Over on the Legal Workshop, Gerald Ratner Distinguished Service Professor of Law David Strauss has posted "Modernization and Lawlessness: A Reply to Professor Mitchell" as a response to Jonathan F. Mitchell's critique of Strauss' article "The Modernizing Mission of Judicial Review."An excerpt is reposted below, and you can read the full article here.
Professor Mitchell’s characteristically thoughtful and incisive comment makes many important points.1 He is right in saying that Atkins v Virginia2 and Thompson v Oklahoma3 fit the modernization model better than Roper v Simmons4 or Kennedy v Louisiana.5 I also agree with Professor Mitchell that a modernization approach gives political actors an incentive to behave strategically in (among others) the way he suggests-to try artificially to create or resist a “trend.” And it is hard to argue with his point that the Court’s initial treatment of the so-called partial birth abortion issue, in Stenberg v Carhart,6 did not seem to reflect sensitivity to popular opinion. More generally, the Court certainly has not been consistent in applying a modernization approach, even in the areas I mention. Modernization remains mostly an unselfconscious approach, I believe, and so it is not surprising that there are many cases that cannot be squared with it.
Professor Mitchell’s main argument, though, is that in many of its capital punishment and substantive due process decisions, the Court is not responding to trends in public opinion but is instead just indulging its own ideological preferences or policy views. This argument, I think, raises some complicated issues. It may be worth distinguishing two questions. The first is: to what extent is the Court ruling according to the law, as opposed to ruling simply according to the justices’ views? In controversial cases, that will often be quite a difficult question to answer, for both empirical and conceptual reasons. The second question is: to whatever extent the justices are ruling according to the law (and not their policy views), where are they getting the law from? Are they getting it from the Framers’ understandings, or precedent, or tradition, or something else?
Jack Balkin’s insightful and fair-minded response raises several interesting issues.
1. First, the “levels of generality” problem. The “original expected applications” originalists have a solution to this problem, in theory. They would say that a provision should be construed at the level of generality that was originally understood (or that the Framers intended, or whatever). So: can the Cruel and Unusual Punishment Clause be interpreted to forbid capital punishment? That would depend on whether the original understanding was that the Clause was to be interpreted dynamically; and if so, how dynamically. Specifically, was the original understanding that the Clause should be interpreted dynamically enough to permit “cruel and unusual” to be extended to cover capital punishment at some point in the future? (And I guess the further question, for this kind of originalist, would be whether we are now at that point.)
Of course, in practice, questions like these will almost never be honestly answerable. Even if they were answerable, the ultimate question, about being ruled by dead people, remains. But in principle, “original expected application” originalism tells us how to deal with the levels of generality problem.
But if you’re not an “original expected application” originalist, as Jack is not, then I think you’re stuck. You’re not going to look for the level of generality in the original understandings (if you did, you’d be an original expected application person); you’re going to get the appropriate level of generality from somewhere else. The somewhere else might be precedent, or it might be morality, or some combination of those two, or something else.
The language of the provision, and perhaps the historical materials, may place an outer bound on what values and principles you can attribute to the provision, although I’m not even sure about that: the idea that the Equal Protection Clause mandates “one person, one vote” became settled law pretty quickly in the face of overwhelming historical and textual material to the contrary. But in any event, the legal conclusion will be driven by something other than the original understandings, however defined.
2. For that reason, Jack is right on the money in his characterization of our disagreement. I do not agree with his position that common law development is a means of “implementing and applying constitutional values.” “Implementing and applying” suggest that the big decisions were made by the people who adopted the constitutional provision in question, and that we, today, are just the servants, the implementers. I don’t think that’s an accurate, or attractive, account of American constitutional law.
I think constitutional law is better described as a process of resolving disputed issues using the tools of the common lawyer—precedent and past practice, which we use out of a sense of intellectual humility and also because of the importance of stability, coupled with essentially moral arguments of fairness and good policy. If we can get the Framers on our side, so much the better. But basically we are making the decisions, not implementing decisions made a century or more ago. (Jack asks why, on a common law account, we should pay any attention to the text, including what he calls the “hard wired” provisions. Those are very good questions; I’ve tried to answer them, at inordinate length, at 112 Yale L.J. 1717 (2003) (a draft of that article is here).
