Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts
|
Sunday, May 18, 2003
JB
Good Judging and "Following the Rules Laid Down."
Matthew Yglesias agrees with Larry Solum about the following views of good judging:
This sounds like a nice algorithm for judicial decisionmaking, but I can't sign on to it. It seems to me insufficiently attentive to the historical realties that shape American constitutional development, and more to the point, it gives no account of the sort of judging that, in hindsight, we are most proud of as Americans.
Before I begin, I should note that there's something odd about Larry's formula for good judging. It's not at all clear to me why precedent trumps "plain meaning," why both of these trump structural considerations, and why all of them together trump original understandings. If there's an argument here, I don't see what it is. As Larry probably knows, Philip Bobbitt (and Dick Fallon) have argued fairly persuasively that this sort of lexical preference for some modalities of constitutional interpretation over others is unworkable. But I digress.
Let me take a simple example. I assume for purposes of discussion that Larry (and Matthew, for that matter) would agree that women should not be subjected to discrimination by the states or the federal government. In fact, the line of sex equality decisions that begins with Reed v. Reed in 1971 is something that I think most federal judicial nominees would be expected to agree with; or to put it another way, any judicial nominees who forthrightly stated that sex discrimination was constitutional would likely never be confirmed. I would go further: these precedents are something that we can and should be proud of; they demonstrate that we have become a freer, more equal, more tolerant, and more democratic society than we were before. To me they are not examples of bad judging, but examples of good judging, and if a theory of judging is inconsistent with them, I think that is a reason to be suspicious of the theory.
Now one can easily justify following these cases today because they are precedents. But the question I want to ask is whether the cases were originally correctly decided in the first place. That is, could someone who holds the views that Larry does about good judging consistently come out the "right" way on the sex discrimination issue? Frankly, I don't think it's possible. I don't think one can make a serious case that the 1970's sex discrimination cases are consistent with Larry's notion of what good judging is, at least if the point of good judging is to "follow the rules laid down." The precedents, in fact, were pretty clear: they all pointed in the opposite direction. The Court had decided in cases like Goesart and Hoyt that women were not entitled to be free from sex discrimination except in cases of voting covered by the Ninteenth Amendment. All other discrimination against women was to be subject to rational basis scrutiny, which means that almost all of it was to be upheld. Indeed, the key case that ushers in the 1937 revolution (don't get me started on whether *that* is consistent with previous precedents), West Coast Hotel v. Parrish, involved a Washington law that required minimum wages for women workers but not male workers. That is clearly sex discrimination, and the Court thought nothing of it. (Note that this is not a mere oversight. Adkins v. Children's Hospital, the case that West Coast Hotel overruled in 1937, emphasized the equal ability of men and women to make economic decisions as a reason for striking down a similar minimum wage law).
Reed v. Reed, to be sure, does make obeisance to the rational basis standard, but it applies it very differently from other rational basis cases in the post-1937 period, and it is generally understood to have been a disguised form of heightened scrutiny that was made official in Frontiero v. Richardson and Craig v. Boren. Reed v. Reed just can't be understood as "following the rules laid down," and certainly the next two cases can't.
My point is that if one just followed the "rules laid down," (Larry's interpretation of this phrase, not mine, I should add) you would never get to modern sex equality doctrine. Morever, because the "rules laid down" are clear, according to Larry's formula, you would never go on to ask about the "plain meaning" of the text, structure, and original understanding. However, let's go through the exercise just for fun.
Does the plain meaning of the equal protection clause mean that sex discrimination is unconstitutional? Certainly very few people thought so before 1970. I guess it all depends on what you mean by "equal protection of the laws," but the difficulty in figuring this out suggests that the words don't have a plain meaning that decides this particular question. (Of course, this raises another problem with Larry's hierarchy, the fact that he elevates the "plain meaning" of the constitutional text over the original understanding of its meaning. I don't see why one would do this. I can understand why one would want to consider textual arguments of all sorts-- including appeals to the larger abstract political principles behind the text-- as superior in many cases to originalist arguments, but that is not the same thing as Larry's suggestion.) In any case, if I were to ask what is the plain meaning of "equal protection," I would have a hard time distinguishing sex discrimination from discrimination against debt adjusters (Ferguson v. Skrupa) or discrimination between opticians and optometrists (Williamson v. Lee Optical). If you throw in a very elaborate political theory, you might get some traction on these questions, but that's not an appeal to "plain meaning," it's an appeal to the best political theory for deciding the case. (Ronald Dworkin, call your answering service please).
