Category: Jurisprudence

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Legal Fictions and Constitutional Change

Enough with the anti-partisan principle already!  I hear you.

I was asked a few months ago to write an essay on “constitutional change” for a book about the Constitution.  After scratching my head, I decided that the best way to approach this topic would be to describe various fictions that the Supreme Court uses to make (and conceal) dramatic constitutional change. The next batch of posts will about that subject.

Let’s start with a famous example.  In Brown v. Board of Education, the Supreme Court held that racial segregation of public schools was unconstitutional. Chief Justice Warren’s opinion emphasized the importance of education in the Court’s decision.  Over the next four years, other cases were filed challenging state segregation of facilities such as parks, golf courses, drinking fountains, etc.  The Court responded with per curium opinions that invalidated those segregation policies without any explanation except “see Brown.”   The fiction in Brown was that it was just about education.

This is what we might call a “dicta/holding” mismatch.  In other words, the Supreme Court makes the medicine go down easier by understating the breadth of the holding in the breakthrough case and then applying the real holding without explanation.  Step One is easy to understand.  Step Two is necessary to avoid inflaming or antagonizing public opinion (at least that’s the best justification).

More tomorrow.

 

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Stating the Facts in Judicial Opinions

Modern judges are responsible for reciting the facts of cases in their opinions.  But before the 20th century, it was a frequent practice for the facts to be written by someone else, usually a court official (called an auditor or reporter) but sometimes by one of the advocates. [In contracts, see, e.g.,Lawrence v. Fox (NY 1859); Boothe v. Fitzpatrick (Vermont 1864); Cotnam v. Wisdom (Ark. 1907)].

The result sometimes created conflicts between what the judge appeared to assume the facts to be and the way they had been stated.   That may have been a factor that led to abandoning the old-fashioned practice and having judges write their own facts.  Would judges have preferred to avoid writing the facts or favor laying them out for themselves?

I wonder what was the reason for the old-fashioned approach.   What were the other reasons for its displacement by the modern approach?  Has it made a particularly important difference in many cases?   When one sees such ancient opinions in casebooks for first year classes, what should students be told to make of that old practice as a matter of legal method?  Informed insights are eagerly sought.

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Bright Ideas: Mark Weiner on his new book Rule of the Clan

Sometimes fortune smiles upon you. I met Mark Weiner when we started law school. My life and my work is much better for it. Mark is a scholar and more. He obtained his B.A. in American Studies from Stanford, his J.D. from Yale, and his PhD in American Studies from Yale.

His most recent project is his excellent book, The Rule of the Clan. Ambassadors, professors from all around the world, members of the 9/11 commission, and publishers have embraced the book. Mark argues, and I think rather well, that the state has a quite important role to play, and we ignore that to our peril. Publishers Weekly has said:

A nuanced view of clan-based societies … Weiner’s argument is a full-throated defense of the modern centralized state, which he sees as necessary to protect human rights: “In the face of well-intended but misguided criticism that the state is inimical to freedom, we must choose whether to maintain the state as our most basic political institution or to let it degrade.” An entertaining mix of anecdote and ethnography.

The New York Journal of Books has called the book “accessible, mesmerizing, and compelling.”

I wanted to get into how Mark came up with the project, why it matters, and, for the writers out there, the process of writing about such a complex subject but in a way that is accessible to a general audience. So I asked Mark whether we could do a Bright Ideas interview. He graciously agreed.

Mark, the book is great. I want to jump in and ask, What do you mean by “clan”?

Thanks, Deven. In my book, I consider clans both in their traditional form, as a subset of tribes, but also as a synecdoche for a pattern by which humans structure their social and legal lives: “the rule of the clan.” Clans are a natural form of social and legal organization. They certainly are more explicable in human terms than the modern liberal state and the liberal rule of law. Because of the natural fact of blood relationships, people tend to organize their communities on the basis of extended kinship in the absence of strong alternatives.

So why clans now?

Two reasons. First, the United States is involved militarily in parts of the world in which traditional tribal and clan relationships are critical, and if we don’t understand how those relationships work, including in legal terms, we have a major problem.

