an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Off the Wall and Into the Mainstream?, or "Here We Go Again"
One of the most interesting phenomena in constitutional law is the way in which ideas move from being "off the wall" (that is, basically "crazy") into being within the range of reasonable argument, and then into the mainstream. In my view we observed that process with the so-called "Article II" argument in Bush v. Gore -- the argument that the provision in the Constitution saying that presidential electors shall be chosen in the manner that the "Legislature" directed imposed non-trivial limits on the extent to which a state supreme court could provide meaning to the terms used in the statutes setting out how electors were to be chosen. Now endorsed by three justices, that argument has become the basis of the argument, "Of course there's a serious constitutional issue about whether the people of Colorado could by initiative rather than legislation set out how electors are to be chosen." (Actually, I think the argument about the Colorado initiative is more substantial than the one about judicial interpretation, but that's another story.)
This year's version of the off-the-wall argument moving into the mainstream is the argument that John Kerry is disqualified for the presidency (or, apparently, for the Senate position he currently holds), because of the provision in the Fourteenth Amendment imposing disqualification as a sanction for people who, having sworn an oath to support the Constitution (as soldiers -- and members of Congress -- do), gives aid and comfort to the nation's enemies. The argument is presented by Eugene Volokh at http://volokh.com/archives/archive_2004_10_14.shtml#1098295109. He thinks that, in the end, it doesn't work, but that it's "more interesting [and 'considerably more complex'] than it at first seems."
I don't want to engage the "merits," such as they are, of the argument (precisely because to do so would be part of the process of moving off the wall and into the mainstream). The form of the argument is, it seems to me, indistinguishable from arguments, for example, that the income tax is unconstitutional as applied to those who are not (merely) "Fourteenth Amendment citizens" (basically, as applied to white people). This sort of argument, which is a form of hyperlegalism, is ably analyzed in a wonderful article by Susan Koniak, When Law Risks Madness, 8 Cardozo Stud. L. & Lit. 65 (1996), dealing with the constitutional arguments associated with the Miliitia Movement.
The difference, of course, is that the Militia Movement's arguments are off the wall, and not taken seriously by any serious legal academic. So, perhaps we can identify the first step in the process by which constitutional arguments move off the wall: They are taken seriously by (some) serious legal academics. Or, more precisely, the first step occurs when some serious legal academic decides to take the arguments seriously (for reasons which themselves might be subject to analysis).
Mark Scarberry, who developed the Article II argument, headed his first posting on the Colorado initiative question "Here We Go Again." Maybe that should be said about the Fourteenth Amendment disqualification argument as well.
by Mark Tushnet [link]
I'm not sure that it was only 3 justices who found "non-trivial limits on the extent to which a state supreme could provide meaning to the terms used in the statutes setting out how electors are to be chosen." Didn't Ginsburg and Breyer both suggest that the Florida Supreme Court's opinion, whether right or wrong, was reasonable? Does that suggestion--that the state supreme court's interpretation fell within a reasonable bound--do any work? It sure looked to me that it did--that "unreasonable" interpretations might run afoul of Article II, though the SCOFLA's did not.
Of course the three justices you mention have a more cramped view of what would count as reasonable than Ginsburg and Breyer. But that goes to statutory interpration first, and not to the limits placed on state supreme courts by Article II.
Wasn't CLS based upon a "take it off the wall" strategy as well -- reveal the indeterminacy of rights-talk (classical legal thought) then introduce consequentialist reasons for dismantling the status quo (identity politics, socialism, etc.). Isn't this "situation" merely indicative of American legal realism's victory?