Friday, May 22, 2015

"The Two Cultures" Lives on in Law School

Mark Tushnet

Last week I finished reading a really interesting book by Cedric Villani, who won the Fields Prize in mathematics (the discipline's equivalent of the Nobel Prizes), for his work on (bear with me on this) Landau damping and the Boltzmann equation. Birth of a Theorem describes how Villani and his collaborator came up with the proof. It's quite unforgiving on the mathematics, which I found unintelligible (it turns out that Villani intended the mathematics to be unintelligible), but really informative about the phenomenology of mathematical creativity -- and perhaps about creativity in general.

My take on Villani's account is this: He was thinking about the problem pretty much all the time, though not always in a focused way. And, though the problem was "modular," in that it had quite a few almost-independent moving parts, he didn't approach its solution in a linear way. That is, he didn't work on the first step until he got the solution and then move on to the second and then the third steps. Instead, he moved among the different "sections" of the proof seemingly randomly (although he doesn't quite say this, he was able to work on Step Seven by assuming for the moment that they'd figured out Steps One through Six). Workshops turn out to be a good incentive for creativity -- but seemingly only if at least some of the people in the audience are (almost) as knowledgeable as the presenter. There's a lot of other stuff that resonated with me, such as the fact that he likes to work with popular (French) music in the background, such as this by Catherine Riberio. (Here's a lecture by Villani describing the creative process.)

I thought the book was a fascinating description of creativity, and mentioned it at the faculty lunch table. But, when I responded to a question about what Villani had created, the answer -- "a proof about Landau damping" -- brought the conversation to a stop, and not merely (I think) because I couldn't explain what Landau damping was. (After all, I referred to the book as about creativity, not about Landau damping.)

A day or two later, I went to a program on Handel's music as illuminated by his circle of friends in London. Ellen Harris, the author of a book on that topic, gave a talk that I found interesting mostly because of her description of the archival detective work she had to do to trace the friendship circle. The talk was followed by a performance of excerpts from some of Handel's operas (which I found less interesting). I'm quite confident that, had I introduced the topic of the program into the lunchtime conversation, my colleagues would have gone along -- even though, at some level, the Handel program was also about creativity.

Two generations ago the novelist and physicist C.P. Snow wrote about the two cultures, of the humanities and the sciences. Apparently the two cultures persist, at least at Harvard Law School. I suppose you can get some interest in cutting-edge applied sciences like neuroscience and robotics (the latter of which is basically engineering, I think), but basic science is a black hole, so to speak -- an occasional source of metaphors like that one, but not something of real intellectual interest. I have a cynical hunch about why the divide persists: Basic science and mathematics are about about the real truths about the universe, whereas law -- isn't.

But, I did end my first-year course this year with a short description of Yitang Zhang (and a picture of Odell Beckham, Jr.). The lesson -- Do Good Work.

Ridiculous Political Reporting on Legal Issues

Mark Tushnet

Politico had a story yesterday about assistance Elizabeth Warren gave the United States in its appearance before a NAFTA arbitration tribunal in the Loewen Group case. The sting of the story appears to be that Senator Warren is some sort of hypocrite for opposing the TransPacific Partnership agreement because it contains an Investor State Dispute Settlement process just like the NAFTA one, in which she participated. (Although perhaps the sting of the story is that then-Professor Warren was paid a fair amount -- "up to $90,000" [what, they couldn't find the actual number?] -- for what she did. That comes to between $200 and $400 an hour. In 1999-2000, when the events occurred, $200 per hour would have been at the low end of an academic lawyer's hourly rate, $400 in the middle of the range.)

The "money quote" in the story seems to me to be this: "She ... did not appear to have any qualms about participating in this process that she now finds appalling." What the story doesn't make clear is that Warren provided an expert opinion whose point was to make it more difficult for the Loewen Group -- and others in similar cases -- to displace the US courts in determining who should win trade disputes. And that's consistent with the position she's now taking -- that the TPP's arbitration mechanism will take trade disputes out of the US courts and put them in the hands of an arbitration panel.

It seems to me that a decent analogy is this: During the 1930s some Southern courts had an appalling practice of "lynch law" -- truncated, blatantly unfair trials of African American charged with crime. A forensic specialist who has previously denounced lynch law provides expert testimony that the defendant's fingerprints don't match those found at the crime scene. I don't think that the expert would have had, or should have had, "any qualms about participating" in a process the expert "finds appalling."

I confess to finding political reporting about legal issues generally appalling. For example, after reading quite a few stories about Hillary Clinton's e-mails, I still don't have a clear idea -- from the stories -- of what the actual legal requirements were at the time she maintained two e-mail accounts, except that it doesn't seem to be the case that any law or regulation actually required that she use only an official account for official e-mail (there seem to have been "good practice" recommendations that didn't carry the force of law -- but frankly, I can't tell what the state of the law actually was).

Now, for those who want even more detail:

The Loewen Group case is a complicated one. The Loewen Group, a Canadian firm, complained that a jury in Mississippi, influenced by a trial lawyer's nativist attacks on foreign-owned companies, said that it had to pay a huge amount in punitive damages ($400 million dollars in punitive damages compared to $100 million in actual damages). Mississippi law required losing parties to post appeal bonds of 125% of the amount. Loewen Group unsuccessfully tried to get the Mississippi courts to stay the appeal bond requirement -- that is, to say that it could proceed with an appeal without posting the bond. They refused to do so.

At that point a standard requirement in international arbitration proceedings kicked in. Before invoking arbitration, you typically have to do what you can to get relief from the domestic -- here, the United States -- courts. The Loewen Group did go to the state courts, but was that enough? For example, could they have tried to get the US Supreme Court to stay the appeal bond?

The United States wanted to give the "domestic remedies" requirement an expansive reading. Its lawyers looked at the US bankruptcy law and saw that (generally speaking) filing for bankruptcy leads to an automatic stay of pending legal proceedings. So, if the Loewen Group's complaint was that it couldn't afford to post the bond, it had -- in the US government's view -- another domestic remedy to avoid the bond requirement: It could file for bankruptcy.

International arbitration panels treat domestic law as a matter of fact, meaning that the US government had to prove that filling for bankruptcy would lead to an automatic stay. The way you prove that is through testimony -- usually, an affidavit -- from an expert in the field. And that's where Professor Warren came in. She was retained to provide an expert opinion to the effect that yes, indeed, the Loewen Group would have gotten a stay of the bond requirement if it had filed for bankruptcy.

The point of all this detail is that Professor Warren's testimony was for the purpose of making it harder for a Canadian company to win in the arbitration proceeding. (And, indeed, the Loewen Group did lose on the ground [I'm condensing a lot of detail here, and my summary is quite rough] that it had not exhausted its domestic remedies -- though the panel didn't rely on the bankruptcy stay provision.) That's entirely consistent with Senator Warren's position that international arbitration isn't a good way, from the US point of view, for resolving trade disputes.

Tuesday, May 19, 2015

On Elephants

Mark Graber

Dear Dean ____:

I am writing to request that your reconsider your decision not to provide me with an elephant.

An elephant will impose limited costs on the law school faculty.  We can put the animal in Professor ___’s office.  No one will notice or notice the difference.

An elephant can be used to demonstrate our commitment to experiential learning and integration of different subject matters.  We can teach most of the law of torts by having students feed the elephant.  We can teach most of the law of contracts by having students make agreements about cleaning up after feeding the elephant.  Taking care of the elephant will introduce students to crucial elements of professional responsibility and other weighty matters (you knew that was coming).

An elephant can be used to demonstrate our commitment to real world legal experience.  Students who perform moot courts in front of the elephant will soon learn that they have as much chance of influencing the elephant on hot constitutional issues as they do of influencing Justices Antonin Scalia and Ruth Bader Ginsburg. 

An elephant can increase applications and enrollment.  Programs are hot, but no one advertises “Constitutional Law with an Elephant.”  Unlike originalism, history and the like, many law school applicants are actually interested in elephants.  Many will apply and matriculate simply because they are curious as to what is our constitutional law program with an elephant.  They will be thrilled when they discover that “Constitutional Law with an Elephant” requires no extra reading, although we will have to figure out how to work elephants into our final examination (dormant commerce clause is usually good for these sorts of things).

Most important, an elephant may improve our ranking in U.S. World News and Report (USNWR).  Most commentators on the USNWR law school rankings agree that the elephant-to-student/faculty ratio is just as good a measure of a law school as many measures that USWNR presently uses.  Given USNWR is already the elephant in the room (blame Elizabeth Beaumont of Minnesota for this one), including an elephant measure seems appropriate once there is actual variance among law schools.  Given we will be the only school with an elephant, I would expect to jump at least ten places, justifying a ten percent rise in tuition.  Of course, should that happen, our rivals will no doubt seek elephants of their own.  Nevertheless, given the centrality of branding to the mission of universities and law schools, we will forever be known as the first law school with an elephant.



The Jefferson Rule: An Interview with David Sehat


The Jefferson Rule

I recently spoke with historian David Sehat about his new book, The Jefferson Rule: How the Founding Fathers Became Infallible and Our Politics Inflexible (Simon & Schuster 2015).

JB: Your last book was about religious freedom. Why did you decide to write a book about how the founders have been used (and misused) in American political rhetoric?

David Sehat: People in politics often refer to the Founders to justify their particular vision of religious freedom.  My first book called into question that impulse.  But as I finished that first book, the 2009 Tea Party began.  I found the historical malapropism and anachronism of the Tea Party pretty astonishing, but I knew enough to realize that what they were doing wasn't entirely new.  So I decided to write a book about how the rhetoric about the Founders began and to evaluate its consequences over time.

JB: You describe Jefferson as being the first President to really wrap himself in the founding, all the while changing its political meaning to suit his political program. He plays St. Paul to the founders' Jesus. He turns the principles of 1787 into the principles of 1798. One of the big themes of your book is that this general approach to the founders has had unfortunate consequences for American politics from Jefferson's day to the present. Why do you think that's so?

David Sehat: In battles with the other Founders, Jefferson constantly referred to "the true principles of the Revolution." He accused his opponents of "heresy" and "infidelity" in defense of what he called "the holy cause of freedom."  The result was a palpable distortion of American constitutional meaning, changing the consolidating moment of 1787 into the dangerous states rights principles of the 1798 Virginia and Kentucky Resolutions.  But even more broadly, Jefferson began an impulse, which continues to this day, to take normal political disagreement, policy disagreement, and to convert that disagreement into a dispute over first or fundamental principles.  The result is a kind of apocalyptic politics.  We can't just have a political disagreement based on differing values or differing policy estimations.  Our dispute is evidence that one of us is engaged in bad faith and betraying founding principles.  That kind of disagreement is harder to tolerate and tends to promote a no-holds barred kind of politics, rather than a politics of compromise, conciliation, and pragmatic action. 

Read more »

Monday, May 18, 2015

The Framework Model and Constitutional Interpretation


I've posted a draft of my latest essay, The Framework Model and Constitutional Interpretation, on SSRN. This essay was written for Philosophical Foundations of Constitutional Law (Oxford University Press forthcoming 2016), a collection edited by David Dyzenhaus and Malcom Thorburn. In this essay I offer a theory of constitutions as frameworks for politics, generalizing from the theory of framework originalism described in Living Originalism.  Here is the abstract:

This essay explains the framework model of constitutions and its consequences for constitutional interpretation.

The framework model argues that a constitution is a basic framework for governance that enables future political development. As a framework, a constitution is always unfinished and must be filled out over time. Although the text of the constitution may not change without amendment, the constitution-in-practice is continually changing through constitutional construction—the building out of the constitutional system through doctrinal development, legislation, administration, institution-building, and the creation and elaboration of conventions.

In the framework model constituent power is not limited to special moments of official amendment or adoption of a constitution; it can be exercised through all of the modes and methods of politics and legal argument that result in constitutional constructions. In particular, social and political mobilizations may exercise constituent power to the extent that they influence constitutional constructions by the political branches or by the judiciary. For this reason, the framework model does not sharply distinguish between constitutional politics and ordinary politics. Constitutional construction is a dialectical process involving all branches of government as well as civil society, which together build out the constitution over time.

Judges must enforce the basic framework and they may not vary from it. Nevertheless, the constitutional framework is unfinished and inevitably requires further construction. The constitutional text, consisting of a combination of rules, standards, principles, and silences, creates an economy of delegation and constraint for the political branches and the judiciary. The basic framework will not be sufficient to decide many if not most constitutional controversies that arise over time. Hence good judging requires constitutional construction consistent with the terms of the basic framework. Because of the dialectical nature of constitutional construction, many possible paths of constitutional development are possible.

Consensus on a single correct interpretive methodology is not especially important in the framework model. Judges and lawyers will often disagree not only on the best interpretation, but also on the best interpretive methodology. And because, in an evolving state, judicial construction has a dialectical relationship to politics, the course of constitutional doctrine may have many complicated and path-dependent influences and effects. It will not correspond to any comprehensive theory of constitutional interpretation. Interpretive theory in and of itself may do relatively little to constrain judicial behavior. Nevertheless, judges are constrained; constraints come from social, cultural, political, and institutional features of the constitutional system.

At any point in time, some constitutional interpretations are simply not plausible. They are "off-the-wall." Nevertheless, the properties of being "off-the-wall" and "on-the-wall" are not permanently fixed. Constitutional common sense can be altered through sustained political and legal contestation. Mechanisms of social influence form important parts of a political system and help shape the constitution-in-practice over time. Shelley famously remarked that poets are the unacknowledged legislators of the world; he might have added that the members of society, in their various institutional configurations, are the unacknowledged interpreters of a constitution.

Friday, May 15, 2015

Fidelity and Change in Constitutional Interpretation


Here's the video of a panel at Boston College's Clough Center on Fidelity and Change in Constitutional Interpretation, featuring Katharine Young (Boston College), Lawrence Solum (Georgetown) and myself, moderated by James Fleming (Boston University), and introduced by Richard Albert (Boston College).

The discussion ranges widely-- from the debate over originalism in American constitutional interpretation to the interpretation of the South African Constitution to the legacy of Ronald Dworkin. I begin (at 8:50) by making the provocative claim that the debate over originalism and living constitutionalism is over, that the two are the same, and that we are all living originalists now.

Sunday, May 10, 2015

Jeannette Rankin and the 1940 Election as a War Referendum

Mary L. Dudziak

I am exploring the history of efforts to amend the constitution to include a requirement for a popular vote before entering a foreign war in one of my chapters in my current book project. One of the arguments I'll make -- previewed this Tuesday at Stanford, where I'm giving the David M. Kennedy Lecture on the United States and the World -- is that sometimes elections have served as war referenda. Here's a snippet, featuring Congressmember Jeannette Rankin of Montana.

The most important moments of democratic engagement over the war powers [for WWI and II] were the elections preceding the war declarations. The elections of 1916 and 1940 were, in essence, referenda on war. Since 1914, there had been efforts to amend the constitution to enable some sort of popular participation in decisions to go to war. But an important moment for the public to register their sentiment was already there: the power to elect not only the Commander in Chief, but also the members of Congress who would vote for or against war.

Nothing more strongly illustrates this point than the success of a Republican candidate in the 1940 election. Wendell Wilkie, the Republican presidential candidate, was defeated by Franklin D. Roosevelt, of course. But the State of Montana would send back to the House that year a candidate who had first captured the nation’s attention when, in April of 1917, she cast the first vote ever by a woman in Congress, a vote against the declaration of war with Germany.

Jeannette Rankin had been a suffrage organizer before she ran for political office for the first time in 1916. Her platform included preparedness for coastal defenses, as a way to avoid war. It was her widely publicized vote against war that shaped the course of her political life in later years. Unable to hold her seat in 1918, Rankin would be out of office -- until 1940.

In the interim, she worked for pacifist organizations and lobbied for constitutional reform of the war powers, believing that the people’s voice must be heard through a referendum before the nation went to war. In 1940, she challenged a weak incumbent, running an anti-war campaign. “By voting for me,” she said in a campaign speech, “you can express your opposition to sending your son to foreign lands to fight in a foreign war.”[i] The people of her district could vote against war by voting for Jeannette Rankin.

Elected by a comfortable margin, she predicted that, unlike the flurry of attention she received in 1917, “no one will pay attention to me this time,” since it was no longer unusual for a woman to serve in Congress.[ii]

Once in office, Rankin offered an amendment to the Lend-Lease bill to require specific congressional approval for the president to send American troops abroad. Twice in the spring of 1941, she introduced a resolution condemning any effort “to send the armed forces of the United States to fight in any place outside the Western Hemisphere or insular possessions of the United States.” These efforts were unsuccessful.[iii]

In December 1941, Congressmember Rankin heard the news about Pearl Harbor on the radio. She was anguished as she made her way to the Capital on December 8. She listened along with her colleagues as Roosevelt spoke of “a date which will live in infamy,” and called for a declaration of war. The House and Senate then quickly took up the resolution that “the state of war between the United States and the Imperial Government of Japan which has been thrust upon the United States is hereby formally declared.”[iv] In the Senate, there was no debate, and a swift and unanimous vote.

In the House, a radio station, continuing to broadcast after the president’s speech, in violation of House rules, captured the scene. Because of Rankin’s role as a war dissenter, “all eyes were on her as majority leader John McCormack moved the question.” She “rose to object, but was quickly cut off.” Congressman Martin of Massachusetts held the floor, “yielding to isolationists ready to recant their isolationism.” Rankin again tried to speak, but Speaker Sam Rayburn ignored her. Spectators in the gallery called out for her to sit down. When word came through that the Senate had already voted, House members insisted on moving forward. “They’re calling to shut down any further debate,” the radio announcer said. “A most unusual procedure.”

Standing, her hand raised, Rankin tried once more, and attempted to raise a point of order. Rayburn slammed down the gavel and said, “The roll call cannot be interrupted.” The other 388 members of the House present that day voted yes. Rankin's no vote was met with a chorus of hisses and boos.[v]

Harsh words about “Japanese devils”[vi] could be heard that day, as could Representative Byron’s claim that she would be willing to sacrifice her sons for the war effort.[vii] The House violated its own rules in their effort to silence the one voice in their chamber wishing to question the rush to war.

It is easy for us to question Jeannette Rankin’s judgment, but she was fulfilling her campaign promise, she would later say, the pledge she had made to the mothers and fathers of Montana to keep their sons out of war. The vote came so quickly, as compared with World War I – at 1:10 pm Eastern time, less than 24 hours after the attack on Pearl Harbor. She thought that for something as momentous as war, they should wait until the facts were all in.[viii] There would be later occasions when Americans would wish that their members of Congress had taken the time to investigate. But on December 8, Rankin was widely vilified.

An avalanche of opprobrium fell down upon her immediately. She had to escape to a telephone booth, and a police officer helped her get safely back to her office.

Beneath a mountain hate mail, some, like Roger Baldwin, wrote to say that they admired her courage, and as the nation geared up for war, the writer Lillian Smith said: “that one little vote of yours stands out like a bright star in a dark night.”[ix]

I have more to say about how this fits into the politics of war, but this post is long enough! The short version is that the effort to silence Rankin shows that the events of Dec. 8 were better at mobilizing the country, and potentially at protecting seats in Congress for the former "isolationists", than as an example of interbranch deliberation and decision. The times of robust war politics were during the 1940 election campaign, and during the push and pull over neutrality legislation in the late 30s through 1941.

[i] Norma Smith, JR, 175-76. [Please excuse incomplete citations -- I thought they would be helpful nevertheless.]
[ii] Smith, JR, 177.
[iv] Cong Rec 9520.
[vi] Walter Cronkite, NPR.
[vii] Cong Rec 9521.
[viii] Ted Carlton Harris, “Jeannette Rankin: Suffragist, First Woman Elected to Congress” (Ph.D. diss., University of Georgia, 1972), 295-96.
[ix] Lillian Smith to JR, December 13, 1941, quoted in Ted Carlton Harris, “Jeannette Rankin: Suffragist, First Woman Elected to Congress” (Ph.D. diss., University of Georgia, 1972), 297.