Let me give you an example from Guantanamo. In the book, I tell a story of a college friend who was in charge of the team there interrogating detainees from Saudi Arabia. (I should note that my friend finds torture morally repugnant and against the national interest, as do I, and that she has advocated for this view in meaningful ways.) Over the course of her work, my friend realized that because of the first-name/last-name structure of the detainee tracking system, basic information about detainee tribal affiliations hadn’t been gathered or had been lost. This meant, among other things, that we couldn’t fully appreciate the reason why some of these men had taken up arms against us in the first place—for instance, because the United States had become embroiled in their centuries-long, domestic tribal war with the House of Saud.

Our ignorance about these issues is what I call the contemporary “Fulda Gap.” Our lack of knowledge about more traditional societies hinders our ability to understand the motivations of those who oppose us and leaves us vulnerable—and, even more important, it diminishes our ability to cooperate with our friends and to assist liberal legal reformers abroad in ways that are both effective and ethical.

The second reason to study clans, and ultimately for me even more important than the first reason, has to do with our own political discourse here at home. You could say that I became interested in clans because of widespread ideological attacks against the state within liberal societies—that is, attacks on government. By this I mean not simply efforts to reduce the size of government or to make it more efficient. Instead, I mean broadside criticisms of the state itself, or efforts to starve government and render it anemic.

I think you are saying there is something about clans that helps us organize and understand our world. What is it?

It’s often said that individual freedom exists most powerfully in the absence of government. But I believe that studying the rule of the clan shows us that the reverse is true. Liberal personal freedom is inconceivable without the existence of a robust state dedicated to vindicating the public interest. That’s because the liberal state, at least in theory, treats persons as individuals rather than as members of ineluctable status or clan groups. So studying clans can help us imagine what our social and legal life would become if we allow the state to deteriorate through a lack of political will.

By the way, the idea that the state is somehow inimical to freedom—that we gain individual freedom outside the state, rather than through it—is hardly limited to the United States. It was a core component of Qaddafi’s revolutionary vision of Libya. Or consider Gandhi, who advocated for a largely stateless society for postcolonial India. Fortunately for India, his vision wasn’t realized. Instead, we owe the prospects for further liberal development there to the constitution drafted by B. R. Ambedkar.

Hold on. From Indian independence to Libyan revolution seems a long jump. Can you help me connect the dots?

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The Language of Civic Republicanism

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?

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Review of Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy

Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy (Harvard University Press 2012)

Don’t be alarmed by his book’s sweeping title: Abner Greene isn’t suggesting that we chuck Contracts from the law school syllabus. Rather, he has three particular sorts of supposed obligations in his crosshairs: a moral obligation always to obey the law (also known as political obligation), an obligation to defer to “the past” – be it “original meaning” or simply judicial precedent – in constitutional jurisprudence, and an obligation by public officials to be bound by the Supreme Court’s reading of the Constitution. A surprising number of theories propose the existence of such obligations in “content-independent” form – and Greene refutes them methodically, even relentlessly, one after another. One of the achievements of this book is that he manages to sound more reasonable than radical while doing so.

But while the book’s subtitle, “The Multiple Sources of Authority in a Liberal Democracy,” suggests a broader viewpoint, this book is embedded within an entirely American discourse. A reader outside the US, or even one of a comparativist bent within it, might well wonder whether Greene’s arguments are as airtight as they seem, whether they’re as controversial as he may think they are, or even what sort of philosophy this kind of book is really about.

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Book Review: A Brief History of Judging – From the Big Bang to Cosmic Constitutional Theory

J. Harvie Wilkinson, III, Cosmic Constitutional Theory (2012)

Opining on Justice Stephen Breyer’s book, Active Liberty, Judge Richard Posner wrote that “a Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all.” Much the same could be said about Cosmic Constitutional Theory by Judge J. Harvie Wilkinson, III, the latest jurist to write about his own constitutional theory—or in Judge Wilkinson’s case, a self-professed lack of a constitutional theory.

Judge Wilkinson views all theories of constitutional laws as “cosmic” in the metaphyhsical sense. “[T]he search for cosmic theory has caused us to forget some mundane and humdrum truths, and that future generations will not look kindly on the usurpations that pursuits of unattainable ends have brought about.” Living constitutionalism, the hallmark of the Warren Court, is “activism unleashed.” Originalism—in many respects a moderating-jurisprudence born in reaction to living constitutionalism—to Judge Wilkinson is merely “activism masquerading as restraint.” Pragmatism—the approach endorsed most prominently by Judge Posner—is “activism through antitheory.” Constitutional theories are activist all the way down, to borrow another cosmic image. So, if living constitutionalism, originalism, and pragmatism are out, what is the best judicial philosophy? To Judge Wilkinson, that is the wrong question. In his view, the ideal jurisprudence is none at all. “So what is my theory?” he asks, rhetorically. “The answer is I have no theory.”

But it is not quite that simple. The sine qua non of Judge Wilkinson’s view of the judicial power is to permit the people, through self-determination and the democratic process, to rule for themselves. This very rejection of a constitutional theory is, in essence, a theory in and of itself. His anti-theory, one could call it, fails to address a number of curious constitutional counterfactuals the book raises, but does not resolve. What if other judges, applying Judge Wilkinson’s non-philosophy, had to decide divisive cases, where the will of the people was at odds with individual liberty? Think of cases involving segregation, eugenics, disenfranchisement, or criminal rights.

Elsewhere, Judge Wilkinson has written that “[w]hen a constitutional question is so close, when conventional interpretive methods do not begin to decisively resolve the issue, the tie for many reasons should go to the side of deference to democratic processes.” Judge Wilkinson punts on these important questions quite unconvincingly: outlier “[d]ecisions like BrownGideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born.”

To simply shoo away any future constitutional conflicts by saying the Supreme Court has already decided the important cases is short-sighted, and as Gerard Magliocca put it, somewhat reminiscent of the 19th Century Patent Commissioner who purportedly boasted that “Everything that can be invented has been invented.” This is not the case with respect to inventions, and it is certainly not the case with respect to future unexpected constitutional crises. Further, this position does nothing to address whether a Judge Wilkinson sitting on the Fourth Circuit or the Supreme Court decades earlier would have decided cases any differently. Unexpected changes in our society—disputed presidential elections, a war on terror, broccoli mandates, and other constitutional black swans—will happen, and the Supreme Court will confront them.

More pressing, is from what, or more precisely, from where Judge Wilkinson would derive these “foundational principles essential to the functioning of our nation.” Indeed, it is quite debatable what the foundational principles of our nation are, and what makes them essential to the functioning of our nation. Originalists would say that the foundation of our nation is the Constitution as understood by the founding generation. Living Constitutionalists would say that the foundation of our nation is evolving principles that reflect present circumstances.

And what are these principles to Judge Wilkinson? Addressed almost in passing, he notes that “[o]ne foundational premise of the American experiment is that self-determination is a valuable good.” Judge Wilkinson assumes—almost as if it is incontrovertible—that the foundational principle that separates a bad (read activist) opinion from a good (read restrained) opinion is one that promotes self-governance. But he does not show why this is so, nor does he prove why this is Article III’s ideal explication of “the judicial power.”

Cosmic Constitutional Theory serves as a worthy embodiment of Judge Wilkinson’s quarter-century of minimalist jurisprudence on the Fourth Circuit, and offers salient and vigorous critiques of today’s most popular schools of constitutional thought. However, where the book falters is by failing to come to grips with the foundation of Judge Wilkinson’s own anti-jurisprudence.

Josh Blackman, Assistant Professor, South Texas College of Law

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Illegal Aliens and Natural Rights

There have some recent federal circuit cases addressing (and rejecting) the proposition that the Second Amendment right identified in Heller applies to illegal aliens.  To some extent, these courts and other commentators have tried to work out a broader understanding of what distinguishes the rights held by citizens and legal residents from those of illegal residents.  What about the Fourth Amendment, for example?

Perhaps this is the legal historian in me, but this discussion sounds an awful lot like the traditional conversation about what are natural rights vs. rights that come only from positive law. In other words, if a state passed a law saying that illegal immigrants may not worship God as they please, I think we’d all agree that would be unconstitutional.  Why?  Because presumably we think religious freedom is a natural right (or, if you don’t like that phrase), a really fundamental right.  The right to, say, a civil jury trial is not viewed in the same way.  Consequently, I wonder if natural rights discourse will make a comeback through these discussions.

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Clinton or Gillibrand for SCOTUS

Professor Bainbridge picked up on my post about the importance to New York of Gov. Cuomo choosing for top court appointments jurists who are pro-business, as well as agreeing with the Governor’s liberal views.  The Professor notes that this is equally important for President Obama, including for the Supreme Court. 

 Two examples of such liberal pro-business people who would be wonderful spring to mind: Bill Clinton, though he has already said he’s too old for the job, and his wife’s successor, Senator Kristin Gillibrand (whom I would suggest for the New York Court of Appeals, though such a job doesn’t seem likely to appeal to freshly-elected U.S. Senator).

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Legislative History and Statutory Interpretation

I want to draw your attention to an terrific new article by Victoria Nourse about how to read federal statutes.  Her argument is elegant and practical: Courts should construe statutes in light of congressional rules and norms.  Why?  Because they form the expectations that frame any ambiguous text.

Nourse gives five principal examples of congressional rules that should influence judges when they are engaged with a law (and uses cases to show how courts either get these rules right or wrong).  They are:

1.  Never read legislative history without knowing Congress’s own rules.

2.  Later textual decisions trump earlier ones.

3.  The best legislative history is not identified by type, but by specificity to the interpretive question and proximity to the textual decision.

4.  Never cite legislative history without knowing who won and who lost the textual debate.

5.  Congress’s rules may create ambiguity for courts but not for Congress.

Anyway, take a look.  It’s well worth your time.

 

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Calling Liberal Pro-Business Judges

Andrew Cuomo, New York’s Democratic Governor, will have the responsibility of making two appointments to the state’s highest court, after the recent death of Judge Theodore T. Jones Jr. and the planned year-end retirement of Judge Carmen B. Ciparick (reaching the court’s mandatory retirement age of 70).  A screening commission will submit a list of names to the Governor from which to choose.

Since selection of judicial nominees is the prerogative of the chief executive, few could rebuke Cuomo for seeking judges in his own likeness. The Governor may prefer to appoint judges with liberal political, religious or social views without regard to other factors, such as a judge’s attitudes toward business.

Yet selections should be guided by the public interest, which may mean using broader criteria. As an extreme example, Mario Cuomo, when he was New York’s governor, deliberately appointed both Democratic and Republican judges to the court on the grounds that quality and balance were more important than quantity and ideology. Given New York’s role as a leading center of international commerce, however, there is a good case that the public interest calls for judges who understand the needs, values and realities of business.

When business people make contracts in New York, they want to know that the courts will uphold them as written and not rewrite them based on a judge’s notions of what is good for the parties. When corporations are formed in the state, entrepreneurs need flexibility and deference without the fear that courts will second-guess how they organized their companies or their business judgments. Judges who understand such business realities reinforce New York’s appeal as a commercial center and may be classified as “pro-business.”

Critics of the Supreme Court have politicized the concept by associating it with conservative thought: Republican justices are portrayed as pro-business, Democrats anti-business. Such an environment begs the question whether there is such a thing as a liberal judge who is also pro-business.

There is not necessarily anything conservative or liberal about being pro-business. True, two justices on the far left, William Brennan and Thurgood Marshall, showed a strong anti-business ideology. But other Democrats, including John Paul Stevens and Byron White, are not so readily classified, and Stephen Breyer’s opinions are quite business-friendly. Furthermore, many Republican justices, such as Sandra Day O’Connor and Potter Stewart, were not invariably pro-business.

The same has been true among judges on the New York Court of Appeals. Leading examples are former Chief Judges Stanley Fuld and Judith Kaye. Fuld was a progressive with Dewey-Republican leanings; Kaye is a Democrat with practicality and common sense. Fuld wrote an influential opinion (Walkovsky) upholding limited liability for corporate shareholders even when a business was structured for that sole purpose. Kaye wrote the important opinion (Levandusky)  that applied the deferential business judgment rule to decisions made by the boards of co-operative homeowners’ associations.

The screening commission and the Governor would do well to look at a class of jurists: experienced business lawyers. Alas, other than Robert S. Smith, the judges on New York’s Court of Appeals lack such experience.  Governor Cuomo has a chance to correct that deficiency, even while appointing judges who share his Democratic values.

Co-Op readers can help by leaving suggested nominees on the Comments section below!

Hat Tips: Stephen Bainbridge, Lester Brickman, Stephanie Cuba, Jeffrey Manns, John McGinnis and Stewart Sterk.