OK, well what about constitutional structure? Is there any structural reason to think that sex discrimination is unconstitutional? I'm afraid there's not. The Nineteenth Amendment gives women the right to vote, and they are technically a majority, (not a discrete and insular minority) so presumably they can already vote for candidates who would support women's rights. And the "plain meaning" of the Nineteenth Amendment (there's that phrase again) only extends to voting, not to all of the other forms of sex discrimination that the states and the federal government might impose. (By the way, if you think that there are structural reasons why women are kept in positions of social inequality, bully for you, that makes you an antisubordination theorist, just like me. However, I'm afraid this is not what constitutional scholars mean by "structural argument." Sociological speculation, for most of them, is "policy" analysis, the exact opposite of legal reasoning and following the rules laid down.).
That brings us to original understanding. I'm afraid that the original understanding is not very good for egalitarians generally, because, not to put to fine a point on it, the Framers of the 1787 Constitution (and the Fourteenth Amendment) were, how shall I say, men of their times. The Framers of the Fourteenth Amendment pretty clearly did not wish to alter the common law coverture rules, which meant that married women surrendered virtually all of their rights upon marriage. Moreover, the Framers of the Fourteenth Amendment did not believe that women should have political equality with men-- the right to vote, hold political office, or serve on juries. This is reflected in Section 2 of the 14th Amendment, which specifically refers to male voters. (This was changed by the Nineteenth Amendment, but the basic presumption that sex difference could be reflected in law was not). Furthermore, it's not, as some have speculated, that the question of quality for women was an oversight, that it was an issue that the Framers didn't get around to considering. In fact the suffragists were crying loud and long for equal rights for women at this point in American history. The framers of the Fourteenth Amendment heard their arguments, considered them, and rejected them; they simply didn't think that women should be equal to men in all (or even most) respects. Heck, they didn't think that blacks should be equal in all respects either.
OK, well what about Larry's last category, "general default rules that minimize their own discretion and maximize the predictability and certainty of the law?" I can't imagine this would justify overturning Goesart (decided in 1948) and Hoyt (decided only nine years before Reed, in 1961) and creating a new category of quasi-suspect classifications (Yes, that's what they are called in Supreme Court jurisprudence). If ever there were an example of judicial discretion and judicial activism, the Burger Court's sex equality jurisprudence is it. Indeed, as Justice Powell pointed out, there was a very good reason not to decide these cases: Congress had submitted the ERA to the states, and if the amendment had gone through what the Court did would be superflous. And the fact that the ERA was not ratified suggests that what the Court did was particularly inconsistent with principles of sound judicial restraint.
So it seems that if judges did what Larry wanted them to do, they would never have decided the sex equality cases. My view, by contrast, is that they did the right thing, and that we should be proud of what they did, and that if the Court had not created sex equality jurisprudence in the 1970's courts should do it today. That is to say, I reject the idea that Larry's account of good judging gets anywhere close to what we regard in hindsight as an important and valuable achievement of the Burger Court years. (Indeed, if there is a complaint to make about the Court's sex equality jurisprudence, it is that it was too timid, too doctrinally bound, and that it based itself too closely on previous reasoning about race and classifications based on race rather than recognizing the important differences between forms of racial subordination and sexual inequality.)
Does all of this mean that I don't think that the Supreme Court should decide cases according to law? Of course not. It's simply that I have a much more capacious view about what decision according to law is. It's not just following the rules laid down, and it's not just moving from modality to modality in hierarchical order. Judgment according to law is a matter of, well, judgment. And that judgment, particularly in the big cases, but also in the small ones, inevitably involves considerations of larger political principle, what I have called "high" politics.
