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
Structural arguments are still quite in vogue these days. Federalism versus a national government. Judicial “activism” versus judicial restraint. Filibuster rule versus no filibuster rule. All of these arguments purport to be about structural rules, and they are independent of ideology insofar as they could be argued by liberals or conservatives depending upon who happens to be in power at the moment.
So while liberals will support a robust judicial review, with the Warren Court hovering in their memories, an increasingly conservative judiciary might change all that. During the Lochner era, it was the liberals who attacked judicial review and argued for greater judicial restraint. That all changed with the rise of the Warren Court, when the positions of the liberals and conservatives flipped. If the judiciary becomes increasingly conservative, I wonder whether these positions will flip again. Interestingly, in the Terri Schiavo case, it was the conservatives calling for more judicial review, for federal judicial involvement, and for finding a new constitutional right.
What about dividing power between the states and the federal government? For years, it has been the conservatives harping for more state power. Yet in Bush v. Gore, it was the conservatives who were all in favor of the Supreme Court striking down state law and the liberals who were arguing that the Court should not become involved in this state law matter. Today, the Republicans control Congress, and increasingly many states are being more progressive about issues such as protecting privacy or allowing for medical marijuana. As a liberal, I find my views on federalism changing. I used to be staunchly in favor of more federal power; increasingly I find myself wanting the states to be left alone to regulate as they want.
And the filibuster rule. I wonder how many Democrats would be fighting as vigorously to retain it if the situation were reversed, with the Republicans in the minority and Democratic judicial nominees being considered.
Although there appear to be traditional positions for liberals and conservatives on these structural issues, I doubt that the commitment runs too deep in many cases. One theory is that structural arguments are made as a guise to hide substantive arguments. Instead of having a reasoned debate on substance, people resort to claims about structure because it appears more neutral, because it avoids a confrontation on substantive ideology.
Another theory is that people are just more committed to substance than structure. As state law increasingly becomes more protective of rights and civil liberties, liberals may shift to being federalists. This may happen because liberals care more about their substantive ideological goals rather than some vision of the proper structure of governmental power.
Under either explanation, substance trumps structure. If we understand this, perhaps we should more directly address arguments about substance.
I don’t believe that anything I’ve said here should strike many as all that surprising. Nevertheless, although we know that structural commitments are often skin deep, that they are often driven more by substantive disagreements underneath, the arguments and rhetoric still continue on as usual. We watch as people play the surface game, with the same tired old arguments trotted out. And we know it is just surface play. When we realize that it’s just a game, should we continue to keep playing it and pretending along?
Perhaps the reason is that many believe that people have intractable substantive ideological disagreements and there is little way to find a meaningful consensus or compromise. Thus, under this view, arguments over substance will be futile. Maybe structure is all that’s left, even if it is just a game. I sure hope that this isn’t the case. Posted
by Daniel Solove [link]
"Yet in Bush v. Gore, it was the conservatives who were all in favor of the Supreme Court striking down state law and the liberals who were arguing that the Court should not become involved in this state law matter."
Not at all. In Bush v. Gore, conservatives saw themselves as being in favor of the Supreme court undoing state courts' striking down of state law. Remember, we're not talking about legal realists, committed to the notion that the law is whatever a court rules it is; Conservatives are perfectly capable of opposing courts in order to UPHOLD laws the courts are violating.
The federal courts cannot tell state courts about how they ought to interpret state laws. It is when a state law is unconstitutional that the U.S. Supreme Court can it strike down. But it is not the job of the U.S. Supreme Court to police the way state courts interpret state law. That's the business of the states, and that's the way it has always been. In Bush v. Gore, the Supreme Court came up with a dubious constitutional rationale for striking down the state law. Just because the state law was interpreted by state courts doesn't entitle the Supreme Court to dream up some dubious constitutional rationale to strike it down. The big irony is that the rationale the Court came up with is a reading of the Constitution that liberals would have generally preferred to conservatives.
I don't know where the Justices thought they got the authority to overturn that ruling, I was talking about how conservatives generally viewed the case, and that IS how they view it: The Supreme court upholding state law, by stopping a state court from rewriting laws passed by the legislature after the fact.
It has been drilled in us practically from birth that we (U.S. and the States) are a government of laws and not of men/women. But it is men/women who apply the laws such that substance is in the minds of men/women who make these decisions. As suggested by Daniel, this is cyclical.
Right on. This is probably the most insightful (by which I mean "correct in my opinion," naturally) blog post I've seen in a long time. "Our Structural Constitution" notwithstanding, we need to stop hiding our actual judgments by externalizing them to structures.
The category 'structure' and the corresponding notion of 'structural argument' is not well defined nor is it homogenous. Charles Black, the patron saint of structure, defined structural argumentation in a less than ambiguous way. And while federalism clearly may be seen as a non-substantive structure, it is hard to say that the concept of 'citizenship' (one of Black's examples of structural argumentation) is not substantive.
I suspect that, stated in the abstract, the binary contrast between 'substance' and 'structure' makes little if any sense. However, Solove's remarks about the opportunistically rhetorical nature of 'federalism' is correct. The same goes for the hopeless loaded and infantile concept of 'judicial activism' vs. 'restraint.'
The legal realists were right: most legal formalities occlude the real underlying interests. However, this should not lead us to the sort of 'substance-only' adjudication that Solove's commentary would seem to point. Such a stance can only lead to righteous moralizing or crude pragmatism -- i.e. the dissolution of legality. Structure (institutions and roles), and formal rules, are a useful way of constraining the vicisitudes of momentary and short-sighted decisionmaking.
But we also need to beat back efforts to render the structure tootless by pretending that everything somebody attributes to structure is really just a personal preference. Structure DOES exist, and if the judiciary is at all honest, they will find it fairly constraining.
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