The Civil Rights Revolution is Wrong About Housing

Guest Blogger

For the Symposium on Bruce Ackerman, We The People, Volume Three: The Civil Rights Revolution

Florence Roisman


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Posted 9:31 PM by Guest Blogger [link]

The Origins of "Necessary and Proper" (Part II: Common Usage during the Founding Era)

John Mikhail

Historians and other scholars often assume that the phrase “necessary and proper” was novel or constructed out of thin air at the constitutional convention.  As my last post indicated and this post will seek to demonstrate, this assumption seems clearly erroneous.  A different assumption, which also appears to be misleading in many respects, is that “necessary and proper” was a term of art in 1787, which only a trained lawyer or someone with specialized knowledge would be able to use or interpret correctly.   Both of these familiar narratives appear to lend at least indirect support to the Supreme Court’s recent Necessary and Proper Clause jurisprudence, insofar as they imply that the original meaning of “necessary and proper” was either highly opaque or highly technical.  On either alternative, the natural tendency is for ordinary language “drawn from the common affairs of the world” (John Marshall) to become unduly refined and artificial.
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Posted 4:15 PM by John Mikhail [link]

A Theory of Constitutional Origins

Guest Blogger

For the Symposium on Bruce Ackerman, We The People, Volume Three: The Civil Rights Revolution

David Fontana


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Posted 8:58 AM by Guest Blogger [link]

The Constitutional Politics of the Civil Rights Revolution

Mark Graber

Treating the Second Reconstruction as a bipartisan project may have two consequences for Ackermanian, analysis.  The constitutional politics responsible for the Second Reconstruction constitutionalized a commitment to racial liberalism, rather than any species of racial liberalism. Some racial liberals were committed to anti-classification, some to anti-subordination, some to anti-humiliation, and some to other anti-isms.  Different racial liberals dominated different discussions.  What united liberal Republicans and Democrats was a commitment to ending Jim Crow.  Such measures as the Civil Rights Act of 1964 may be better understood as confining future conversations within the racial liberal consensus rather than as an expression of a commitment to a particular version of racial liberalism.  The Second Reconstruction could not outlive the transformation of the underlying constitutional politics.  Ackerman observes that in 1972 “[Nixon] cut out White House liberals and their academic allies, relying instead on hard-right staffers such as Charles Colson” (263).  Over the next decades, the two relatively non-ideological parties (at least on race) that sponsored the Second Reconstruction were replaced by a Republican Party that maintained that the Second Reconstruction solved the race problem in the United States and a Democratic Party that maintained that the Second Reconstruction merely took the first necessary steps toward solving the race problem in the United States.  When consistently presented with choices rather than echoes, voters choose the Republican Party with sufficient frequently to prevent further national efforts to achieve racial equality.  Until a constitutional politics more favorable to progressive racial commitments comes about, we are unlikely to realize what both Ackerman and I might think are the best interpretation of the constitutional commitments made by a previous generation.

Posted 3:20 PM by Mark Graber [link]

Judging the Case Against Same-Sex Marriage

Andrew Koppelman

The case for same-sex marriage has been politically triumphant, and its victory looks inevitable. It nonetheless is curiously incomplete. It has succeeded, not because the most sophisticated opposing arguments have been considered and rejected, but because those arguments have not even been understood. Those arguments rest on complex claims, either about what sustains the stability of heterosexual marriages or about what those marriages essentially are. The most familiar claim, that recognition of same-sex marriage jeopardizes the heterosexual family, demands an account of the transformation of family norms in the past half century. Major social change should not be undertaken without a full awareness of what is at stake.

An essay that I've just published in the Illinois Law Review (in its final form; an earlier version was available on SSRN, and has now been replaced by a pdf of the published essay) thus remedies a major gap in the literature. It critically surveys and evaluates the arguments against same-sex marriage, focusing on recent work by Robert P. George, Amy Wax, Mary Geach, and a few others. You may not be persuaded by them. In fact, you shouldn’t be persuaded by them. But you need to know what they are.
Posted 12:27 PM by Andrew Koppelman [link]

Thanks

Unknown

For the Symposium on Bruce Ackerman, We The People, Volume Three: The Civil Rights Revolution

Since I will only be reading the reviews of my new book when they appear on Balkinization, it may take me a while to write a suitable response.

But I did want to take the opportunity right now to thank all the Symposiasts for the time and trouble they've taken to respond to my arguments. Whatever the merits of my own work, it's a high responsibility of all of us to reflect on the enduring legacy of the Second Reconstruction, especially at a moment when the Roberts Court is rethinking basic premises.

For my most recent reflections on the Court's on-going reappraisal, see my essays in the LA Times and the NY Times.
Posted 9:20 AM by Unknown [link]

Herbert Wechsler's Shadow

Gerard N. Magliocca

For the Symposium on Bruce Ackerman, We The People, Volume Three: The Civil Rights Revolution

The long-awaited third volume of Bruce Ackerman’s We The People series is both a response to and a captive of Herbert Wechsler’s canonical article on Toward Neutral Principles in Constitutional Law.  Most of the book argues that the Civil Rights Movement should be understood as a pragmatic response to racial inequality that self-consciously rejected applying neutral principles in the way that Wechsler demanded from Brown. Yet the book cannot resist the urge to propose its own neutral principle as the best interpretation of the actions taken by the American People and by the Warren Court during the 1960s.  Can these two ideas be reconciled?

The Civil Rights Revolution rejects the idea that the meaning of the Second Reconstruction is that “the right answers, whatever they are, should apply across the board, regulating all aspects of the state’s engagement with the larger society.” While Wechsler is not named in this passage, there is no mistaking the allusion to his claim that a principled judicial decision “is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved.” Wechsler’s problem with Brown was that “[t]he Court did not declare, as many wish it had, that the fourteenth amendment forbids all racial lines in legislation.”  Chief Justice Warren focused on the particular harm that segregation imposed on children in primary and secondary schools, but Wechsler dismissed the notion that “the judgment really turned upon the facts” and sought a more general rationale for the decision.

Ackerman’s response is that the way in which Congress and the Supreme Court dismantled Jim Crow really did turn upon the facts.  The Civil Rights Act of 1964, the Voting Rights Act, and the Fair Housing Act are at the core of this claim. They “self-consciously divide the world into different spheres of life: public accommodations, education, employment, housing, [and] voting.  They impose different [regulatory] regimes on different on different spheres . . . [and] insist on a far more contextual understanding of the constitutional meaning of equality in different spheres of social and political life.”  Granted, Wechsler was not talking about legislative action in his defense of neutral principles, but Ackerman contends that these landmark statutes were an extension of the pragmatic approach taken in Brown.  “[I]n limiting its decision to education, the Court wasn’t engaged in a timid evasion of some grand legal theory attacking society-wide subordination or racial classification.  It was proceeding sphere by sphere in a sociological spirit, challenging constitutionalists to make the principle of equality meaningful to ordinary Americans as they engaged in critical spheres of social life.”

This a powerful takedown of formalism, but the message gets muddled when The Civil Rights Revolution proceeds to enunciate its own neutral equal protection principle.  The distinctive wrongness of institutionalized humiliation, also called the anti-humiliation principle, is served up as the great insight of Brown and the canonical statutes.  Ackerman argues further that anti-humiliation is the premise behind United States v. Windsor and also applies to (among others) illegal immigrants, women, Muslim and Hispanic Americans, the mentally and physically disabled, and the transgendered, since “all these people often find themselves in conditions of institutionalized humiliation.”  This sure sounds like the kind of broad message that Wechsler was searching for in 1959.  As a result, I cannot help but think that the book is embracing a different type of formalism principle rather than rejecting formalism.

In a broader sense, Ackerman’s need to state a general principle that makes sense of the Civil Rights Revolution is a testament to Wechsler’s influence.  A purely pragmatic or sociological jurisprudence is hard to defend in part because it sounds too open-ended.  The fact is that many people today believe that judicial action (at least with respect to constitutional law) is legitimate only when it is grounded in something other than what Ackerman calls the judge’s “situation-sense.” Neutral principles are a way of doing that, even though they come with their own liabilities.  In that sense, the formalism of the First Reconstruction still has the jurisprudential upper hand.

Let me close by noting that Bruce is a mentor and a friend.  I would never have become a professor without his help, so he only has himself to blame for the criticisms in this review.
 
Posted 1:16 PM by Gerard N. Magliocca [link]

Symposium on "We, The People: The Civil Rights Revolution"

Gerard N. Magliocca

Next week we will hold a symposium on Bruce Ackerman's new book about the Civil Rights Movement.  This is the third volume in his "We, The People" series, and we are pleased to have the following scholars commenting on the book:

David Fontana
Mark Graber
Jamal Greene
John McGinnis
Richard Primus
Florence Roisman

I will kick off things tomorrow with my post, and when all the reviews are in Professor Ackerman will offer a response.
Posted 2:39 PM by Gerard N. Magliocca [link]

Debate Moment!

Unknown

Just to let you know that I've been having debates with Randy Barnett on originalism at the Volokh Conspiracy in the Washington Post and with Richard Epstein on the Court's recent affirmative action decision in a podcast sponsored by the Constitution Center.

I'm searching for a general theory of "debate moments," but haven't come up with anything yet.



Posted 9:13 AM by Unknown [link]

The Court and Congress: The Child Pornography Case

Rick Pildes

When Congress botches a statute, should the Court take into account whether Congress is likely to respond to the Court's decision?  That is one of the more intriguing questions spawned by yesterday's decision in the child pornography case, Paroline v. United States.

As eight Justices saw it, the text of the law suggested Congress had created a messy situation:  (1) Congress intended to ensure that victims like Amy receive some restitution; (2) Congress did not intend that they receive as much as $3.4 million in restitution from someone who possessed two images of the victim, which is what the victim sought; (3) and Congress had not provided any direct guidance in the statute itself for how courts ought to determine the point between $0 and $3.4 million at which restitution ought to be set.  Congress must have meant something between $0 and $ 34 million, but provided no road-map for even generally figuring out how much.  All eight Justices presumably agree it would be better for Congress to address and resolve the general policy issues.  The question is what to do when Congress hasn't -- and, perhaps, what decision from the Court makes it most likely that Congress will do so.

Initially, the question is whether the Court should try to put Humpty Dumpty back together again:  should the Court construct a version of the law that creates a rough approximation of what Congress might have been trying to do -- as Justice Kennedy's majority opinion did -- or should it conclude that Congress has made such a mess, and has provided so little guidance, that the Court should not to try to spin rationality from such little thread but instead throw its hands up and push the issue back to Congress -- as CJ Roberts's dissenting opinion did.

But the even more intriguing question is which way of handling situations like this -- the Kennedy or Roberts approach -- makes it more likely that the final outcome will be what all eight Justices agree would be best, which is for Congress actually to address these issues.  It's possible the Roberts approach would make it more likely than the Kennedy approach that Congress would be forced to get back into this area.  Roberts reaches a result that he knows Congress did not intend -- that victims get nothing, even though the whole point of the statute was that they ought to get something.  But since that outcome flies so dramatically in the face of the policy we have good reason to believe Congress wants (both the enacting and current Congress), the very extremity of that result perhaps makes it all the more likely that groups will mobilize and be able to move Congress to respond.  And it's possible Congress might be less likely to respond under the majority's approach:  Congress might conclude after yesterday that the courts are now in the middle of working things out and might wait to see what the courts manage to do.  And we can now also ask, should the Court take these considerations into account -- which way of deciding a case like this makes it more likely Congress will step up -- when the Court chooses between the majority and dissenting approaches.

Of course, when you have a hammer, everything looks like a nail, and I see these questions through the framework of the issues I laid out in this blog yesterday, before the child pornography opinion was handed down.  Should the Court try to make "realistic" judgments about how Congress is likely to respond to the Court's decision or consider it irrelevant whether Congress is more likely to respond if the Court goes down the Roberts rather than Kennedy path?  For my post yesterday about these issues, see here.  Rick Hasen has some initial thoughts about these questions, also, over here.




Posted 4:00 PM by Rick Pildes [link] (4) comments

How Realist Should the Court be About the Other Institutions of National and State Government?

Rick Pildes

This is a somewhat modified cross-post from the Election Law blog:

I have recently come to the view that the issue of what I call “institutional formalism versus institutional realism” is one of the most profound and pervasive ones in all of constitutional and public law.  This issue is at the bottom of how the Court does or should review the actions of other institutions of national and state government.  Because the issue comes up regarding almost any public institution, it arises through much of what the Court does:  whether the Court is reviewing actions of Congress, or the President, or federal agencies, or state legislatures, or state courts.  The issue is whether the Court should take into account its own view of how other institutions “realistically” actually function or whether the Court’s decisions should rely only on the formal legal powers other institutions have, without regard to how they are likely to exercise (or fail to exercise) those powers in fact?

A perfect recent example is the McCutcheon decision.   The majority in McCutcheon invokes the fact that other institutions — namely, Congress and/or the FEC — have the power to fill any regulatory gaps that might emerge from the Court’s striking down the aggregate contribution limits. In turn, some critics of the decision excoriate the Court for invoking the power of Congress or the FEC to act, based on what I call the “institutionally realist” view that it is unlikely that either a polarized Congress or gridlocked FEC will in fact do anything; indeed, these condemnations sometimes suggest the majority is being disingenuous -- as if it is obvious the Court should take this realism into account.  But the real, underlying question is should McCutcheon – and cases like it — be decided differently based on the Court’s judgments of “political realism” about how the political branches and regulatory agencies are likely to respond?


Once we recognize how pervasive this issue is across different areas of constitutional law, the depth and complexity of this “realist/formalist” tension become more fully apparent. I have recently tried to capture this issue, at least as a first cut, in Institutional Formalism And Realism in Constitutional and Public Law, forthcoming in The Supreme Court view, here.  Here is the abstract:

Constitutional and public law often entail judicial review of the actions of public institutions. In engaging in this review, courts can adopt a stance of either “institutional formalism” or “institutional realism” regarding how the institution in question functions. After defining those terms, this article argues that the tension between institutionally formalist and realist approaches is a pervasive one, even if obscured or latent, throughout the constitutional and public law of institutions. We cannot understand these bodies of law fully without recognizing this fact. Many scholars in discrete areas of law can be understood as grappling with this tension in some form. But we have not appreciated how profound this institutional issue is, nor how it transcends specific areas of law to stand as one of public law’s general, defining problems.

This formalist/realist institutional tension structures public-law doctrine and debates regarding judicial oversight of virtually all the institutions of governance. As this article demonstrates, that is so for judicial review of the actions of Congress, the President, federal administrative agencies, state legislatures, and state courts. After developing this framework, the article applies it to the Supreme Court’s Shelby County decision, in which the Court struck down part of the Voting Rights Act, and shows that the case hinges on how formalist or realist the Court ought to be regarding Congress.

The general struggle in how the law should conceive public institutions can be seen as the modern successor to the early 20th century tension between formalist and realist approaches to the substantive content of legal concepts, categories, and doctrines. Now, the tension between institutional formalism and realism re-raises the question of how much pragmatism – this time, at the level of institutions and processes – is compatible with certain conceptions of the rule of law. Focusing more directly on this tension illuminates public law and its controversies but cannot suggest that any final resolution is available. Yet to understand public law fully requires appreciating the powerful role this tension quietly plays.

Posted 11:19 AM by Rick Pildes [link] (8) comments

The Loyal Opposition

Heather K. Gerken

Posted 12:03 PM by Heather K. Gerken [link]

Schuette v. Bamn

Gerard N. Magliocca

The opinions are out, and they are extremely interesting.  (One gets the impression that some of this material was drafted last year for Fischer and left on the cutting room floor.)

The most eye-catching part to me is Justice Scalia's dismissal of Footnote Four of Carolene Products.  In his concurrence, he says the following (internal citations omitted):

"The dissent trots out the old saw, derived from dictum in a footnote, that legislation motivated by 'prejudice against discrete and insular minorities' merits 'more exacting judicial scrutiny.'  I say derived from that dictum (expressed by the four-member majority of a seven-Justice Court) because the dictum itself merely said "[n]or need we enquire . . . whether prejudice against discrete and insular minorities may be a special condition."  After some additional discussion, Justice Scalia concludes this section with:  "[W]e should not design our jurisprudence to conform to dictum in a footnote in a four-Justice opinion."

Take that--John Hart Ely!
Posted 10:37 AM by Gerard N. Magliocca [link] (158) comments

Federalism by the Grace of Congress—and the Doctrines Needed to Protect the State Sovereign Acts it Generates

Abbe Gluck

Posted 9:38 AM by Abbe Gluck [link]

Shelby County and Hobby Lobby

Mark Tushnet

Posted 5:33 PM by Mark Tushnet [link]

George Will's Partial Constitution

David Gans

Posted 2:55 PM by David Gans [link]

Negotiating Conflict through Federalism

Guest Blogger

Posted 9:58 AM by Guest Blogger [link]