on some people convicted of drug crimes violate the Eighth Amendment. In each case, the challenges either failed or only succeeded in a very narrow range of circumstances that had little effect.

As Pozen emphasizes, both liberal and conservative jurists played a role in the defeat of constitutional challenges to the War on Drugs. Neither come off well in his book.

Like many other scholars, Pozen also highlights the role of racism in the growth of the War on Drugs (Ch. 3). Many prohibitionist policies historically targeted drugs associated with blacks and Hispanics. But he also rightly cautions against overestimating this factor. As he points out, the expansion of the War on Drugs from the 1960s to the late 1980s was actually supported by some key black political leaders and members of the black community, on the theory that stronger enforcement might help protect minorities from the perils of gangs and drug addiction. Prominent black members of Congress even initially backed the notorious “crack-cocaine” disparity (under which mostly black crack dealers and distributors were punished far more severely than mostly white purveyors of cocaine), because crack was seen as a menace to inner-city black communities. These circumstances—combined with the facially neutral nature of the drug laws themselves—made it difficult to challenge drug laws on the theory that they unconstitutionally discriminate based on race and ethnicity.

Pozen’s otherwise thorough account does unduly neglect one important aspect of the story: the fact that the most severe drug war penalties are usually reserved not for people guilty of mere use or possession of drugs, but for those who produce, sell, and distribute them. Since the New Deal era, left-liberal jurists—and even many conservatives—have been wary of strong judicial review of “economic” regulations. This was at the root of both the New Deal Commerce Clause revolution (breaking down federalism restrictions to congressional power) and the Supreme Court’s rejection of judicial protection for most economic liberties and property rights.

Seriously curbing the War on Drugs would have required courts to overcome this allergy to scrutinizing “economic” regulation. Progressives who (rightly) seek stronger judicial scrutiny of the War on Drugs will need to overcome at least some of their scruples regarding judicial review of economic transactions.

To be sure, judicial protection for some supposedly noneconomic personal liberties has led to invalidation of laws that restrict related commercial activity. For example, Griswold invalidated a law that restricted the sale and distribution of contraceptives. But, in general, even constitutional rights that get strong judicial protection in other respects often stop short when it comes to regulation of commercial transactions. For example, Lawrence v. Texas (2003) struck down laws banning same-sex sexual relations; but its respect for personal sexual autonomy stopped short of invalidating laws banning prostitution. Stanley v. Georgia (1969) protected the right to use and possess pornography in the home but did not strike down laws banning the sale and distribution of pornography.

As Pozen notes, there is a substantial originalist basis for much broader protection for bodily autonomy under the Due Process and Privileges or Immunities Clauses of the Fourteenth Amendment. But a right to bodily autonomy broad enough to invalidate, or at least significantly curtail, laws banning the sale and distribution of currently illegal drugs would also lead to at least partial invalidation of much other paternalistic “economic” legislation. For example, current law bans organ markets, thereby restricting the autonomy of potential organ donors, and consigning thousands of people to a premature death, due to kidney shortages. Significantly curbing the War on Drugs by expanding judicial protection for the right to bodily autonomy would require breaking down the aversion to judicial review of “economic” issues.

I think it should be done! But, interestingly, Pozen himself seems ambivalent. In the book, he decries growing judicial protection for commercial advertising of legal drugs. Similarly, one of the few areas where there has been constitutional progress against the War on Drugs in recent years has been in the area of asset forfeitures, where the Supreme Court has begun to limit law enforcement power to seize property supposedly used in drug crimes. Rather than praising this development, Pozen derides it as “commodity fetishism” under which “[t]he owner’s property receives more protection than the owner himself.” (P. 112.)

This position is problematic. Asset forfeitures cause great harm to property owners—particularly poor and minority owners—allowing the government to seize cars and other valuable assets with little due process. The Court’s apparent willingness to significantly curb these practices—signaled in a recent decision issued after Pozen’s book went to press—should be applauded. And it makes sense for the Court to use the Eighth Amendment more aggressively in forfeiture cases. The Amendment specifically bans “excessive” fines, while other types of punishments are forbidden only if “cruel and unusual.”

Another issue Pozen likely should have addressed is the way the War on Drugs has weakened Fourth Amendment protection against “unreasonable” searches and seizures. It often seems as if there is one Fourth Amendment for drug cases, and another (less deferential one) for everything else.

Looking forward, Pozen is relatively pessimistic about future constitutional challenges to drug laws, though he still urges them to continue. He also advocates using constitutional arguments to attack drug prohibition in the court of public opinion and the legislative arena.

Pozen is somewhat overly pessimistic about the potential for federalism-based challenges. Three of the five conservative justices then on the Court dissented in Gonzales v. Raich, mentioned earlier. Justice Clarence Thomas, who wrote a forceful dissent in Raich, has more recently signaled interest in reversing that case. It’s possible there might now be a majority on the Court for doing so. The shifting ideological valence of constitutional federalism may lead one or more liberal justices to support that position, as well. One can potentially imagine a Supreme Court decision striking down laws banning possession and at least some types of in-state distribution of drugs. While that would not end the War on Drugs, by any means, it would give more liberal states greater room for experimentation.

Other types of constitutional challenges to drug laws have a more difficult path to success, if any. I am skeptical that free speech and freedom of religion challenges can ever lead to more than marginal progress, or that they deserve to do so. The same goes for Eighth Amendment arguments.

On the other hand, bodily autonomy theories grounded in originalist arguments might have more of a chance, albeit it will still be very difficult. The Supreme Court’s repudiation of abortion rights in Dobbs need not necessarily preclude such progress, as the Court repeatedly emphasized that abortion is a special case, given the argument that laws restricting it protect innocent life (that of the fetus). Drug prohibition, by contrast, actually threatens the lives of innocents, as the carnage of the War on Drugs shows. However, any major progress would depend on judicial willingness to review at least some “economic” regulations more aggressively.

Historically, successful constitutional reform movements have relied on a combination of litigation and political action. That was true of the Civil Rights Movement, the feminist movement, advocates of same-sex marriage, and others. Opponents of the War on Drugs would do well to learn from this history, as well as that of past efforts to impose constitutional constraints on drug prohibition. Pozen’s book is an invaluable tool for understanding that history, and hopefully creating a better future.

One or Many More or Less

Jul 9, 2024 Pat GudridgeAdd a Comment

Neither fish nor fowl? Canons of statutory interpretation seem to exist in a liminal space. They react to statutory language, for example, without obviously fitting “inside” any singled-out statute particular authorization. Maybe canons are expressions of judicial statecraft—ad hoc implementations of adjudicative norms, rather than primary legal instruments. We still remember Brandeis and Frankfurter and Bickel, don’t we? Even so, we ought to want to know where canons come from.

Anyone aware of the well-established textualist turn in statutory and constitutional interpretation these days likely recognizes that textualisms and canons don’t always mix well. The controversy lies mainly with substantive canons. These are treated as somehow associated with the Constitution, not simply investigatory abbreviations or cues for the reader of the statute.

Well-put analyses are readily at hand. Professors Eidelson and Stephenson call attention to two writers in particular. John Manning wrote extensively on these questions, beginning around the turn of the century and running through fifteen prolific years, until he enlisted or was drafted into administrative service. His studies were and are clear, thoughtful, and well-elaborated: skeptical of quick conclusions, attentive to the virtues of close readings of both statutes and constitutional passages, and ready to work through possible tensions and reconciliations. Manning’s writing is very easy to applaud. Eidelson and Stephenson also focus heavily on a lengthy, well-done article published by then-Professor Amy Coney Barrett in 2010.

Acting Provost Manning and Justice Barrett, as they now are, readily acknowledge the tensions that textualism and substantive canon-mongering generate if pushed close together. That’s why Manning often endorses detailed scrutiny of the canons, an approach that (he expects) should result in greater awareness of the intricacy of this relationship. Statutory and constitutional words, for Manning, both require an approach that stresses tense and detailed formulations and therefore may not yield easy interpretive allegiances. He rejects abstract constitutional proclamations and the hidden work they entail.

Way back in 2010, not-yet-Justice Barrett was not especially concerned by frequent judicial invocations of “equity of the statute” and the like, however plainly such invocations depart from modern textualism. (Manning, by contrast, had already voiced criticisms.) Barrett also thought that attention to constitutional intimations, suppositions, or abstractions did not disserve statutory “fidelity.” “Faithful allegiance” was an overall judicial duty.

Eidelson and Stephenson see things differently. They seem to want to confront statutory readers like Barrett with the brute fact of the conceptual incongruity between textualism as it is understood today and the substantive canons. Merely “acknowledging” that incongruity is not enough. They want to confront textualists with a hard, even ruthless choice between, as it were, full-fledged cultural revolution or nothing. Textualism is either pure and substantive-canon-free, or it is workable, stumbling along with the existing substantive canons in tow—but not true textualism.

This is all very bracing.

Canons of construction are—at least sometimes—immediately constitutional in origin, and therefore straightforwardly preemptive. We know that Article IV of the 1787 United States Constitution prescribed several simplifications, easily read as already-in-place constitutional canons of construction. Simple tests address the status across states of legally “mobile” legal documents. The same is true of judgments, arrest warrants served across states (extradition), and claims to standard legal privileges and immunities open to cross-state travelers. Enslavements established in one state hold true in all without close scrutiny. In Prigg v. Pennsylvania, Joseph Story emphatically decreed that all states, whatever their own policies, were constitutionally obliged without question to assist the return of fugitive slaves. This mandate, Story declared, was an existentially fundamental constitutional premise.

Did the Fourteenth Amendment turn Prigg around? Was there now, as of 1868, a constitutional premise replacing the commitment to slavery’s success? Did it reside, perhaps, in the first sentence of Section One and its promise of equal citizenship? Did the Fourteenth Amendment create other canon-like rules for constitutional readers—and make clear that they could be found elsewhere in the Bill of Rights besides? “One person, one vote,” for example, followed from Section One’s promise, as Earl Warren intimated in Reynolds v. Sims. We might take a similar view of the “equal citizenship” construction that was treated as given in Ex parte Endo. Maybe Miranda warnings, at least in Warren’s initial account, were one step removed, but still sparked by the Constitution. And how about the tort reform included in Sullivan? We might recall Henry Monaghan’s virtuosity in naming and elaborating “constitutional common law.” Reworking his insight slightly, we might see constitutional common law not as a general phenomenon itself, but as the artifact of particular constitutional commitments and circumstances. (Sullivan may be one such artifact.) On this view, we can add to “the equity of the statute” the concept of “equities of the Constitution.”

Professors Eidelson and Stephenson seem to suppose that in the cases that interest them, a particular statute stands up front, serving as the primary focus for the legal reader. Other legal instruments are more or less proximate hazards, unfortunate or unwelcome intruders who simply complicate the job of interpreting the primary statutory text. Why make this assumption? Manning, by contrast, treats separation of powers and federalism preoccupations as relevant raw materials too, even if their presence introduces inescapable complexity to the statutory reader’s task. Even before she took the judicial bench, Barrett wrote as though she were already thinking from within a more adjudicative perspective, or at least one version of such a perspective—one that is judiciously tolerant of the inevitability of ad hoc accommodations in judicial opinions. Perhaps the difference between Eidelson and Stephenson and writers like Manning and Barrett is one of forum-setting. Maybe academic writing, at least, is not the right place for such catholicity. Jurisprudential nods and winks are all very well for judges. But academic apologists for and theorists of textualism have no such excuse. They must confront the tension between textualism and the substantive canons head-on.

A Real Useful Reminder

Jun 19, 2024 Leonid SirotaAdd a Comment

Chief Justice John Roberts (in)famously parodied the gap between the interests of judges and practising lawyers and those of academics by suggesting that the latter were unaccountably preoccupied by “the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria.” One law professor even jokingly took him up on the suggestion. But the real trouble, comparative constitutional scholar Aileen Kavanagh might say, is that constitutional law scholars would not even be interested in 18th-century Bulgaria. Categorical imperatives, sure; the people for whom they are to serve as universal laws, not so much.

Kavanagh wants to change that: she wants us “to ‘keep it real’ in constitutional theory.” Too much constitutional scholarship, she argues, is inattentive to the real world, to the flesh-and-blood individuals who inhabit it, and above all to the institutions that govern it. It busies itself with propounding normative theories derived, at best, from highly stylized models of reality, and disdains “mere” description of how things actually work. That’s not good enough, Kavanagh argues. Because “[t]he normative depends on the descriptive to a large degree…, constitutional theorists of all stripes would benefit from submitting their theories to a rigorous reality-check.” This is, it may be worth emphasizing, a concern with and an argument about scholarship, not adjudication. At most, as is noted below, more reality-based academic work may prove more useful to the courts than its more abstract counterpart.

Kavanagh’s examples of how unreal the most seminal scholarship, and the debates to which it gives rise, can be come from the abundant literature on the legitimacy of judicial review of legislation. Both Ronald Dworkin’s embrace of judicial review and Jeremy Waldron’s rejection of it invoke deliberately idealized representations of institutions they extol, and distinctly unfriendly, if not outright crude, depictions of the ones they condemn. The one “has very little to say about doctrinal constraints, constitutional remedies, and the limits of judicial expertise on polycentric questions.” In the other, “the dirty business of political bargaining and policy negotiation are airbrushed out [of] the picture.” Similarly, the “countermajoritarian difficulty” literature, beginning with Alexander Bickel’s work, neglects the comparative rarity of judicial review, let alone of cases where statutes are in fact struck down, when viewed against the overall volume of legislative output.

But these are, indeed, only examples of a much broader trend. One might adduce others, big and small. Picking up, first, on Kavanagh’s theme, one might observe that the literature on the legitimacy of judicial review is (almost?) entirely focused on rights-based questions, and neglects judicial review that serves (or fails) to enforce separation of powers rules or federal division of powers. Somewhat further afield, one could point out almost ritualistic denials that anything like originalism is ever practiced by courts outside the United States and perhaps Australia. Such denials neglect the complexities of the jurisprudence in Canada, the supposed home of living constitutionalism, and elsewhere. Conversely, one could also point out—and Adam Samaha has pointed out—that the ostensibly stark differences between originalism and its competitors often matter less than one might suppose. And these too are only examples drawn from my own pet areas of interest.

As Kavanagh emphasizes, attention to facts will allow us to have a richer and more accurate understanding of constitutional law. She elaborates on the complexity of the relationship between legislatures and courts, which is sometimes conflictual and sometimes interdependent. That relationship is the subject of her recent book The Collaborative Constitution. But even if one’s ultimate aim is resolutely normative—and Kavanagh does not deny the value of normative claims in constitutional law—it will be better served by paying close attention to facts. As Kavanagh sensibly notes, “Recommendations to judges or legislators about what they should do, must be grounded in an appreciation of what they can and cannot do.” Otherwise, they are pointless.

A further benefit of realism, incidental but not unimportant, may be to lower the temperature of some of the most overheated debates in constitutional theory. A fuller understanding of constitutional facts may show that the stakes in these debates are not quite as high as participants make them out to be. As Kavanagh observes in relation to the debates about the legitimacy of judicial review, the point is not to deny “inevitable tension, friction, competition and conflict,” but rather to avoid strictly “oppositional framing” and “Manichean narrative.” Realist scholars will find it easier to learn from one another, as well as from the facts and rules they engage with.

What, then, are the missing facts and rules with which such scholars ought to engage? Kavanagh is most interested in “the behaviour of constitutional actors,” their “deeds and decisions, their actions and words,” and ultimately “the values, principles, norms and ideals which motivate their behaviour.” But I do not read her as saying that the institutional perspective she adopts in her own work is the only right way to “keep it real.” One program for constitutional realism, which Kavanagh does not mention, but to which those disposed to heed her appeal would do well to pay attention, is the approach described by one of its founders as “politics without romance”—that is, public choice. Nor need one confine one’s observations to the persons or institutions most readily described as “constitutional actors.” Not least, a realistic constitutional theory needs to pay attention to voters, in all their rational ignorance and equally rational irrationality.

Of course, there are some potential pitfalls in a move towards “keeping it real in constitutional theory.” They’re worth highlighting not by way of criticism of Kavanagh’s project but, on the contrary, because they might prevent us from realizing its full value.

One such pitfall would be reminiscent of certain unsavory strands of international relations thought, where “realism” is little more than a euphemism for an abdication in the face of power. One sees this sort of thinking in administrative law scholarship that makes acceptance of the legitimacy of the administrative state the measure of a theory’s plausibility. Kavanagh anticipates this concern and points out that expecting constitutional theory to “fit” reality “neither precludes critique nor undercuts prescription.” The constraint it imposes is more modest and salutary, being simply that “our theoretical arguments are not a matter of pure creativity and utopian imagining.”

Conversely, it would be a mistake to use realism as a justification for falling into the conspiracism about how the world “really” works that is, as Joseph Heath argues in a recent essay, manifested in some forms of “critical theory.” It is, he argues, a “very modern sort of witch-hunt, in which our institutions are castigated for producing various evils, but where no one can point to any clear examples of how they are doing it.” Despite the pretence of a clear-eyed or even scientific understanding of the world, such thinking is, in reality, the product of precisely the kind a priori normative theorizing Kavanagh cautions against.

Last but not least, we need to be aware of the limits and trade-offs that “keeping it real in constitutional theory” involves. Kavanagh points to this issue in a discussion of comparative constitutional law, where calls “to propose and prescribe ambitious normative theories with global reach” can only be met at the expense of fine-grained attention to the detail of how individual constitutions function. Thus, more realistic scholarship may have to be, in a sense, less ambitious, though it would surely be more accurate to say that its ambitions would lie elsewhere instead. And again, the example given by Kavanagh is not the only one. Even when working on a single jurisdiction, it is a tall order to be attuned to institutional realities, public choice considerations, and whatever other factors “keeping it real” might involve. We need, unfortunately, to also be realistic about what we can hope to accomplish.

But the difficulty of a task and the inevitable limitations on its achievement are not good reasons to shirk it altogether. Kavanagh makes a compelling case for more grounded, more subtle, and richer constitutional theorizing. It will be hard and it will be imperfect. But it will be worthwhile.

Questioning the foundation of Dobbs

May 27, 2024 Rebecca Zietlow1 comment

The United States Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, rejecting a constitutional right to choose an abortion, has laid bare the landscape of the inequality in reproductive rights and health care in this country. In Fetal Life Hypocrises, Jill Wieber Lens questions the foundational justification for state bans on abortions, that banning abortions will promote fetal life. Lens argues that both the antiabortion and proabortion movements have failed to recognize the millions of fetal deaths that are not caused by abortions. State bans on abortion are unlikely to significantly reduce the number of abortions nationally. However, they will likely increase fetal deaths, the legal term for miscarriages and stillbirths, pregnancy losses before and after 20 weeks, respectively. Moreover, the women who are most likely to lose their pregnancies are those who had the least protection under the previous Roe/ Casey regime—people of color and poor people of all races. The Dobbs ruling forces advocates for reproductive rights to re-theorize constitutional claims for rights and provides an opportunity for a widespread campaign for reproductive justice.

As reproductive justice advocates have been arguing for years, even before Dobbs millions of people lacked control over their reproductive lives. The individual liberty based right to choose an abortion identified by the Court in Roe was woefully inadequate to achieving reproductive rights for many people, especially women of color and low-income women of all races. Most notably, the Supreme Court held that neither the states nor the federal government were obligated to pay for abortion services, so that people who are dependent on the state for their health care lacked access to abortions well before Dobbs. Advocates in the reproductive justice movement point out that throughout our history, people of color have lacked not only the right to choose not to have a child, but also the right to choose to have a child, and to raise that child and parent her with dignity.

Since Dobbs, state bans on abortion are presumed to be constitutional on the grounds that they further the state’s interest in protecting fetal life. The Court has taken this for granted since its decision in Roe v. Wade, which found a fundamental right to an abortion but recognized the countervailing state interest of protecting fetal life. When litigating Roe v. Wade, Roe argued that banning abortion does not advance the state interest in protecting fetal life. However, the abortion rights movement abandoned that argument after Roe, as the Court ruled that the state’s interest wasn’t strong enough to ban abortion until after viability.

Since Roe, Lens points out that both abortion rights advocates and opponents take a binary approach to pregnancy and assume that all pregnant people who do not obtain abortions will eventually give birth. Abortion, however, is not the only reason, and by far not the most common reason, for fetal deaths. To the contrary, Lens points out that “hundreds of millions of unborn lives end long before live birth and not because of abortion”—but because fertilized eggs do not implant in the uterine wall, result in miscarriages, or are stillborn. Reproductive justice advocates recognize that the inability to bear a wanted child is a harm that women of color suffer disproportionately, either because they have been forcibly sterilized or because they have inadequate access to health care. Indeed, Lens points out that the risk of stillbirth is double for women of color, and for poor women of all races. Black women are also more likely to suffer late miscarriages and to die in childbirth.

States like Alabama, Mississippi, and Arkansas enthusiastically banned abortion after Dobbs to protect fetal life, yet they consistently have the highest fetal death rates in the nation. Other high-income countries have dramatically decreased their stillbirth rates. The U.S., which has one of the highest stillbirth rates among high-income countries, could do the same. The U.S. could focus on providing preventative prenatal care, by expanding access to Medicaid and ensuring access to skilled medical professionals. Yet the very states that have the most restrictive abortion laws, including Mississippi (where the Jackson clinic is located) do the least to prevent (non-abortion) fetal deaths. Those states are the least likely to have adequate health care, especially for low-income people. The states with the most restrictive abortion laws, including Alabama and Mississippi, have refused the Medicaid expansion made available to states by the Affordable Care Act. Abortion bans are compounding the healthcare crisis in those states. Many doctors argue that restrictive abortion laws make it impossible for them to practice medicine effectively. Some of them are leaving states with restrictive abortion laws, further compounding the lack of prenatal and birth healthcare, especially in rural areas. Therefore, it is likely that fetal deaths will increase, not decrease, in states that ban abortions. Indeed, according to Lens infant mortality has increased by 11.5% in the state of Texas since the Dobbs opinion enabled the state to enact an almost total ban on abortions.

Lens argues that the failure of antiabortion advocates to recognize other fetal deaths is hypocritical and inconsistent with valuing fetal life, undermining the argument that abortion bans rationally serve a legitimate government interest. Lens thus advocates for a more blatant inclusion of pregnancy loss prevention efforts within the reproductive justice framework and abortion rights narratives. Legal challenges based on fetal life hypocrisies would be subject to rational basis review and courts are highly deferential to state legislatures that restrict abortion rights. Yet even rational basis review requires a legitimate government interest to justify the legislation. Lens claims that the lack of concern for protecting fetal life exhibited by states that restrict abortions undermines their claim that they have an interest in protecting that life. Lens also argues that the states’ comfort with the high rate of fetal death reinforces arguments that abortion bans are intertwined with gender and motherhood stereotypes, adding force to the claim that abortion bans violate Equal Protection.

Most importantly, uncovering the fetal life hypocrisy of states restricting reproductive liberty turns the tables on opponents of abortion rights, putting them on the defensive, and abortion rights proponents on the offensive. After Dobbs, abortion rights advocates must lean into reproductive justice, advocating a holistic approach to reproductive rights in the future. Lens’s Fetal Life Hypocrisies makes an important contribution to this effort.

“The Wise Know When Not to Talk:” Revisiting the Kalven Report

Apr 17, 2024 Paul HorwitzAdd a Comment

The two papers on offer here are neither complementary nor opposed as such, although they have points of agreement and disagreement. They are properly paired, however. Most simply, both papers are chapters in a forthcoming book, one I eagerly await: Revisiting the Kalven Report: The University’s Role in Social and Political Action, edited by Keith Whittington and John Tomasi and published by the Johns Hopkins Press. As their titles suggest, they concern the same question: Should “the university,” in a corporate sense, speak on the controversies of the day?

This is a perennial question, of course. But it was given renewed attention by the events of 2020, which led to hundreds of universities issuing statements of varying strength and detail. And the question returned with the mishegoss of university responses to October 7^th and the larger Israel-Gaza conflict, the responses to those responses, the replies to those responses and so on.

Since 1967, a key document in the discussion of universities’ obligation to speak or remain silent on such questions has been the Kalven Report—more formally, the Report on the University’s Role in Political and Social Action, issued by a University of Chicago faculty committee chaired by the great First Amendment scholar Harry Kalven, Jr. The report described itself as “principally…providing a point of departure for discussion.” And so it has. The report’s account of the role of the university, and its recommendation that universities refrain from taking “collective action on the issues of the day,” save for circumstances involving threats to the “interests” and “values” of the university itself, has become influential—in the abstract. As the rash of recent statements indicate, however, it has been less influential in practice, although the latest round of controversy may change that. The book, and the selections commended to you here, are certainly timely—somewhat ironically, perhaps, since a signal element of the Kalven Report is its recommendation that universities not treat every moment of perceived urgency as creating a requirement to speak.

For Ginsburg, the best way to understand and justify the “institutional neutrality” of the university recommended by the Kalven Report is in small-c constitutional terms. The university, he writes—and I quite agree—is an institution. It requires “structure and rules”—in short, a constitution, a set of “institutional pre-commitment[s]” to its “foundational principles.” Ginsburg argues that “institutional neutrality” concerning “external issues of the day” is such a principle, or, perhaps, a vital underpinning to those principles.

In particular, on Ginsburg’s view, it serves the principle of robust internal debate within universities. When university leaders speak out on contested issues, this discourages existing members of that university from “inquiring into the issue” and potential members from joining it, and “may generate backlash that threatens the broader academic enterprise.” Ginsburg likens these points to the function of national constitutions. Such constitutions, he writes, “do three things:” they make politics possible by allowing for agreement on “basic institutions”; they “articulate shared values and aspirations” the polity can work toward; and “they lower the stakes of politics by taking certain things off the table, reducing wasteful conflict.” He is particularly interesting on the last point, arguing, following Stephen Holmes, that such constraints “serve to empower, by channeling energy into productive activities and away from zero-sum questions.”

Similarly, university administrators’ institutional role is to “facilitate the process” of academic and intellectual activity, “not to engage in it directly. The university’s “shared goals and aspirations” are truth-seeking and hospitable to diverse views—although Ginsburg acknowledges that whether that is “the telos of the university” is a hotly contested point. Finally, institutional neutrality “reduces the stakes of administrative control by taking some things off the table,” reducing the “wasteful” energy and internal and external politics directed at “crafting corporate statements.” These values and constraints, Ginsburg argues, are not less but more relevant and necessary “in an age of polarization.”

Although Robert Post and Ginsburg may not be too far apart on questions of practical policy, Post’s approach to the Kalven Report is quite different: more analytic, more skeptical, more willing to push at its generalities, poke at its tensions, and question its seeming certitudes. “On close inspection,” he writes, “the Kalven Report is not quite clear about the justification for its bold assertion that universities must adopt a position of ‘neutrality’ with regard to issues of social and political controversy.” He questions the empirical claim that university presidents’ declarations on such issues will “pressure[ ] dissenting faculty to conform to an official university position.” He draws the conversation back to one of the key issues underlying the Kalven Report itself—not press releases, but university decisions about how to invest or divest funds, which he views as not “plausibly connected to faculty research or teaching.” And he sees similar empirical questions in “intermediate cases,” such as whether a tweet on current events issued by a school of public health—and may one interject a quick “God help us,” both that such tweets, written by God knows who, engender controversy and that they exist at all—actually chilled any internal “discussion and inquiry.”

Post’s bottom line is that “a mechanical principle of institutional neutrality does rather little analytic work.” When it comes to speech about “ideas unrelated to a university’s core mission,” the question is simply the “contingent and empirical” one whether there is a “resulting chill on academic freedom.” In his view, this question is better asked not in the Kalven Report’s language, but in terms of “the perennial quest of universities to preserve immunity from external control.” The more universities extend themselves, speaking about matters besides “the production of education and knowledge,” the further out on a limb they will be, and the more they will reasonably “invite society to impose forms of external regulation that many members of the academic community may deeply oppose.” In such cases, having ventured outside their core mission, they will be unable to claim the mantle of academic freedom.

Post, whose chapter is practically allergic to any use of the word “neutrality,” prefers the formulation of Princeton’s president, Christopher Eisgruber, who speaks about “institutional restraint.” It is, Post writes, “a counsel of prudence, not a principle of academic freedom.” Universities may pursue other ends and speak out on other issues. But given the obligation of university administrators to “protect the independence of their universities,” they “ought to use care and prudence in pursuing goals extraneous to education and research.”

In practical terms, the two contributors are not miles apart. Ginsburg is not unabashed about the phrase “institutional neutrality” but content to use either phrase, viewing both as “standards, not bright line rules.” Post is adamant about the analytic shortcomings of the Kalven Report, but his warnings about the dangers of exceeding a position of “restraint” are sternly put. I think Post is too light about the difference between university speech and departmental speech, however. I would not want to make claims about the chilling effect of a tweet by whoever has momentary control of a departmental Twitter account. But many academic departments have issued more formal statements of late, and the likelihood that untenured professors, at least, could feel compelled to assent to them is greater than the threat from statements by distant administrators. (I leave aside the question whether a whole department, with its myriad sub-specialties, can usefully be said to have an expert opinion, or the “empirical” question whether, when a department issues such a statement, it in fact represents considered disciplinary views rather than merely, inexpertly civilian political ones.)

One might push further than Post’s prudential position and press a little on Ginsburg’s admission that institutional “neutrality” is still simply a “presumption against speaking out,” not a bright line rule, and ask two questions. First, if Ginsburg is insightful in thinking about universities in constitutional/institutional terms, on what basis do university presidents, or “universities” in some corporate sense, speak out at all on issues not clearly or fairly within the scope of their official charge? Individual university presidents may be educated and wise; my own university’s president, for example, has exhibited his own singular intelligence by paying my salary. But that is happenstance. Eisgruber is a smart fellow; but isn’t whatever he might say about the Middle East, or general law enforcement policy, or even his own field of constitutional law—in short, anything except what directly affects Princeton—simply extramural, unofficial speech? If so, on what “constitutional” basis do administrators offer those views on perfectly good university letterhead?

Second, even if both agree that there is necessarily a prudential or uncertain element to any guidance concerning institutional speech by universities on external issues, is there some danger in emphasizing its prudential nature, even if there is also some danger of incoherence in treating “neutrality” as a clear term? Universities have multiple internal and external stakeholders. In their eagerness to embrace the language and logic of the market, their leaders are ever more inclined to have their fingers out in the wind, ready to bend to the wishes of donors, legislators, public and private grant-giving institutions, parents, and students (or “customers”). Many of these stakeholders, and a great many faculty too, are happy to urge on them not only the language of urgency and exigency, but ever more extended and attenuated reasons why some external controversy is really an internal one. Will the language of prudence, or of standards, be enough to keep their courage, such as it is, screwed to the sticking place?

Regardless, both papers, each in its own way, add usefully to our understanding of the Kalven Report, and the larger question of what universities should or shouldn’t say about current controversies.