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Category: Symposium (Normative Jurisprudence)

6

The Normative Jurisprudence of Creepshots

My reaction to Robin West’s extraordinary scholarship always includes some mixture of distress and excitement: distress over the failures of law and humanity she describes with such devastating clarity, and excitement about the potential applications of her insights. In this post, I want to discuss how Robin’s critique of both liberal legalism and what she calls “neo-critical” legal theory in Normative Jurisprudence – particularly the former’s fetishization of individual rights and the latter’s decidedly uncritical celebration of consent – usefully illuminates the recent controversy over the outing of Michael Brutsch, aka “Violentacrez,” the man behind some of the most controversial forums on the popular social news website, reddit.com. One of these, the “/r/creepshot” forum (or “subreddit”), which encouraged users to submit surreptitious photographs of women and girls for sexual commentary, garnered national attention when it was discovered that a Georgia schoolteacher was posting pictures of his underage students. Brutsch’s outing (or “doxxing“) sparked outrage from many in the reddit community, and has led to an intriguing online and offline debate over Internet norms and practices. The defense of Brutsch and the forums he helped create – mostly sexual forums targeting women and girls – has been dominated by a highly selective conception of the right to privacy, the insistence on an unintelligibly broad conception of “consent,” and a frankly bewildering conception of the right to free speech. Attempts to criticize or curtail these forms of online abuse have also been primarily framed in terms of “rights,” to uncertain effect. Robin’s critiques of rights fetishism and the ideology of consent offer valuable insights into this developing debate.

I will attempt to briefly summarize (and no doubt oversimplify, though I hope not misrepresent) the points Robin makes that I think are most useful to this conversation. Liberal legalism’s focus on rights rests on a seductive fantasy of individual autonomy: it “prioritizes the liberty and autonomy of the independent individual, shrouds such a person in rights, grants him extraordinary powers within a wide ranging sphere of action, and in essence valorizes his freedom from the ties and bonds of community. It relegates, in turn, the interests, concerns, and cares of those of us who are not quite so autonomous or independent … those of us for whom our humanity is a function of our ties to others rather than our independence from them … to the realm of policy and political whim rather than the heightened airy domain of right, reason, and constitutional protection” (41). The critical legal studies movement attempted to correct some of this rights fetishism by pointing out that “rights” are not only radically indeterminate (i.e. rights can be interpreted and granted in conflicting ways), but that they are also legitimating (that is, bestowing the status of “right” on narrowly drawn freedoms can obscure the injustice and inequality that fall outside of them, thus insulating them from critique).

Robin persuasively demonstrates that neo-critical legal theorists held on to the indeterminacy thesis while jettisoning the critique of legitimation. Concerns about legitimation are concerns about suffering, and neo-crits are largely uninterested in, if not contemptuous of, suffering. Their primary concern is power and pleasure, which is accordingly supported by what Robin calls “the ideology of consent.” To the neo-crits, consent has the power to fully shield any act from either legal or moral critique. Robin addresses the way the ideology of consent plays out in the context of sex by looking to the work of Janet Halley. According to Robin, Halley espouses a view of sex that takes “[c]onsent to sex … as full justification for a collective blindness to both societal and individual pressures to engage in unwanted sex, so long as the sex is short of rape”(142). Sex is presumptively pleasurable, and as such presumptively immune from critique. As Robin describes Halley’s position, “sex is almost always innocent, and when consensual, there can be no ‘legitimate’ basis for criticism. Consensual sex is just too good to be circumscribed, or bound, by claims of its unwelcomeness or unwantedness. The claims that consensual sex is in fact unwelcome or unwanted are likely false in any event. The harms sustained, even if the claims are true, are trivial” (146). (I came to similar conclusions regarding Halley’s work in my review of her book, Split Decisions: How and Why to Take a Break from Feminism).

Now to apply these insights to the Michael Brutsch/creepshot controversy. The moderators of the creepshot subreddit provide this helpful definition of “creepshot” on the “subreddit details” page:

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2

Genderless Marriages, Neutral Constitutions, Bloodless Persons and the Unbearable Lightness of the Good

A few thoughts on Kathy Baker and Deborah Hellman’s colloquoy:

Obviously, no matter how much we might wish it to be, civil marriage, whether its called marriage or union, cannot be both gendered and genderless; if respect for persons or pluralism counsels that the state should be neutral on that question, then genderless has won out.  Anyone who believes that marriage is by definition a relationship that is centered on “heterosexual intercourse between a man and a woman of the reproductive kind,” as Robert George and John Finnis and many others somewhat awkwardly claim and vehemently  believe, will certainly not have their understanding of marriage validated, or respected, by such a neutral state.  A neutral state is non-neutral by virtue of its “leave-it-to-the-individual”-neutrality, wherever such definitional clarity is required.

How to square the circle?  As a number of social conservatives as well as a good many progressives have sensibly concluded, perhaps the reasonable solution to this non-neutral neutral conundrum is for the state to remove itself from the business of sanctioning marriages.  Marriage, then, would   be a religious or secular institution, depending on the desires of hte participants, but either way it would be privatized, and then the state can go back to its primary business of enforcing contracts, including contracts between consenting adults for various intimate and not so intimate matters.  Then the state would be neutral with no disabling paradoxes, and marriage could be whatever religious traditions or secular humanists wish it to be.

The problem with this happily neutral solution, as Kathy rightly notes, is that marriage is more than a relationship and more than heterosexual intercourse of the reproductive sort.  It is also a semi privatized social welfare net: married partners are less likely to fall into poverty when calamity hits.  They have access to their spouse’s social security payments, military benefits, pensions, and of course health insurance.  We don’t have a robust public welfare net, so that semi privatized one does matter, and a great deal.  But, if that’s all that civil marriage is — a semi-private semi-public safety net — then there’s obviously no reason to limit it to opposite couples, simple fairness requires that we expand it to same sex as well, as the marriage equality advocates tirelessly point out.  The problem with that happy solution, of course, is that if we so expand it, it should become obvious that there’s no reason to limit it to “sex”‘-ed relationships either, whether same sex or opposite sex or both… why not the same benefits, the same safety net, for the grown woman caring for her elderly parents, or the two siblings for each other?  After all, what’s sex got to do with it?  Nothing, really.  And if we expand it to these non sex-ed relationships as well, then why limit it to relationships at all, why not simply pair everyone as they enter adulthood randomly by social security number with some other partner, if they haven’t managed to partner themselves off, either erotically or emotionally, so that everyone will have the benefit of someone else’s insurance policy or retirement benefits?

To stop this slope, as Kathy says, there does indeed have to be something worth saying, about relationships — if one wants to stop the slide at relationships.  Perhaps we should extend these benefits to people in relationships, rather than through a random buddy system, if there’s something good about relationships.  That requires, presumably, some sort of view about what’s good for people — put differently, some view about the nature of the good.

To Deborah — its so good to hear your voice! — should the Constitution be read as based on a conception of hte good?  I’d like first to distinguish two different quesitons, or views: one is the claim, made by Dworkin and Ackerman back in the seventies, and by many since then, that liberalism requires state neutrality toward conceptions of the good, from the quite different contention that the Constitution does not itself presuppose a conception of the good.  ITs easy to conflate these two, but we shouldn’t.  The liberal claim seems to me dubious, both with respect to liberalism itself — historically liberalism has been committed to pretty well developed conceptions of the good, the claimed centrality of state neutrality is a relatively modern intra-liberal invention –  but also on the merits, so to speak: it is also simply an unappealing political philosophy.  Too much state neutrality toward conceptions of the good tends toward corporate personhood, existential threats to big bird and NPR, inadequate support for public education, an inability or studied refusal to articulate compelling arguments for health care, sex education, in terms of the qualities of people’s lives, and so on.  As I argue in my book, one other cost of contemporary liberalism’s commitment to this dubious premise is that partly as a consequnece,  we don’t have a progressive natural law: liberals disdain the entire tradition, in part, because of their antipathy toward conceptions of the good, and antipathy toward the notion that the state should entertain them.   So the part of the natural law that I believe is of most interest — the part inspired by Aquinas and most developed by Finnis and his students, that explores the content of the Common good and the role of the state, and of law, in realizing it — suffers from a lack of participation by those who ought to be most engaged.

But whether or not the Constitution should rest on some such conception is another question, and that’s Deborah’s question.    In liberal, constitutionalized discourse, where the Constitution plays an outsized role in political debate, political questions tend to become almost immeidately “constitutionalized,” and therefore “legalized” and therefore “judicialized”: the quesiton, for example, should the state outlaw abortion (or hate speech, or flag burning, or pornography, or interracial marriage) becomes, almost as soon as its uttered, would it be constitutional for the state to outlaw abortion (and so on).  That quesiton,because its a constitutional quesiton, becomes, immediately, a “legal” question in a culture such as this one where constitutions are presumed to be part of our positive law.  And because its a “legal” question, it becomes, almost immeidately, because of the role of courts in our system,a  judicial quesiton for the courts to answer.  So political discussion of the wisdom of outlawing abortion, hate speech, flag burning, pornography, and so on is put through what i call the legal question doctrine funnel: it all eventually becomes constitutional-legal questions, to be answered by Courts, primarily by reference to past authority.  This leaves questions of “the good” –both the goodness of abortion, flags and so on, and the goodness of criminalizing or not those actions, and the goodness of having the liberty to ake the decisions oneself, and the goodness of democratic resolutions of those quesitons — off the table.  A thick constitution, unlike a thin one, takes more and more under its wing so to speak.  So as our constitutional discourse expands, our political discourse, and particularly political discourse about the good, is to that degree impoverished.  So,  for that reason alone, which is quite different from Deborah’s, I believe that a thin Constitution like the one Deborah defends is appealing, on grounds, simply, that the thinner the Constitution, the less it does, and therefore the less it risks impoverishing   political (and legal) discourse regarding the nature of the good.  A thin Constitution might be the closest we get to a Constitution outside the courts.

But there’s a substantial downside to that trade-off, which is discussed in my first chapter, and that is the tendency of progressive or liberal constitutionalists, rigorously committed to both state neutrality as a tenet of liberalism and state neutrality as a tenet of constitutionalism,  to in effect and unknowingly simply cede the ground of goodness, and what it does and doesn’t require of states, to others not so skittish about such commitments.  Neutral constitutionalism tends toward decidedly libertarian and market based outcomes for now familiar reasons, one of which though is the willingness, indeed the eagerness, of libertarian and social conservative constitutionalists to build, unapologetically so to speak, on the insights of both libertarian and social conservatiev conceptions of the good.   Unlike liberal constitutionalists, they’re not so troubled by the idea of a Constitution committed to a conception of the good, so long as its the correct conception.  Those arguments, then, tend to  go unmatched, and win by default.  We don’t have a much developed understanding of the contribution of decent gun control laws to the goodness of secure, fear- ree living, in domestic homes or on the streets, that matches the developed understanding of the contribution of liberty to the goodness of an autonomous life, just as (and for some of the same reasons that) we don’t hae a fourteenth amendment argument for the necessity of gun control to the equal protection of the law, to match the argument for the Second Amendment so as to protect liberty.   We don’t have an argument for the necessity of health care to a good life, to match the argument for the necessity of individual liberty to make market choices regarding insurance purchases, just as, and for some of the same reasons, that we don’t have much of an argument for the necessity of health care (or education) to the privileges and immunities, or the substantive due process rights, or the general welfare, to match arguments for the necessity of individual liberty and state privilege over these decisions.   We don’t have an argument for the necessity of a decent social welfare net to the “General Welfare” or to the Common Good, to counter arguments for the centrality of state or individual sovereignty and the marginality of community to the Good Life that are so deeply embedded in libertarian arguments to the contrary. And so on.  So there’s an awful lot of ground being conceded, both in the literal courts and the various courts of public opinion, by virtue of liberal insistance on state neutrality toward questions of the good.

Whether the Constitution requires these more robust arguments about the nature of the good  is a hard question — the text itself might demand more of it than our liberal insistence to the contrary seems to suggest.  But even if Deborah is right that pluralism counsels a thin, goodless constitution, or if i’m right above that a goodless constitution might be desirable for other reasons, it should not shut down liberal-legal conservations regarding the nature of the good, the good life, and the relation of law  to both.  There are reasons to be worried, no doubt, when the state becomes the nanny state, taking on the responsibility of deciding on our behalf the size of our sodas, the composition of our families, the best configuration of gender roles, the tradeoffs we should be making between consumption and pollution, whether we should be buying guns or butter.  There are also reasons to be worried, though, when the state becomes so dissociated from the human good it exists to promote that it — that would be we — forget that humanity of citizens, the frailty, mortality and fragility of human life, the miseries of hunger and cold, the feel of pleasures, happiness, security that its policies can indeed promote or  frustrate.  More discussion of the Common Good, and the contribution of law and lawyers to it, would seem all the more essential, should we concede, which perhaps we should, the strength of the case for a constitutional diet.

 

 

1

The “Missing Jurisprudence”

It is a great honor to participate in this online symposium, discussing Robin West’s Normative Jurisprudence: An Introduction. Last month, I was delighted to participate in an event at Georgetown University Law Center, discussing this important and groundbreaking work.

At that event, I was asked to summarize and comment upon Professor West’s first chapter, “Revitalizing Natural Law.”  (Mark Murphy, whose comments were posted yesterday, presented on the same panel and offered an illuminating commentary on Chapter 1 and natural law methodology generally.)

In this first of two posts, based on my comments at the Georgetown event, I will offer a partial summary of Chapter 1 of the book and comment on the aims of Professor West’s project.

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Professor West’s principal thesis in Chapter 1 is that American liberal and progressive jurisprudence has, to its own detriment, failed to take up the questions that ground the natural law tradition: namely, “What is the common good that law ought to promote?” and “How can law and legal systems best serve the common good?”  This failure has created what Professor West calls a “missing jurisprudence”:  that is, a liberal or progressive jurisprudence that takes natural law concerns seriously.

So… what would be the practical effect of infusing a natural law inquiry into a progressive jurisprudence?  How would the focus of this heretofore “missing jurisprudence” differ from that of the progressive jurisprudence we currently have? What, in other words, is the pay-off for developing a progressive natural law jurisprudence?

According to Professor West, the pay-off is six-fold:

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0

Moral Deliberation and Politics

Yesterday I wrote about one of the few cases in the federal courts that make a claim that there is a constitutional right to marry. Today, I’m going to talk about an argument made in more federal courts about the
Defense of Marriage Act (“DOMA”).  One amicus brief, filed by the Attorneys General of what most people would consider “red” states, offers an almost perfect example of what Robin describes in the 2nd Section of her book.  Robin argues, in
part, that the bastardization of legal positivism has led to the eradication of moral discourse in law.  There is a clear tendency in the legal academy to treat the Constitution as one with our collective moral compass.  Whether something is
immoral reduces to a question of whether it is constitutional and if the constitution is not equipped to answer a question, well then, it is not a proper subject of legal analysis.

This is exactly the argument the state Attorneys General make in their briefs in Golinisky v. OPM  (the 9th Circuit DOMA challenge) and Windsor v. BLAG (the 2nd Circuit DOMA challenge).  They argue, using Roe v. Wade as their primary example, that when courts inject rights protection into moral discussions about which there is disagreement, they foment deep and often intransigent discord.  Moral discussions, they argue, belong to the political process, not the legal process.
It is through politics that we can resolve, or come to some sort of equilibrium on, our differing views of morality.

It is important to note that this argument makes no sense in the context of the DOMA challenges because those challenges do not ask the federal government to dislodge any state’s policy with regard to same-sex marriage.  Striking
down DOMA would not stifle intrastate moral discussions about the nature of marriage and if anything DOMA does stifle interstate moral discussion about the nature of marriage.   The DOMA challenges argue only that the
federal government should not treat married people equally. The states are still free to set whatever marriage policy they want.  What is striking about the Attorneys’ General argument though is that it places law and morality in opposition and says that politics, not law, is the forum for moral discussion.

The Attorney Generals suggest that because marriage is a moral issue it should not be constitutionalized. The rancor that follows the constitutionalization of moral issues is destructive.   Several progressive writers (most of whom
are quoted by the conservative Attorneys General) have made this point in one form or another. It rings true to many of us and parallels much of what Robin argues in Part II.

Roe was so divisive because it reduced hard moral questions to an apparently straight-forward incantation of individual rights.  In doing so it not only stifled states’ abilities to formulate separate moral approaches to the problem of unwanted
pregnancies, it suggested that the moral problems were not that hard because they could be reduced to questions of individual rights.   (The Attorneys General do not make this point nearly as well as Robin does, but they are trying to make her point, I believe.) People feel disempowered and de-moralized when the Supreme Court reduces hard questions to individual rights. When corporations have speech rights, those interested in grappling with the morality of money in politics have no place to deliberate.  If women have an absolute right to control their own body (which they don’t; Roe provides a far more limited freedom) then those concerned about whether the life of the fetus has any moral weight have
no place to deliberate.  The Attorneys General and Robin suggest that the moral deliberation stifled by the rights based approach to moral questions is problematic.  Many people agree with that.