Thursday, May 07, 2015

What’s Really at Stake in NAM v. SEC

Guest Blogger

Sarah C. Haan

The D.C. Circuit is currently rehearing NAM v. SEC, the 2014 case in which it threw out part of the SEC’s Conflict Minerals Rule on First Amendment grounds.  The question posed by NAM v. SEC involves high stakes: Can the D.C. Circuit apply a commercial speech test to a securities disclosure rule? 
The Conflict Minerals Rule requires companies to disclose, in SEC filings and on their Internet websites, whether they have used certain “conflict minerals” from the Democratic Republic of the Congo.  In the 2014 case, the D.C. Circuit found that the Rule (and Section 1502 of the Dodd-Frank Act) violated the First Amendment “to the extent [they] require regulated entities to report to the [SEC] and to state on their website that any of their products have ‘not been found to be ‘DRC conflict free.’”
The opinion treated the securities regulation as commercial disclosure and declined to decide whether intermediate scrutiny or strict scrutiny applied, because this aspect of the disclosure could not satisfy the Central Hudson test. 
The Conflict Minerals Rule is paradigmatic securities regulation.  Congress located the statutory mandate for the Rule in the Securities Exchange Act of 1934, embedding it in the deepest bedrock of securities law.  It applies only to issuers subject to the regulatory authority of the SEC, the federal agency responsible for securities regulation, which promulgated the rule and enforces it.  To facilitate the disclosure, the SEC created a new securities disclosure form – Form SD, for “Specialized Disclosure” – that must be filed annually with the SEC.  In short, it is difficult to imagine what more Congress could have done to make the Rule bona fide securities disclosure. 
However, when the D.C. Circuit reviewed the Rule in NAM v. SEC, it refused to analyze it as securities regulation.  The majority opined that the Rule “is not employed to sell securities” and only once referenced investors as a possible audience for the disclosures.  Instead, the court characterized the Rule as commercial disclosure, i.e., disclosure to consumers.  “The label ‘conflict free’ is a metaphor,” the court wrote, “that conveys moral responsibility for the Congo war.  It requires an issuer to tell consumers that its products are ethically tainted.” 
But the D.C. Circuit’s assertion was flat-out wrong: the Rule doesn’t require issuers to make any disclosures to consumers.  Consumer disclosures take well-recognized forms: product labels, point-of-sale disclosures, and advertising disclaimers.  No such disclosures were required by the Rule.  If consumers want conflict minerals information about products, the best place to get it is the SEC’s EDGAR database – the only place where conflict minerals information is archived.  In this way, conflict minerals information is no different from garden-variety securities disclosure, like executive compensation data, that interests investors and non-investors.

Read more »

Wednesday, May 06, 2015

Solutions to Polarization

Nate Persily

Cambridge University Press has just released -- Solutions to Political Polarization in America -- a volume I edited that grew out of a Hewlett Foundation conference on the topic.  It features short essays with reform proposals from the top political scientists who study political polarization.  A table of contents appears below.

Introductory Chapters
1 Introduction  
Nathaniel Persily
2 Causes and Consequences of Polarization
Michael J. Barber and Nolan McCarty
3 Confronting Asymmetric Polarization
Jacob S. Hacker and Paul Pierson

Reforming the Electoral System
Polarization and Democratization
Arend Lijphart
5 Eroding the Electoral Foundations of Partisan Polarization
Gary C. Jacobson
6 Solutions to Polarization
Elaine C. Kamarck
7 Geography and Gridlock in the United States
Jonathan Rodden

Strengthening Parties
8 Stronger Parties as a Solution to Polarization
Nathaniel Persily
9 Reducing Polarization by Making Parties Stronger
Nolan McCarty
10 Focus on Political Fragmentation, Not Polarization: Re-Empower Party Leadership
Richard H. Pildes
11 Two Approaches to Lessening the Effects of Partisanship
Bruce Cain

Empowering and Informing Moderate Voters
12 Data Science for the People
Adam Bonica
13 Using Mobilization, Media, and Motivation to Curb Political Polarization
Markus Prior and Natalie Jomini Stroud

Lowering Barriers to Policy Making
14 Beyond Confrontation and Gridlock: Making Democracy Work for the American People
Alan I. Abramowitz
15 American Political Parties: Exceptional No More
David Karol
16 Partisan Polarization and the Senate Syndrome
Steven S. Smith
17 Finding the Center: Empowering the Latent Majority
Russell Muirhead
18 Making Deals in Congress
Sarah A. Binder and Frances E. Lee
19 Helping Congress Negotiate
Jane Mansbridge
20 Staying Private
George C. Edwards III

Tuesday, May 05, 2015

Conscience, Discrimination, and Marriage Equality: Are Analogies to 1964 -- and 1967 -- Inevitable?

Linda McClain

Here is a blog post that I contributed to a recent online symposium on "RFRA in Indiana and Beyond," at Cornerstone, the blog of the Religious Freedom Project at Georgetown University's Berkeley Center for Religion, Peace, and World Affairs. The symposium examined the recent controversy in Indiana over its Religious Freedom Restoration Act and subsequent "fix" or "clarification bill."  The symposium asked about whether religious freedom of small business owners should "protect them from having to act against their consciences" or whether such protections would open the door to "wide-ranging and unjust discrimination."  Other contributors include Steven D. Smith, Ira Lupu and Robert Tuttle, J. Stuart Adams and Robin Fretwell Wilson, and Ralph C. Hancock.  My post asks why the Civil Rights Act of 1964 and Loving v. Virginia (1967) are  such resonant historical reference points for so many people when considering these calls to protect religious conscience in the marketplace, including some Republican critics of the recent Indiana and Arkansas RFRAs (and the earlier Arizona law vetoed by Governor Brewer). At the same time, proponents of robust protection of religious conscience insist that the cases are wholly distinct:  today’s sincere religious believer who adheres to the one man-one woman definition of marriage has no resemblance whatsoever to an earlier era’s white supremacist or bigot who opposed integration in all spheres of life, particularly marriage. They also argue that changing civil marriage laws seriously threatens religious liberty and resist any comparison between a refusal to provide goods and services on the basis of race and present day refusal on the basis of belief in “traditional” marriage. I conclude that how one evaluates the “fix” of Indiana’s RFRA may hinge on how one views conscience and morality at work in the controversy.

The Constitution: An Interview with Mike Paulsen and Luke Paulsen-- Part Two


This is part two of my interview with Mike Paulsen and Luke Paulsen about their new book, The Constitution: An Introduction (Basic Books, 2015).  Part one of the interview appears here.

* * * * *

JB: Any book on the Constitution will be controversial to somebody. Mike, you are generally a proponent of strong presidential power, and you are also one of the most prominent critics of Roe v. Wade in the American legal academy. In the final chapter of the book, which discusses the modern period, it's almost impossible to avoid saying something that someone will disagree with. Nevertheless, I notice that you try very hard to be even-handed, although it's pretty clear to the reader what you think. What was your basic philosophy in dealing with modern controversies about the Constitution? What were some of the choices that you made in deciding how to present material about which you had strong opinions?

Mike Paulsen: The last chapter was truly the hardest to write!  The basic decision we made was to embrace the theme for this chapter that the modern era is one of renewed "Controversy" over the meaning and application of the Constitution, and to be both up-front about our views and try doubly hard to fair to opposing views.  I'm personally gratified, Jack, that you can see the effort to be even-handed. And we think part of the effort at "fairness" also lies in not trying to disguise our views when we have them.  We wrestled hard with how to write about Roe v. Wade. Yes, Jack, as you know we first became better acquainted when you invited me to Yale to be one of the opposing viewpoints for your book "What Roe v. Wade Should Have Said" -- and I stunned the audience with a (seemingly unfamiliar!) views that Roe was the most clearly wrong decision, and the greatest atrocity, to that point in the Court's history.  

In the book, we set forth the arguments on each side -- more dispassionately -- and what our evaluation is of each one.  We make clear where we stand.  But mostly, we try to highlight the problems with Roe by situating it within the broader historical context of other situations in which the Court has strayed rather far from the constitutional text in the name of effectuating what was believed (at the time) to be good-and-true-and-desirable social policy -- Dred Scott, Plessy, Buck v. Bell and others.  Even for those who favor the result in Roe as a policy matter, this is a challenging interpretive problem: Is it legitimate for courts to stray from the constitutional text, or not?  If so, what constrains them?  What keeps courts, unleashed from the text, from advancing what folks might think terrible social policy?  Is there not a case for leaving social policy to the democratic process and the choices it produces?  All of these debates are familiar to readers of Balkinization (and to many in society generally).  In the book, we try to frame the debate fairly, give a sense of the stakes, say where we stand and why, point out analytic problems and weaknesses with judicial decisions, and then leave it to the readers' judgments.  

There are any number of modern-day issues of this sort.  We didn't want to treat them in an over-delicate manner, as if afraid to engage.  (Down that road lies the Great Error of school textbook editors, who massage controversy into mush -- and inaccuracy.)  Instead, we tried to treat them in an engaging manner -- one that invites ongoing discussion, rather than screaming insistence on a particular view.  

Ironically, our strongest, most strident criticisms, come in the context of disputes and decisions of bygone eras.  We are pretty unreservedly critical of the framers of the Constitution for their accommodation -- bordering on embrace, support, and encouragement -- of the atrocity of slavery.  We engage in harsh denunciation of Dred Scott.  And our bitterest critique seems to come, as noted before, in Chapter Eight, where pretty much every major decision of the Court -- Bradwell, The Civil Rights Cases, Plessy, Giles, Berea College, Buck v. Bell, Lochner, The Insular Cases, Schenck, Debs, you name it -- seemed to amount to a "Betrayal" of the great advances in the constitutional text made in the wake of the Civil War.   

Balkinization readers tend to lean left.  Other bloggers and reviewers on the right have found -- and will find -- things they disagree with, too.  Already, some of my more right-leaning friends have taken mild issue with our seeming embrace of a broad, "Hamiltonian" view of the scope of Congress's enumerated powers -- including defense of the Court's conclusions in the New Deal-era commerce clause cases, and even NFIB v. Sebelius.  

So, you're right: To engage the Constitution, and the decisions of the Supreme Court, in a nothing-up-our-sleeves fashion, is to say things that someone will disagree with.  We're pretty open about acknowledging that there will be room for disagreement with some (or a lot) of what we say.  (That is, in part, why we style the book as "An Introduction" -- it is not the only possible way of teeing up these questions -- and also "An Introduction" -- this is hardly the last word on the Constitution!)  We have no doubt that some of what we say will be controversial to some folks; different folks will find different things with which to disagree.

Luke Paulsen: In editing Chapter 10, I found that it was extremely easy to distinguish two kinds of passages: those that might be taken as reflecting a political viewpoint, and those that took and defended specific legal positions on the basis of clear, consistent reasoning. And I'd like to think that we were able to sift out most if not all of the passages of the first kind. In the discussion of Roe v. Wade especially, we were careful to present the legal arguments faithfully and evenhandedly-- and, separately, to discuss the real-life import of the decision. (In Chapters 6 and 7 we gave a similar treatment to Dred Scott v. Sandford, which is easily Roe's equal in its influence and practical consequences.) We also made sure, in passages that might attract disagreement, to present where our conclusions were our own-- not those of other scholars, and not necessarily those of the reader. What we want readers to take away from our discussions is the process of thinking and talking about the Constitution, more than any specific legal result.

Read more »

Monday, May 04, 2015

The Constitution: An Interview with Mike Paulsen and Luke Paulsen-- Part One


I recently spoke with the father and son team of Mike Paulsen and Luke Paulsen about their new book, The Constitution: An Introduction (Basic Books, 2015)  This is part one of a two-part interview.  Part two will appear tomorrow

JB: Why did you write this book?  What is the audience you are hoping to reach? How would you say this book differs from the dozens of books published every year on the Constitution and the Supreme Court?

Mike Paulsen: Thanks for "interviewing" us, Jack!  We're grateful for the chance to connect with Balkinization's readers and bloggers.  Thanks for your generous hospitality.  

The story of how the book came to be is fairly straightforward.  I had given a lecture at an institute at Princeton way back in the winter of 2006 -- on Lincoln, Presidential Power, and the Emancipation Proclamation (topics eventually addressed in this book!).  Following the lecture, at the usual academic dinner, the college profs and law profs began arguing about just how and when their students got such messed up notions about the U.S. Constitution.  The law profs blamed the colleges; the college profs blamed the high schools; everybody blamed the shallow media and textbook treatments generally. 

I ventured that "somebody" really ought to write a book trying to set forth the essentials of the Constitution -- origins, meaning, history, interpretive disputes -- in a straightforward, smart, concise, and reader-friendly way that would correct many myths and half-truths.  The idea would be to reach general readers -- students, non-lawyer citizens, journalists,real people -- with (hopefully) sound factual information and reasonable analysis, teeing up all the major historical and modern debates in an intelligent way.  Such a book could not be superficial and sloppy -- it would have to be "smart enough" for academics, even if not aimed merely at academics.  But it had to be accessible and readable, too.  And it would also have to be fair and not a screaming ideological screed.  

Of course, my dinner companions challenged me to write it.  I took the idea home to Luke, my then-thirteen-year-old son, who liked the idea.  He'd just finished eighth grade Government, and we'd occasionally laugh together at the textbooks that said things like "The Supreme Court invented the idea of 'judicial review' in Marbury v. Madison, which held that the Supreme Court is the supreme interpreter of everything in the Constitution and can determine what it means and change it over time."  (The hazards of being a law professors' son, I suppose.  I'd like to think that our discussions were part of his early education, and not a bizarre form of child abuse!)
Luke and I decided to take up the idea as a summer vacation project.  We underestimated how long it would take -- by a factor of about eight years! -- but we wrote it almost exclusively during summer breaks, a large part of it at our island cabin in extreme northern Minnesota.  Originally, the book might have been aimed at younger students -- high-school age or so -- but our ambitions and the book's sophistication grew over the years.  (Luke went from being a high school freshman to a Princeton Phi Beta Kappa computer scientist, and now a software engineer in Silicon Valley.  His legal acumen grew tremendously over this time.  He may be one of the most sophisticated lay constitutional interpreters never to have been corrupted by a law school education!)  

Now, we'd like to think that the book is the (!?) definitive, concise, modern introduction to the Constitution.  It comes in at just over 300 pages, and treats the Constitution in all major respects:  its origins at the Constitutional Convention; its structure, design, and broad themes; the meaning of its core provisions assigning powers and protecting specific rights; its awful accommodation of slavery; and then -- fully the second half of the book -- its history of interpretation over 225 years' time.  

We were surprised to find that there is, really, no other book exactly like this.  On the one hand, there are massive, dense, sophisticated scholarly tomes and treatises.  But those are too daunting for many.  (I still think that the best book, other than The Federalist, on the Constitution is my old friend -- and former law school roommate -- Akhil Amar's America's Constitution: A Biography.  It's just double or more the length, and doesn't cover the history of the Constitution's interpretation.  By the way, thanks to Akhil, and to so many others, who read the book in draft and provided insightful, critical comments.)  

There are also many excellent books that focus just on specific constitutional issues, or on debates over constitutional interpretive methodology, or that are histories of the Supreme Court and its decisions specifically.  Some of these are a little too "academic" for most readers; others are terrific but of limited scope. 

Then, on the other side of the ledger, there are the somewhat embarrassing, quick-and-dirty "citizens' guides" that aren't really of much use -- and often perpetuate the shallow treatment and mythology of the popular press and of school textbooks.  Finally, there are the ideological tirades that don't even try to be fair to opposing viewpoints: preachings to different choirs, right and left.  

We've aimed right down the middle.  300 pages is better than 600 (in many respects).  And it's better than 100, too.  Comprehensive, concise, and readable is our goal.  And while the book takes positions on important constitutional questions, we try to lay them out fairly and note where we depart from the standard modern consensus.  

We also sought, throughout, to make the narrative lively and energetic.  That pretty much came naturally, but we had to bear in mind the needs of a (hoped-for) broad readership.  For you, Jack, and others well versed in constitutional law, these things are just intrinsically interesting.  But -- inexplicable as it might sound to you, me, Luke, and many if not most of your readers! -- one first-blush reaction I've had from non-lawyer, non-history, non-government, non-political types is "Wow, a book on the Constitution. Three hundred pages?  How do you keep it interesting?  Is there really that much interesting to say?"  One of the attractive features of the book, we hope -- making it more interesting to lay readers and probably to seasoned constitutional veterans as well -- is that we try to tell a story about the Constitution and to intersperse that narrative with the specific stories of many interesting constitutional characters, from Hamilton and Madison to Roger Taney to John Calhoun to Frederick Douglass to Dred Scott to Lincoln to Myra Bradwell to Eugene Debs (what a character!) to FDR to Robert Jackson to the Hirabayashi, Korematsu, and Endo, to Norma McCorvey to Thurgood Marshall . . .  

So, that's a very long way of saying that we're hoping that the "audience" is, well, everyone.  Legal scholars will, I hope, find much to engage their interest (and occasionally provoke discussion and debate).  Scholars, activists, and engaged citizens -- readers of Balkinization, both on the right and the left -- will, we think, find much value in it.  And lay readers, interested in history, politics, and government, who are looking for the "one book" that they really ought to read on the Constitution -- as a point of entry to this intriguing topic -- should start here, we think!  (But not end here, of course.)  
Read more »

Defending the sex discrimination argument from the left

Andrew Koppelman

Some of the recent criticisms of the sex discrimination argument for same-sex marriage have come from the left, arguing that the argument does not do justice to the reality of discrimination against lesbians and gay men.  The argument in fact does not do it justice, but this is true of legal argument generally.  I responded to such arguments in some detail in a 2001 article, responding to criticisms from Edward Stein.  In light of the renewed interest in the sex discrimination argument, I'm posting that article onto SSRN.  It is here.  Here is the abstract:

Edward Stein’s is only the latest and most systematic of a growing number of criticisms of the sex discrimination argument, from the left and the right. Stein’s doctrinal objections to the argument misconceive the reach of present doctrine, which treats all sex-based classifications with deep suspicion. His empirical doubts misapprehend both the argument’s claims and the enduring connections between heterosexism and sexism. His only persuasive claim is his moral objection, which argues that the sex discrimination argument ignores, and may render invisible, a central moral wrong of anti-gay discrimination. This is a profound moral difficulty, but it is one that is present in almost any legal argument, and perhaps in language as such. It therefore cannot be an objection against any particular argument.

Friday, May 01, 2015

The sex discrimination argument for same-sex marriage, in full

Andrew Koppelman

At the oral argument in the Supreme Court's same-sex marriage case this week, Chief Justice John Roberts asked:  “if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t.  And the difference is based on their different sex.  Why isn’t that a straightforward question of sex discrimination?” That question has generated renewed attention to the sex discrimination argument.  Ilya Somin reviews some of what's been written in the past few days, and capably responds to it, here.

All of the argumentative moves that are being made now, and others that people will probably think of in the next few weeks, are considered in an overlong article I wrote in 1994.  It is available here.  A critical response to the resistance of lower courts to the argument is also available, here.

Wednesday, April 29, 2015

An idea whose time has gone

Andrew Koppelman

Nothing is stronger than an idea whose time has gone. Yesterday’s Supreme Court argument showed as clearly as anything could have that same-sex marriage will prevail, not only because of the strength of its arguments, but because those arguments meet no resistance: The opposing view has become incomprehensible.

I elaborate on this argument at, here.

The sex discrimination argument, which I’ve developed in an amicus brief in the case (coauthored with Ilya Somin) and elsewhere, is nicely profiled in today’s New York Times, here.

Older Posts