I should say in this connection that I totally agree with Jack about the importance of non-judicial constitutional lawmaking. But precedents are hugely important when, say, Congress and the President have a dispute over their respective prerogatives.
3. So far I haven’t said much about the specific concerns of liberals. Jack argues that his way of thinking about constitutional law provides resources that mine does not, particularly to groups that are trying to change the status quo. Again I think he is right, but for the reasons I’ve given, the resources are rhetorical. More to the point, though, small-c conservative rhetoric of the kind that progressives have been using in recent years is a pretty good weapon. That kind of conservative impulse runs deep in judges, and I think in citizens too.
Consider the constitutionality of affirmative action, for example. There is a very strong argument that the original understanding of the Fourteenth Amendment permitted affirmative action (and of course an extremely strong argument that nothing in the text of the Constitution or the original understandings forbids the federal government from engaging in affirmative action—or from discriminating against minorities). But outside the academy no one much seems to care about those originalist arguments. What does seem to persuade the Justice Kennedys and Justice O’Connors, along with innumerable business people and military officials whose political inclinations would otherwise make them opponents of affirmative action, is essentially a Burkean argument: that whatever the abstract objections to affirmative action, it has become a deeply rooted practice in American business, education, and government, and it works pretty well.
My hunch is that that is generally the more effective way for progressives to argue, when they can. If it is more effective sometimes to invoke the original understandings in some form (and sometimes, I’m sure, it will be more effective to do so), we should understand that we are making a rhetorical move. That’s not disreputable; it’s just not a legal argument.
4. Finally, a word on legitimacy. A few things in Jack’s account give me pause. First, I think legitimacy is a feature of an entire system, not just a constitution. In fact, things like the political culture of the governing class and the attitudes of one’s fellow citizens are almost certainly going to be more important, in determining the legitimacy of a system, than are formal constitutional principles, and probably more important than informal constitutional understandings, at least as long as those understandings fall within certain limits.
Second, I don’t think a common law or customary constitution poses any special problems of legitimacy. The problem of legitimacy doesn’t seem significantly different in Great Britain from what it is here.
Third, and related, Jack’s account of legitimacy seems to me a little too mystical. Jack’s point that the legitimacy of a system may depend on the future, not just the present—that’s a nice point. A system may be unacceptable now but still legitimate because of the prospect of change.
But I don’t think any of that has anything to do with faith, or that it “requires us to imagine the Constitution as . . . a joint project of many generations . . . that extends backward into the past and forward into the future.” The past might provide evidence of good or bad tendencies that will affect the legitimacy of the system; but I don’t see how that has anything to do with imagining the constitution as an intergenerational project. It is just a matter of collecting and weighing the evidence in order to figure out what the system is like today and will be in the future.
The same is true if the system is currently unacceptable, but you want to convince me that it is nonetheless legitimate because it will improve in the future. Suppose, for example, that there has been a military coup, and you are trying to persuade me to continue to support the government because, you say, the military will only stay long enough to clean up corruption and then will restore democratic civilian rule. If you want me to treat that government as legitimate, you are going to have to make a cold-blooded, rational argument about what will happen and when. I’m not going to be interested in conversations with ancestors or future people, and religious-sounding talk about faith and redemption will just make me suspicious.
I fear this is an inadequate treatment of the many interesting points Jack has made in his papers and in this and other blog posts; certainly there is much more to be discussed. Again let me thank him for this debate.
In two recent and very interesting articles (here and here), and in a number of blog posts (here, here, here, and here), Jack Balkin has argued that liberals should start being originalists. Other important scholars have taken the same position. I don’t think that’s a good idea, and I’m grateful to Jack for giving me the chance to debate him on our law school faculty’s blog and on his own blog.
There are at least two reasons why it’s bad idea for liberals to embrace originalism. The first is that originalism is not a good approach to constitutional law; in fact, I’m not sure it’s an approach to constitutional law at all, as opposed to a kind of rhetorical trope. It’s a way of invoking the authority of earlier generations for a position that is actually justified on other grounds. If that’s right, then no one, liberal or conservative, should be an originalist.
The second reason is that I think originalism may be, in its nature, illiberal. That’s because—I’m not sure of this, but I’m afraid it might be true—originalism relies on a kind of parochialism and American exceptionalism that liberals, especially, should reject.
1. “Originalism” can mean several different things. Jack is very careful in specifying the kind of originalism he has in mind. He says that what is binding is not the “original expected application” of a constitutional provision, but rather the “original meaning” of the text of the provision and the “principles that underlie the text.”
The difference can be illustrated with the Eighth Amendment’s prohibition against “cruel and unusual punishment.” It’s clear that when the Eighth Amendment was adopted, no one thought that it would outlaw capital punishment. The “original expected application” approach says that therefore capital punishment can’t be unconstitutional under the Eighth Amendment. Jack would proceed differently: he would say that the question is whether capital punishment is “cruel” according to the original meaning of that word and the principles underlying the prohibition. The answer to that question might be that capital punishment is indeed cruel and is therefore unconstitutional.
There are lots of problems with “original expected application” originalism, many of which can be seen by asking a question like: What was the original expected application of the First Amendment (adopted in 1791) to a law regulating indecency on the internet? (That might seem like an unfairly chosen example, given the spectacular newness of the internet, but I don’t think it’s unfair; it just makes some of the problems of originalism vivid.) But that’s not the form of originalism that Jack embraces—he’s quite critical of it—so I’ll leave it alone for now.
The problem with “text and principles” originalism of the kind Jack endorses is that it allows us to justify pretty much anything. I think it is a sophisticated iteration of what might be called the “levels of generality” maneuver. Here is how that maneuver works. Suppose you are trying to justify Brown v. Board of Education on originalist grounds. It’s pretty clear that when the Fourteenth Amendment was adopted, people did not think it made school segregation unconstitutional, pace my friend and former colleague Judge Michael McConnell. So if you’re an originalist, and you want to justify Brown, it looks like you have a problem.
But what if you recharacterize the original understanding, in a way that is no less accurate? Yes, they didn’t think they were outlawing school segregation. But they (the drafters or ratifiers or whoever the relevant group is) did think they were requiring racial equality with respect to certain important rights. If we conclude, today, that—contrary to the understanding in 1868—education is such a right, and segregation is inconsistent with equality, then, presto, Brown is a faithful—indeed mandated—implementation of the original understandings.
I think that is essentially what Jack has done in one of his papers, which argues that there is an originalist justification for a Fourteenth Amendment right to an abortion (and also, if I read him correctly, an originalist justification for Lawrence v. Texas, which invalidated laws forbidding same-sex sodomy). Of course no one in 1868 remotely thought that they were protecting abortion rights or gay rights. That was even more remote, by orders of magnitude, than invalidating racial segregation in schools. But the Fourteenth Amendment, Jack says, is about outlawing class- or caste-based legislation. And laws forbidding abortion constitute class- or caste-based discrimination against women. So we have an originalist justification for Roe v. Wade.
This is all OK as a matter of rhetoric—it’s fine to try to enlist the Framers on your side, if your cause is just—but I just think it is not a helpful way to address constitutional issues. I think what Jack has done is just to kick up the level of generality until he’s reconciled Roe and originalism. But what justifies the move up the ladder of generality, from “equality with respect to common law rights” (roughly, the central subject of discussion when section 1 of the Fourteenth Amendment was adopted), to “racial equality,” to “no caste or class legislation”? And why stop there: why not say that the Fourteenth Amendment is about equality and fairness, full stop, so that any laws that we consider unequal or unfair are unconstitutional?
There are two problems here, and I don’t think Jack’s key notions—“meaning” and “principles”—give us much help with either. One is the question of where to stop this ascent. But even if we knew that the right way to think about the Fourteenth Amendment is that it forbids class or caste legislation—not at a more specific or more general level—it seems to me that the judgment that some particular law constitutes caste or class legislation is one that we make on some other basis; and that basis is concealed by the invocation of originalism.
So: Why does the Fourteenth Amendment forbid anti-abortion laws, or discrimination against gays, or school segregation, but not the progressive income tax or rent control—laws that which can be (and are, by some) characterized as “class” legislation? Or, for that matter, why aren’t the Bush tax cuts unconstitutional because they were “class” legislation? Or maybe their repeal would be? Or perhaps the war in Iraq is unconstitutional because certain social and economic classes are so heavily represented in the front-line military? And so on.
There are answers to these questions, but I don’t see how you get them from originalism, however originalism is defined. You have to get them from somewhere else—whether you give “liberal” or “conservative” answers. My own view is that they come from an amalgam of precedent and normative reasoning that is characteristic of the common law, but that’s another subject. The main point is that I don’t see how the invocation of originalism helps us to analyze these issues, or to justify the positions we take. Something other than originalism is doing that work, and talking about originalism just obscures that fact."
2. I am less sure about my second argument, but if it is right, then it is more troubling, because it suggests that originalism is not just empty but maybe even pernicious. Thomas Jefferson posed a famous challenge to the use of written constitutions: essentially, that adhering to a constitution adopted by a previous generation is a form of irrational ancestor worship. I think there is a way around Jefferson’s objection in certain kinds of cases: sometimes, adhering to an old text, or even to original understandings, can be justified for reasons that have nothing to do with ancestor worship. For example, it is a good thing that we know how long a President’s term is and when he must leave office, and you don’t have to worship our ancestors (or even like them) to realize that it makes sense to rely on the Constitution to settle those matters.
But when you start to use old, abstractly-worded provisions of the Constitution to resolve highly controversial issues, then you have Jefferson’s problem. Why exactly, to choose a pressing example, should the attitudes that late-18th or mid-19th century people had about firearms determine an important issue of pubic policy in the incomparably different world of today? You can substitute any number of things for firearms in that question (“gender roles,” but also “jury trials”); it is not a liberal or conservative concern.
When originalists—liberal or conservative—try to answer questions like that, they usually, and I think unavoidably, start slipping back into ancestor worship. The central idea seems to be that we owe it to the earlier generations to maintain some kind of continuity with them. So there are invocations of “fidelity,” veneration of the text of the Constitution, talk about conversations among generations, assertions about American traditions—things like that.
This seems to me a troubling way to think about constitutional law, and it should be especially troubling for liberals. There should be room in our society for people who do not feel any affinity to American traditions and who do not especially want to be in a conversation with (someone else’s) ancestors. The decisions we make on matters of constitutional law will affect those people, and we ought to be able to give them an account of how we make those decisions that relies only on the demands of reason. Of course, any nation’s institutions will be, in significant part, the product of historical accident. But there are often sensible, functional reasons for accepting those accidental institutions. Once we get past those reasons and begin to rely on the distinctive American-ness of something as a justification, we run the risk of being parochial and exclusionary.
Jack has written eloquently and effectively about the dangers of what he calls “idolatry” in constitutional law, and I am certain he and I do not disagree in principle on this point. Also, Jack’s version of originalism allows a wide range for arguments based on reason alone—that’s why I question whether the originalism component is more than a rhetorical device. But I do wonder if even the invocation of originalist rhetoric is something that liberals, especially, should be wary of doing.
We haven't heard much in the last few days about the search of Representative Jefferson's congressional office. Undoubtedly negotiations are underway about what to do with the things seized during the search--they have been placed "under seal"-- and probably there will be some sort of compromise.
But the issue is pretty important, and, depending on the precedent set in this case, it will could certainly come up again. I think the consensus, in the immediate aftermath of the search, was that there was no plausible constitutional basis for the bipartisan outrage over the search of Rep. Jefferson’s office. I don't think I agree with that consensus. I wouldn't say that a Representative's (or Senator's) office should never be searched. But on the other hand it's not just a garden-variety search, and maybe it should be subject to stricter rules. Some thoughts: