Thursday, July 21, 2005
Substance vs. Structure
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.
"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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