The Supreme Court, and the federal courts generally, work in conversation with the political branches, not in isolation from them. Courts change the content of constitutional doctrines in response to social movement contestation and changing social mores. It's pretty clear that decision according to precedent does not explain the sex equality cases. The reasons lie elsewhere: in the Civil Rights Act of 1964 which required sex equality in employment, in the Civil Rights Movement of the 1950's and 1960's, and above all in the second wave of American feminism, which succeeded, in a very short time, in changing most Americans' attitudes about what political equality meant. Under this account, the fact that Congress had passed the ERA and submitted it to the states was a clear signal that the meaning of political equality had changed in the country, and therefore the Court was authorized to overrule its previous precedents and bring the Constitution in line with the times. Indeed, this is exactly what Justice White said to his colleagues in the conference notes on Frontiero v. Richardson. That is to say, although the standard story is that judging is supposed to be independent of politics, nothing could be further from the truth. Judgments of political principle are inextricable from legal interpretation of the Constitution, particularly its abstract generalities like equal protection, due process, and free speech. That is often true of decisions that people despise, but more importantly, it is also true of decisions, that, in retrospect, we regard as the greatest achievements of the courts, decisions that have made our Constitution the charter of liberty and equality worthy of our respect and admiration. Our Constitution is great not because it was great when it left the hands of its Framers; it has become great, and worthy of our admiration, because of what happened to it afterward, because of continuous political struggles over the larger meanings of liberty and equality that were eventually assimilated and codified by courts. That is how a Constitution originally designed to protect aristocratic white male property owners gradually was transformed into a charter of freedom.
The account that Larry offers of good judging is internalist: it tries to identify features of sound legal argument and juridical practice that are isolated from what is happening in the political world outside the courts. I think that every such account of judging is doomed to failure, not because the judicial virtues he identifies are unimportant, but because they are incomplete, and because they don't capture the historical realities of constitutional change in the United States. The more one studies the history of constitutional doctrine, the more one recognizes that the work of judges, although formally independent from politics, is never practically isolated from political contestation about the basic values of American life. That connection, which is sometimes hidden, and sometimes overt, is the by far the most important source of constitutional change, and, if I may say so, of constitutional legitimacy as well.
Comments:
شركة رش مبيدات بخميس مشيط
شركة رش مبيدات بالباحة شركة رش مبيدات بأبها شركة رش مبيدات بنجران شركة رش مبيدات بعرعر شركة رش مبيدات بعسير شركة رش مبيدات بالخبر شركة رش مبيدات بالطائف شركة رش مبيدات ببريدة شركة رش مبيدات بجازان شركة رش مبيدات بينبع شركة رش مبيدات بحائل شركة رش مبيدات بالجبيل شركة رش مبيدات بالظهران شركة رش مبيدات بتبوك شركة رش مبيدات بالدودامي شركة رش مبيدات بالهفوف شركة رش مبيدات بضرماء شركة رش مبيدات بعنيزة شركة رش مبيدات بالقصيم شركة رش مبيدات بالرس شركة رش مبيدات بالافلاج شركة رش مبيدات بالزلفي شركة رش مبيدات بالقطيف شركة رش مبيدات بالدلم شركة رش مبيدات بحفر الباطن شركة رش مبيدات بالمزاحمية شركة رش مبيدات بالمجمعة شركة رش مبيدات بوادي الدواسر شركة رش مبيدات ببقيق
شركة رش مبيدات بسكاكا
شركة رش مبيدات بشقراء شركة رش مبيدات بحوطة بني تميم شركة رش مبيدات بخيبر شركة رش مبيدات بالمذنب شركة رش مبيدات بثادق شركة رش مبيدات بالدرعية شركة رش مبيدات بالقويعية شركة رش مبيدات بالغاط شركة رش مبيدات بعفيف شركة رش مبيدات جنوب الرياض شركة رش مبيدات شمال الرياض شركة رش مبيدات وسط الرياض شركة رش مبيدات غرب الرياض شركة رش مبيدات شرق الرياض شركة رش مبيدات بحريملاء شركة رش مبيدات بالرماح شركة رش مبيدات بظلم شركة رش مبيدات برأس تنورة شركة رش مبيدات بالحناكية شركة رش مبيدات بالمويه شركة رش مبيدات بالغزالة شركة رش مبيدات بينبع البحر شركة رش مبيدات بالعزيزية
I know it's not easy for you, living this life, but try to remember, always try to remember, you're not the only one with troubles.
Post a Comment
Agen Judi Online Terpercaya
|
Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |