Doctrine and Meaning: Easy Cases

Anonymous

I’m now going to talk about some specific cases and doctrines. What I’ve argued so far is that we should distinguish between doctrine and constitutional meaning, and that in evaluating cases we should look at the transition from meaning to doctrine, asking essentially whether there are good reasons for choosing particular doctrinal rules as a way of implementing a particular constitutional meaning. And I have suggested that we can be originalists while still calling unconstitutional things that the drafters of the relevant constitutional provision would not have called unconstitutional. We can do this because some constitutional provisions are value-laden in a way that makes it appropriate to consult contemporary attitudes in determining their application. (In response to some comments I’ve received: I’ve been asked what the use is of an equal protection clause that just forbids discrimination society thinks is invidious anyway. The point of this is that it can rein in outliers—it can, for instance, invoke national values to override a form of discrimination that a state-level majority thinks is acceptable. That seems like an appropriate thing for a Reconstruction amendment to do.)

In the book, I divide the cases I discuss into several different categories—the ones I think are clearly correct; the ones I think are arguable but probably correct; and the ones I think are wrong. Then I look at some of the anti-canonical cases to try to explain what went wrong in them, and last I try to draw some conclusions about the appropriate role of the Court vis-à-vis the other branches. Here I am just going to run quickly through some of the case evaluations. This post will discuss some easy cases; I will get to others as soon as I can. (I wish I could get these posts up faster, but it’s clerkship season and I’m spending a lot of time with Penn applicants.)

The first easy cases are equal protection cases dealing with discrimination against women and racial minorities. What’s happened here is that the justifications that used to be used to support differential treatment of women and minorities have been deemed factually false or morally reprehensible or both. Not by the Court alone, but by the American people, at least to a sufficient degree that the Court feels justified in invoking their repudiation as a national value that can be imposed on outliers. (How the Court decides that is of course a big issue, but does anyone want to argue that the Court made the wrong call for women or racial minorities?) Heightened scrutiny comes about because the Court recognizes that the attitudes that gave rise to the differential treatment persist in some minds, and the underrepresentation of women and minorities in legislative bodies suggests that those bodies may not be able to weigh costs and benefits accurately. Thus, history and political science both suggest that classifications burdening the interests of women and minorities are unusually likely to be invidious. (And by invidious I basically mean unjustified. Discriminatory treatment inspired by animus is classically invidious. But differential treatment whose costs to the burdened group outweigh the benefits to the benefited group is also invidious, I would say, because it indicates a lack of equal concern and respect—or, perhaps, factual confusion about the characteristics of a group or the effects of a classification, in which case the legislative competence is suspect and judicial second-guessing in the form of heightened scrutiny appropriate.)

So Brown, for instance, is a very simple and clearly correct decision: the Equal Protection Clause forbids classifications that are designed to stigmatize (as the Court recognized as far back as Strauder v. West Virginia, in 1880). The Brown Court decided that racially segregated schooling stigmatized; it was no longer willing to say that segregation just reflected the natural order of things, or that the stigma was just in the minds of those who chose to see it. That’s a position that wasn’t universally accepted in 1953, but looking back it’s easy to say the Court made the right call. (As I’ve heard Akhil Amar put it, “What part of ‘equal’ don’t you understand?”)

Miranda and Dickerson are also easy cases. The problem that most critics have with Miranda is that the text of the Miranda warning can’t be found in the Fifth Amendment. Which is true enough, but not an objection once we’ve distinguished between doctrine and meaning. The Fifth Amendment’s self-incrimination clause bars the introduction of involuntary confessions; that is the constitutional meaning. But a doctrinal rule that simply tracked the meaning would have been undesirable for a number of reasons. It would have given little guidance to law enforcement officials, who would be left uncertain how far they could go in eliciting statements from suspects. Likewise, development on a case-by-case basis would have taken a long time and a substantial investment of Supreme Court resources to produce a uniform and consistent body of law. Last, the voluntariness determination was difficult for courts to make on the basis of a paper record that might reveal very little about the actual tone and tenor of an interrogation.

For all these reasons, a different doctrinal rule was desirable, and Miranda provided one. The question Dickerson presented was the extent to which Congress could override the Court’s choice of doctrinal rules. The answer to this is relatively simple. Judicially-crafted doctrine should not necessarily be understood as exclusive, and alternate procedures that are equally effective in implementing the meaning may well be acceptable. In other cases the Court has said just that. The problem in Dickerson was that Congress had offered not an equally effective alternative, but one that simply erased the Court’s rule and thereby reintroduced the problems that had necessitated Miranda in the first place. That was clearly an insufficient substitute, and rejection was the appropriate reaction.

I also think that Hamdi and Rasul are easy cases. In Hamdi, the Court ruled that an American detained as an enemy combatant was entitled to the opportunity to rebut the executive’s case before a neutral decisionmaker (by which I hope the Court meant a federal judge, though that remains to be seen). There were a lot of opinions in Hamdi, but most of the Court agreed on the relevant constitutional meaning: with congressional authorization, the Executive has the power to detain, essentially as prisoners of war, Americans who have taken up arms against the government. The question then becomes, who decides whether an executive detention complies with that requirement—the executive itself, as Justice Thomas suggested, or a neutral decisionmaker. There are obvious reasons not to leave the determination within the executive branch; indeed, the principle that one branch of government should not be able to deprive individuals of liberty by itself is one of the basic principles of separation of powers. There is also the historical precedent of Korematsu, which I will discuss later, which suggests that excessive deference to the executive with respect to the national security basis for detentions is unwise. So requiring judicial involvement at the stage of determining enemy combatant status seems like a very sensible doctrinal rule.

In Rasul, the Court held that alien friends detained in Guantanamo Bay could file petitions for writs of habeas corpus challenging the basis for their detention. The decisions have been criticized by those who think it’s outrageous that “terrorists get lawyers,” but I think separating doctrine and meaning gives a clearer perspective on this, too. The question, in terms of constitutional meaning, is this: are there any limits on what the executive can do to innocent citizens of allied nations? I think the answer must be yes. The government wields only delegated powers, and I do not think it is sensible to suppose that the People would give it the power to torture innocents to death, for instance, even if they are foreigners, and even if the torture takes place outside the U.S. (I leave aside the effect of the federal anti-torture statute, though that is also relevant.)

If that’s the case, then the real question is what doctrinal rule best implements this constitutional meaning: how should courts decide whether the executive is overstepping whatever limits exist? One answer, which parallels Justice Thomas’s position in Hamdi, is that the question of compliance should be left up to the Executive: limits do exist, but they are not judicially enforceable. This extreme deference might make sense in some areas—when I get to the harder cases, I will talk about some—but in the Rasul context, the relevant questions are basically whether these people are terrorists and what the Executive has been doing to them—relatively simple factual questions that courts can decide. So a doctrinal rule that has the courts deciding these factual questions with little or no deference to Executive assertions seems sensible to me.
Posted 4:47 PM by Anonymous [link]