Author Archive for robert-tsai
Theory as Recipe
posted by Robert Tsai
I appreciate Jim’s and Linda’s clarifications of their project. If intellectual thought is always a mixture of ideas that have come before, we might think of constitutional theory as a recipe. What Jim and Linda have cooked tastes pretty good, and I want to know how much of what got tossed into the pot. I’m curious how much and what kinds of liberalism, republicanism, and feminism are a part of their theory: how these ideas interact, which parts seem stronger in which contexts, and why. Their response suggests that their recipe is equal doses of all three, but I’m not so sure. I might not be the only one.
Mark Graber, in his post, read the book to mean something like: 4 parts liberalism (understood as congruence with contemporary liberal policy preferences), 4 parts feminism (either congruence with political party or intellectual community), 1 part republicanism (understood as facilitating dialogue and permitting maximum policy and moral preferences to sway outcomes).
I read their “mild form of perfectionism” (p. 118) as something closer to: 2 cups of liberalism (understood as liberal defense of rights as foundational to citizenship), 4 cups of civic republicanism (structuring debates over rights), 2 heaping tablespoons of feminism (where relevant to citizenship perfecting activities). I treat the book as an effort to bridge not only intellectual divides but also partisan ones, i.e., not simply liberal preferences masking as legal theory.
The authors object to any description that their theory is procedural, and that’s fine. I merely offered that term as one way of understanding how civic republicanism might be working in their theory. And I meant it in the same way that John Hart Ely’s theory has sometimes been described as procedural, though of course it, too, yielded substantive constitutional norms and sought to shape outcomes. But for Ely (and I thought perhaps for Jim and Linda as well, though I may be mistaken), even substantive rights have to be ultimately brought back to foundational organizing principles (deliberation, virtue, responsibility).
Perhaps this shows my own inclinations, but I gravitated toward the “shared sovereignty” discussions as most interesting because the approach accords with my own sense that (1) rights must be articulated, but (2) judicial definition of rights can and should be done in ways that, to the extent possible, preserves the ability for communal dialogue (understood broadly) to continue. It also strikes me as fertile ground for further frameworks, adjudicatory principles, and justifications to be developed that might maximize those civic virtues that can foster responsible exercise of rights and robust debate over the meaning of the good life. Jim’s and Linda’s pullback from these parts of the book–that they are not celebrating such solutions and are not trying to maximize any particular civic virtues–leaves me puzzled and mildly disappointed (though possibly through no fault of their own).
February 28, 2013 at 1:07 pm
Posted in: Constitutional Law, Symposium (Ordered Liberty)
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The Language of Civic Republicanism
posted by Robert Tsai
It’s an honor to participate in this online discussion of Jim’s and Linda’s book, Ordered Liberty, which offers a theory of liberal constitutionalism that seeks to mediate tensions between rights, responsibilities, and virtue. Their work is always engaging, learned, and timely. I’m pleased to have the opportunity to share some thoughts about it.
There are many provocative concepts worth pushing on, but I thought I might begin by observing that it is possible to read their thoughtful book as requiring the use of civic republicanism as the primary language through which to fight over constitutional rights. If this is correct, I would begin by asking the question: what work does the language of civic republicanism do in their theory?
Jim and Linda posit that fostering responsibility for oneself and responsibility to others (family and community) characterizes the general project that may be undertaken by the state. At times, this “formative project” is called “securing the capacities for democratic and personal self-governance.” So, again, how much lifting does the ideology and rhetoric of republicanism accomplish?
One possibility is that civic republicanism organizes constitutional debate. It operates as a set of rules of exclusion, putting certain kinds of arguments off limits while including other kinds of arguments if they are properly constructed. Departing from communitarians and natural law theorists, Jim and Linda believe that moral arguments are permissible in constitutional debate so long as they have been translated into the language of civic republicanism: a speaker doesn’t refer to comprehensive moral doctrines, but instead resorts to some set of liberal values, or virtues.
If civic republicanism merely organizes a conversation, then it may be doing little more than establishing a range of possible outcomes, all of which might be compatible with the goal of inculcating some agreed-upon set of virtues and responsibilities. The authors’ discussion of home schooling suggests that, after taking the extremes off the table (a right to home school without qualification/ no right to home school), there are any number of possible policy arrangements that might inculcate responsibility and virtue. Similarly, in discussing BSA v. Dale, Jim and Linda don’t quite come out and say the case was wrongly decided or rightly decided, but are content to suggest ways in which the opinion might have taken autonomy and responsibility better into account. This hesitation could be treated as evidence that, once extreme solutions are taken off the table and the language of virtue and responsibility is used in some minimally proficient way, their theory is indifferent to which outcome is selected so long as the choice is defended in the right vocabulary. This vision can, in a slightly different light, resemble a procedural approach to constitutional law.
But it may seem unsatisfying for a constitutional theory not to help us choose among attractive possibilities. Can we imagine a civic republicanism that does more work, one that more strongly shapes particular outcomes? In other words, can the framework of virtues and responsibilities aid us in sifting through possibilities and identifying better solutions from among plausible ones? Perhaps, but in a pluralistic community we would need to know something more about particular responsibilities (to whom), which virtues should be maximized (since in reality many different virtues may be at stake and in tension), and whose virtues should be prioritized (more on this later) before we could assess which outcome would best facilitate a virtue-based agenda.
Perhaps what Jim and Linda offer is something short of a comprehensive theory (the authors seem skeptical of grand theories and perfectionist approaches) but more than a rule-bound approach. It is a demand that constitutional discourse occur under certain grammar rules, coupled with a handful of meta-principles. At times, Jim and Linda seem to be arguing that civic republicanism (at least the version favored by the authors that takes both rights and responsibilities seriously) yields substantive meta-norms. For instance, their critique of Sunstein’s theory of minimalism suggests they favor a strong adjudicative norm of judicial engagement. They don’t seem to think that judges should avoid controversial cases simply out of a fear of backlash; to the contrary, they believe (as I do) that judges must undertake to articulate rights as part of a duty to ensuring deliberative politics.
The authors praise solutions that neither spell out absolute rights nor deny individual autonomy. They especially like solutions of “shared sovereignty” grounded in the idea that multiple communities have a claim on individuals (see, for example, their discussion of cases involving the rights of schoolchildren or abortion), and solutions that foster dialogue among different branches of government (see their analysis of the gay marriage rulings). All of these strategies of decisionmaking may encourage deliberation, though in ways that individuals might occasionally fear, precisely because they challenge one’s worldview. What I am less certain of is what civic virtues are being maximized through shared sovereignty solutions. Is it an ideal mindset associated with citizenship?—for instance, Jim and Linda sometimes speak of “reflective” judgment. Perhaps the best legal decisions foster certain habits of citizenship, e.g., considering a viewpoint different from one’s own, consulting all communities with a stake in the outcome? Or are shared sovereignty solutions preferred on the view that multiple decisionmakers might increase the chances of better, more informed decisions, or at least culturally supported ones?
So, the upshot is this: how thick or thin, and how substantive or procedural in nature is the language of rights, virtues, and responsibility?
February 26, 2013 at 11:36 pm
Posted in: Constitutional Law, Jurisprudence, Symposium (Ordered Liberty)
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Hallucinogenic Tea with Chief Justice Roberts
posted by Robert Tsai
Earlier, I posted on the interesting position taken by the new Chief Justice on the Gonzalez v. Oregon case, which involved the Controlled Substances Act. There, he joined Justices Scalia and Thomas in a reading of the federal law that would have effectively ended Oregon’s experiment with physician assisted suicide. Now, in Gonzalez v. O Centro Espirit a Beneficente Uniao Do Vegetal, he authors a major opinion reading the Controlled Substances Act (CSA) narrowly to allow a church to import hallucinogenic tea. What gives?
February 23, 2006 at 1:56 pm
Posted in: Constitutional Law
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The Meaning of “Well Settled Law”
posted by Robert Tsai
Lawyers use the phrase liberally in their briefs; judges sprinkle their opinions with it. But hardly anyone agrees what it means. The phrase: “well settled law.” One of the most interesting exchanges occurred during the Alito hearings over this very phrase:
Ms. Feinstein asked whether Judge Alito did not agree that Roe “was well settled in court.”
He said, “It depends on what one means by the term ‘well settled.’”
This was followed by an extended back-and-forth and careful parsing of what the phrase may or may not mean to Alito.
It would be a mistake to see Alito’s equivocation as merely a product of confusion over terminology. Indeed, Alito’s hesitation to accord Roe the status of “well settled law”–he finally said only that it must be accorded “respect” as “very important precedent”–cannot be understood in an internally coherent way.
February 6, 2006 at 1:46 am
Posted in: Civil Rights, Constitutional Law, Legal Theory, Politics
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Hail to the (New) Chief: Death With Dignity-Part III
posted by Robert Tsai
So, what might be gleaned from the New Chief’s silent joining of Justice Scalia’s dissenting opinion in Gonzalez v. Oregon? First, as to be expected (at least for now), he is influenced more by his experiences as a former executive branch lawyer and member of the political elite than he is by any popular backlash against the unitary executive model.
Second, national interests trump state interests–even where there is ambiguity in the federal statute. His own questions at oral argument, particularly his concern for the uniformity and supremacy of federal law, suggested this outcome. Federalism is messy, and it appears he is unwilling to countenance too much muss. He, like Scalia, is willing to read Congress’ enumerated powers broadly (and the core of state’s rights narrowly in advance of national interests)–even when the strongest interest appears to be in cultivating moral standards. This is bad news for proponents of interstitial federalism.
Third, his willingness to sign Scalia’s dissent in toto–and thereby subjugate his own ego in a high-profile matter–shows that he is as savvy as his confirmation hearings suggested. The practice of writing separately has almost become a custom with the Rehnquist Court. He is willing to buck this trend, to allow Scalia to speak for this coalition on this day with a single voice, and to build his alliances carefully–starting with his natural friends.
January 18, 2006 at 5:30 am
Posted in: Constitutional Law
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Death With Dignity–Part II
posted by Robert Tsai
Justice Kennedy’s opinion affirmed Oregon’s statute, and overturned Attorney General Ashcroft’s interpretive rule claiming that the use of controlled substances to assist suicide is not a medical practice and therefore unlawful under the CSA (Controlled Substances Act). Technically, the case involved whether the Attorney General’s interpretation should be accorded any deference; here, the Court concluded “no.”
But I have to think that Oregon is very, very lucky regarding the timing of the case.
January 17, 2006 at 3:28 pm
Posted in: Constitutional Law
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Supreme Court Upholds Oregon’s Death With Dignity Act
posted by Robert Tsai
In a 6-3 decision, the Court today upheld Oregon’s physician-assisted suicide law. With the Court’s makeup in flux, there was much speculation that if the conference vote was 5-4, the case might be held over for reargument. It appears that the key was that the federalism position won over Justice Kennedy, who was visibly torn at oral argument. Assigning him to write–a privilege of the most senior Justice in the majority–helped to keep him on board. A decisive majority meant there was no reason for Justice O’Connor not to participate. Off to class–more analysis later.
January 17, 2006 at 11:13 am
Posted in: Constitutional Law
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Just Do It: Sports v.s. Academics
posted by Robert Tsai
So, another sportswriter has gotten under the skin of University of Oregon President Dave Frohnmayer. Awhile back, Sports Illustrated shined a national spotlight on the football program’s lavish digs.
Here is ESPN’s account of Phil Knight’s (read: NIKE’s) alleged influence on the track program and the university generally, prompting Frohnmayer to fire back.
January 16, 2006 at 4:21 pm
Posted in: Law School
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Green Bag Honors Good Legal Writing from Past Year
posted by Robert Tsai
The Green Bag has published its first ever “Almanac of Useful and Entertaining Tidbits for Lawyers & Reader of Good Legal Writing from the Past Year: Selected by the Legal Luminaries and Sages on our Board of Advisors.” (whew!–it’s a lawyerly mouthful; too bad the editors couldn’t practice what they’re preaching).
The top vote-getters in each category:
1. OPINIONS AND ORDERS
Honorable Paul H. Cassell, U.S. v. Angelos, 345 F. Supp.2d 1227 (D. Utah 2004)
Honorable Alex Kozinski, In re Complaint of Judicial Misconduct, 425 F.3d 1179 (9th Cir. 2005) (dissenting)
Honorable Mark P. Painter, Kohlbrand v. Ranieri, 823 N.E.2d 76 (Ohio Ct. App. 2005)
Honorable James M. Rosenbaum,Rohwer v. Federal Cartridge Co. 2004 U.S. Dist. Lexis 23744 (D. Minn.)
Honorable Antonin Scalia, Roper v. Simmons, 543 U.S. 551 (2005) (dissenting)
Honorable Diane P. Wood, Gore v. Ind. Univ., 416 F.3d 590 (7th Cir. 2005)
2. BOOKS
David Currie, The Constitution in Congress: Democrats and Whigs, 1829-1861 (Chicago Univ. Press 2005)
Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (Henry Holt 2005)
Sadakat Kadri, The Trial: A History, From Socrates to O.J. Simpson (Random House 2005)
January 9, 2006 at 12:28 am
Posted in: Law and Humanities
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