Where the Attorneys General go next, however familiar, is the crux of what Robin critiques in Part II.    The Attorneys General go next to politics.  The trajectory goes something like this:  Constitutional deliberation (and decision-making) is an inferior form of moral deliberation (and decision-making) therefore we must rely on the political process.  Why therefore? says Robin.  What about other forms of legal deliberation?  Why have legal scholars failed to incorporate more moral deliberation into non-Constitutional arguments.  Isn’t there a way to talk about same sex marriage and abortion in a manner that might suggest they are good, or not bad,  without resorting to the unsatisfying rubric of individual rights.  What if the red state opponents of same sex marriage had to counter arguments that suggested that same sex marriage was morally good, regardless of whether it was protected in the Constitution?  Wouldn’t we be better off with a richer legal
discussion and more potential for real moral deliberation in that case.  However prevalent the lawyer jokes, the political process is not held in much esteem these days either.  Why do we let moral questions that might fall
outside the rubric of individual rights be deliberated only in the cesspool of politics?

4

Normative Jurisprudence and Cover’s “Obligation: A Jewish Jurisprudence of the Social Order”

My reading of Normative Jurisprudence coincided with a re-reading of one of my all-time favorite pieces, Robert Cover’s Obligation: A Jewish Jurisprudence of the Social Order (it is included in the wonderful reader by Howard Lesnick, Religion in Legal Thought and Practice that I assign for my “Religion and the Work of a Lawyer Seminar”).

In this very short essay, Cover opens up the categories of jurisprudence to recognize the integrity of religious systems of thought and the contribution that they can bring precisely in this integrity.  Asked to reflect on Judaism and human rights, he has the courage to say: “the categories are wrong”—because “Judaism has its own categories for expressing through law the worth and dignity of each human being.”  In his analysis, discussions about jurisprudence do not need to be stuffed into, or reduced to, the categories and frameworks of philosophical liberalism.  Within the field of jurisprudence, there is space to explore other “fundamental words” and the “fundamental stories” from which those words receive their force and meaning.

As he tells the “stories” behind two different key words, “rights” and “mitzvah” (obligation), Cover sets an appreciative, conversational tone.  Because each system of rhetoric has a differently “loaded, evocative edge,” each goes to the nub of different problems.  Each has strengths and weaknesses, but there is room and need for both—“Sinai and social contract both have their place.”

He concludes with a reflection on where the “loaded, evocative edge” is in his own personal and religious experience.  Scanning his own “privileged position” and the blessings in his own life, Cover concludes “it seems to me that the rhetoric of obligation speaks more sharply to me than that of rights.”

With Cover’s piece in the background, first a rhetorical appreciation for Robin’s work:  to me, her Normative Jurisprudence project has “feel” similar to Cover’s essay – a capacity to appreciate and engage the depth of common key questions, while at the same time respecting profound differences, and also realizing that systems of thought can converse without polarizing or collapsing into each other.

Second, a question about categories and frameworks, in light of the project “to develop a liberal and progressive natural law jurisprudence” (57): Considering Robin’s concerns about the moral obligations of legislators, and the question of what a legislator ought to do with the lawmaking power that one has (“We do not have a way of even asking, let along answering, what law that we currently lack legislators might have a positive moral duty to enact”) (37) – at what point might these kinds of questions and concerns in some sense push the project off the map of what is “liberal”?

Amy Uelmen

1

Normative Jurisprudence and Catholic Social Thought

I’d like to start with appreciation not only for Robin West’s analysis but for the open and inviting tone with which she engages theorists across the political spectrum.  She invites progressive engagement with ethical natural law’s concerns with “what the law should be, what our ideals should be, how those ideals relate to our own understanding of both human nature and the human good, and how or whether actual law can be brought into alignment with that ideal,” – a conversation in which “conservatives and libertarians are already engaged.” (14)

Progressives, she submits, should get over their “squeamishness” (12), and seriously engage a movement that has been “the home of profoundly conservative and even fringe conservative claims” (15) – even if “the answers they have produced over the past one hundred years have not been attractive or conducive to liberal sensibilities” (16)  Her analysis of the ethical natural law current focuses for the most part on the work of influential legal theorists such as John Finnis and Robert George, whose work has been widely discussed also given the current political focus on questions of sexual relationships and ethics.

I’ll grant that the work of these authors is among the most developed in legal theory, and explicitly identified with “natural law”; and that current debates about sexual ethics are urgently important for the body politic, and for legal scholars in particular.  But given the scope of Robin’s important project – the hope to beef up substantive discussions about the extent to which law can align with our ideals about human nature and the human good – and to engage these questions “across the political spectrum” (16), when it comes to characterizing the Catholic intellectual tradition, it might be helpful to widen the circle of conversation partners.

I’d like to suggest that among scholars working this current of thought, conversations about law, human nature and the good reside not only in “the social conservative (and occasionally libertarian) right” (16) – but they run the full gamut of the political spectrum.  Many of the themes that Robin identifies as important for the normative jurisprudence project – human anthropology, human flourishing, and the relational nature of human experience, and consequently, the limitations of myopic economic analysis – have all been the subject of in-depth reflection in which the substantive content of the good is debated vigorously – often resolving in different ways the creative tensions between the Catholic social thought principles (e.g., subsidiarity, solidarity, private property and the universal destination of goods, and the common good).  In some applications, many of the answers have been attractive to liberal sensibilities.

The left-right contours of the debates over how to interpret and implement Benedict XVI’s 2009 letter on the economy, Caritas in veritate, are a good example of how discussions about the common good in labor relations, corporate structures, community economic development, and protection of the environment, are aligned with varying political leanings.

In her chapter on Legal Positivism, Robin quotes Matt Adler’s lament that lawyers do not pay enough attention to developments in academic moral philosophy, and she sets out a wonderfully thought provoking description of how lawyers reflexively shy away from moral argumentation regarding law (103-104).  I realize that my proposal to expand the interdisciplinary dialogue to include moral theology invites considerable complexity – and that especially in their contributions to legal theory, Catholic intellectuals may need to do a better job “translating” their presuppositions and the foundations of Catholic social thought framework.  But I do believe that it would bring an extremely rich and multi-layered contribution to discussions of how discussion of how social structures, including law, might align with a substantive conception of the good.

Amy Uelmen

2

Normative Jurisprudence and Family Law

Thank you for the opportunity to participate in this symposium on Robin’s fascinating new book, Normative Jurisprudence. The implications of Robin’s arguments reach across the law school curriculum and beyond. For purposes of this post, I would like to draw some connections between Robin’s work and family law.  Normative Jurisprudence can help us better understand how the law regulates the parent-child relationship.

First, Robin argues that the state frequently provides rights in ways that entrench existing power hierarchies, even as rights discourse purports to be liberating for all. Consider parental rights from this perspective. Many courts celebrate the rights they give to parents in sweeping terms, but Robin’s work can help us see how the specific rights that parents receive are often designed with privileged rather than poor families in mind. For instance, the Supreme Court famously declared in Pierce v. Society of Sisters (1925) that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” This declaration appeared in a decision holding that parents have a constitutional right to send their children to private schools. In theory, that right extends to poor parents as much as wealthy ones. In reality, poor parents have little means of affording private education.

Second, Robin argues that legal discourse prioritizing rights can actually obscure questions related to welfare. Examining the parent-child relationship through this frame is also illuminating. Poor parents may have a formal right to send their children to private school, but focusing on this right can obscure a more pressing issue that poor parents confront—the inadequacy of many public schools. Similarly, poor parents have constitutionalized procedural protections before the state takes custody of their children, but the provision of these rights can obscure how poor parents have no right to access the safe housing, adequate food, and other resources that children need to thrive. Indeed, the welfare system that exists for poor parents and children increasingly disavows the idea that the poor might have an entitlement to the basic means of subsistence. Instead, welfare programs provide meager benefits at the discretion of legislatures and routinely subject poor parents who receive these benefits to investigatory, instrumental, and interventionist state regulation.

Robin also notes how the law often treats the fact that people have consented to a legal regime as a reason to shield that regime from further critical scrutiny. The legal regulation of poor families starkly illustrates the limits of relying on consent. In theory, poor parents “agree” to the harsh and rights-denying terms of welfare programs as a condition of receiving aid, but in practice impoverished parents have few alternatives but to consent. Consider family cap laws in the Temporary Assistance for Needy Families (TANF) program, a leading federal-state welfare program.

Family caps, which at least nineteen states currently impose in some form, deny or limit TANF benefits to children conceived while their parents are already receiving TANF. For example, New Jersey’s TANF program provides that a family of two will ordinarily receive up to $322 a month, a family of three will ordinarily receive up to $424 a month, and a family of four will ordinarily receive up to $488 a month. These scant benefits are unlikely to cover a family’s basic needs, and New Jersey’s family cap limits them even further. New Jersey’s family cap means that a family that enters TANF with two people is still limited to just $322 a month if another child is born, $102 less than New Jersey itself otherwise thinks necessary for three people’s subsistence. A family that enters TANF with three people is still limited to just $424 a month if another child is born, $64 less than New Jersey otherwise thinks necessary for four people’s subsidence.

Family cap laws help illustrate how rights to freedom from state intervention do not help parents secure the necessary resources to raise their children. The benefits the TANF program offers are extraordinarily low and even lower if poor parents act in ways the state disfavors by having additional children. Poor parents have rights, but not to welfare. And when impoverished parents seek welfare, states feel free to impose extraordinary pressure on parents’ most personal decisions. In practice, rights talk often provides little protection for the most vulnerable.

2

West’s Normative Jurisprudence and Law School Reform

I’d also like to extend my gratitude to Robin West for writing such an important book and to Danielle Citron and Concurring Opinions for hosting this terrific online symposium.  As a former student of Robin’s and now law professor myself, I have deeply appreciated her work and mentorship, and am delighted to take part in this dialogue dedicated to her latest project.

In Normative Jurisprudence, Robin makes a compelling argument for a renewed scholarly legal discourse that breaks free of the confines of what law is and has been, and takes up the essential question of what law ought to be in light of what justice requires.  We should engage in “deep criticism of law and legalism and legal ideals” and not simply study, or work within, the existing legal framework and system, which for legal scholars has been court-centered and therefore constrained by past judicial pronouncements.  She urges the legal academy to move beyond this past-dependent focus and instead take on the more forward-looking and creative task of exploring legislative and regulatory avenues to advance what we identify as the common good.  Speaking expressively yet directly, she encourages us to give attention and voice to this much-needed type of examination.  In one such passage, she asserts:

“. . . The absence of either philosophical debate over the nature of the good, or its implications for the value of legislative initiatives or regulatory regimes governing various areas of social life, in law schools and in legal scholarship generally, is striking.  Law schools study court decisions, largely on the basis of other court decisions, whereas other branches of the university study both legislative initiatives and competing conceptions of the good they ought to further.  This is an odd division of labor.  There is no reason other than inertia that law schools should not be central to debates over the value of proposed or existing legislation, as well as central to debates over the meaning and value of competing understandings of the good against which those proposals might be judged.  Law scholars, presumably, would have much to contribute: lawyers and legal scholars know a thing or two about law, about what it does well, where it fails, and why.  That knowledge of law and its value is oddly cabined, unengaged with debates over the possibilities of law’s contribution toward the quality of public life.”

As I see it, Robin’s challenge to law schools is particularly timely in light of the curricular revisions many schools are making in response to the changing legal economy.  To best equip students to be lawyers and problem-solvers in the 21st century, it is becoming increasingly clear that law schools need to prepare their students to do more than just adjudicative analysis.  Students will need a wider understanding of law and its uses and tools in various realms, and this training, I believe, can and should begin in the classroom.  As law schools’ raison d’être evolves, so too should our legal commitments and methods, and this rethinking should likewise extend to our scholarship.

We as legal academics, then, can help shed light on matters in need of sociolegal reform, whether or not we see ourselves as directly participating in the movement.  Although Brian Bix understandably wonders whether legal academics have the attributes and skills to best advance social justice causes, it seems to me that law professors, even if not especially activist-inclined, through their research and teaching help provide the building blocks for those who may be more so.  Legal scholars whose expertise tends to focus on deconstructing theories and unpacking doctrine certainly contribute by helping to light the spark for others who then reconstruct them toward change.  It is engagement in this kind of conversation, much like the one we are having in this online symposium, that plants the seeds for further thought and suggests different paths for reform.  The enterprise is ultimately a collective rather than solo one, but it builds on the efforts of each of us.

 

3

Genderless Marriage

Justa quick response to Deborah Hellman -  I appreciate your kind words and I recognize the  difficulties in forging some kind of consensus when people have such differing views on the nature of the good and human flourishing, but the
assumption that equality doctrine or equality principles can ensure that justice be done because we can all agree that  people need to be treated with equal respect fails to understand  the most basic argument that opponents of same sex marriage make.   To those who have differing opinions than me (and probably most readers of this blog) about  the nature of the good with regard to marriage, it makes no sense to say same sex “unions” should be treated the same  as heterosexual “unions.”  To many opponents of same sex marriage, the essence of the union is its heterosexual nature.  The fundamental debate over marriage in this country is, for many, a disagreement about whether the phrase “genderless marriage” is an oxymoron, or an ideal for which we all should be striving. To assume that you can elide that disagreement by simply saying all marriages are “unions” is to assume away the basic disagreement about the essence of marriage.

1

Does a theory of the good belong in the constitution?

I want to start by thanking both Danielle Citron and the folks at Concurring Opinions for hosting this robust and interesting discussion and Robin West for writing such an interesting and provocative book, a book that fills a gap in jurisprudential thinking and asks us to explore both what we, as law professors, do and what we think the role of both law and legal scholarship should be.

I want to join this discussion by engaging with both the first part of Robin’s book and with the interesting post by Katherine Baker, which looks the District Court and 9th Circuit opinions in Perry v. Schwarzenegger, the case addressing whether California’s Prop 8 violates either the due process or the equal protection clauses of the federal Constitution. The comparison of the two opinions, as Baker explains, provides a window into the position Robin proposes. Robin implores us to adopt a more substantive jurisprudence, one that asks about the nature of the Common Good, or the good for human beings and how the law can best promote it. As Baker rightly points out, the District Court opinion in Perry adopts a position on such a substantive question. In striking down Prop 8, Judge Vaughn Walker finds that gay couples have a liberty-based right to marry. However, Prop 8 would only deny that right to gays and lesbians if the right to marry includes the right to marry a person of the same sex, as well as a person of the opposite sex. In order to reach that result, Walker must decide what marriage is, rightly conceived. He does. In his view marriage is, at its root, a “union of equals.” While this view is underdeveloped, it is the sort of inquiry Robin (and Baker) endorse

The 9th Circuit, by contrast, rests its opinion reaching the same result on a classically liberal view – in the Dworkinian vein – that Prop 8 violates the Constitutional guarantee of equal protection because Prop 8 fails to treat gay men and lesbians as equal citizens. While Baker is right that the specific rationale the 9th Circuit adopted relied on the fact that rights were first given then taken away, and is thus of limited application, one could easily imagine a broader rationale along the same liberal lines. Denying gay men and lesbians the right to marry the person they choose expresses unequal regard for their interests and demeans them by stamping their unions as inferior, or something like that. This equality-based rationale makes no statement about what the nature or good of marriage is or how it contributes to human flourishing. The question posed by the contrast between these two ways of addressing this issue is this: should we see our constitution as including a substantive view of marriage?

In my view we should not, which is why I am far more sympathetic to the jurisprudential natural law theorists Robin critiques. The impulse or starting place of this liberalism is the recognition of the deep pluralism of our society. Given that we are a people with vastly different views about the sorts of questions Robin asks us to engage with, what should our laws look like so that we fairly and respectfully treat people with different substantive moral views? At least as to questions of constitutional law, I think the traditional liberals have it right. Our constitutional principles ought to be ones that people with different substantive moral views about the nature of the good and human flourishing can all accept. In my view, the 9th Circuit’s conclusion that Prop 8 violates the Constitution because it denigrates gays and lesbians is such a conclusion precisely because we can all accept the principle that law must treat each of us with equal respect.

As a matter of Constitutional law, I prefer the thinness of the position she critiques. However, I agree with Robin that a jurisprudence that has been focused on constitutional law and adjudication has neglected questions about the duties of legislators and the development of an argument about how law can serve the real interests of people rather than merely satisfy their preferences. She is certainly right to challenge us along these lines.