Balkinization  

Tuesday, August 20, 2019

CFP: National Conference of Constitutional Law Scholars

Andrew Coan

The Rehnquist Center is pleased to announce the third annual National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 20-21, 2020. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

Jack Goldsmith will deliver a keynote address. Distinguished commentators for 2020 include:

  • Mitch Berman
  • Joshua Chafetz 
  • Vicki Jackson
  • Maggie Lemos
  • Melissa Murray
  • Jane Schacter
  • Lawrence Solum

All constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by October 1, 2019. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by November 1, 2019. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

The Rehnquist Center will provide breakfast and lunch for all registered conference participants. Participants must cover travel and lodging costs. Hotel information will be provided as the date approaches. There is a conference registration fee of $200, which will increase to $250 after March 10, 2020. Registration fees will be waived for conference presenters and for students and faculty at UA Law. In addition, a limited number of scholarships are available to those unable to attend the event otherwise.

Please send all submissions or related questions to Andrew Coan: acoan@email.arizona.edu
For logistical questions please contact Bernadette Wilkinson: bwilkins@email.arizona.edu

CONFERENCE ORGANIZERS

  • Andrew Coan, Arizona 
  • David Schwartz, Wisconsin 
  • Brad Snyder, Georgetown


REGISTER NOW



Friday, August 16, 2019

Epistemic Closure Redux

Mark Tushnet

Amity Shlaes and Josh Blackman responded to my post on Justice Gorsuch's references to her book in Gundy v. United States. I have written a too-long-for-a-blog-post response, available here. The abstract is this:

In Gundy Justice Gorsuch offered two characterizations of the facts in the Schechter case: (1) “Kosher butchers such as the Schechters had a hard time following [the rules that required ‘straight-killing’ of chickens].” (2) “Yet the government apparently singled out the Schechters as a test case; inspectors repeatedly visited them and, at times, apparently behaved abusively toward their customers.” Justice Gorsuch relied upon Amity Shlaes’s book The Forgotten Man to support these assertions.

In a blog post I criticized Shlaes’s account, and used Justice Gorsuch’s reliance upon it to illustrate what I called epistemic closure in the construction of the law – by which I meant the reliance upon a closed set of sources written by authors who generally shared a specific outlook on the way the world works.

Josh Blackman and Shlaes responded to my criticism. But, as I show here, their responses are largely mistaken and (or perhaps because) undertheorized because of their failure (or perhaps inability – an inability that may be intrinsic to the process) to recognize the existence of epistemic closure.

Wednesday, August 14, 2019

Symposium on Fidelity and Constraint: Collected Posts

JB


Here are the collected posts for our Balkinization symposium on Lawrence Lessig's new book, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution (Oxford University Press, 2019).

1. Jack Balkin Introduction to the Symposium.

2. Ryan Doerfler, Working with What We've Got.

3. Pamela Brandwein, The Incompleteness of Fidelity Theory.

4. Gerard Magliocca, What is a Judge?

5. Lawrence Solum, Fidelity, Translation, and Originalism: Thoughts on Lessig's "Fidelity and Constraint".

6. Jack Balkin, “It is emphatically the province and duty of the judicial department to say what the social meaning is.”.

7. Sandy Levinson, Lessig, "translation," and institutional legitimacy.

8. Mark Graber, Translation as Constitutive.

9. John Mikhail, Lessig's Defensive Crouch Constitutionalism.

10. Lawrence Lessig, Lessig replies.







Tuesday, August 13, 2019

"The New Rambler" relaunch

Mark Tushnet

The New Rambler, an on-line review of books that had a short-ish but distinguished run a few years ago, has relaunched. I review the terrific Legacies of Losing in American Politics by Jeffrey Tulis and Nicole Mello here.

Lessig replies

Guest Blogger

For the symposium on Lawrence Lessig, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution (Oxford University Press, 2019).

I am grateful to Jack Balkin and the Balkinization blog for the careful and powerful collection of review essays based on my book Fidelity & Constraint (2019). I have perhaps tried to do too much in a single volume. I am eager to engage with these thoughtful and charitable responses to what I have attempted to do.

As the reviews summarize fairly and clearly, my book describes the history of the Supreme Court’s interpretation of our Constitution as a dance between two kinds of fidelity — a fidelity to the meaning of the Constitution, and a fidelity to the role of the courts, the Supreme Court especially, but courts quite generally. These two fidelities often complement each other. They sometimes conflict. My argument is that we can understand the development of the Supreme Court’s doctrine, at least within the fields I’ve described, through the interaction of these two fidelities. These fidelities explain the course of these doctrines. And in the end, as I argue, a practice that respects these two fidelities is justifiable, at least for our constitution, within our tradition.

Read more »

Friday, August 09, 2019

Translating the Constitution

JB

I have just posed a draft of my latest piece, Translating the Constitution, on SSRN. This is a review of Larry Lessig's new book, Fidelity and Constraint, and expands on my contribution to our recent Balkinization symposium on the book.

Here is the abstract:

Lawrence Lessig's recent book, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution (Oxford University Press, 2019), restates and expands his important and influential theory of interpretive fidelity as translation.

This book review is in three parts. Part One explains why, although Lessig's theory is based on fidelity to original meaning, his originalism is unlike most contemporary versions. Indeed, despite his metaphor of translation, Lessig is not really a textualist at all. Unlike most contemporary originalists, he pays relatively little attention to parsing the words of constitutional text, or to their history. Instead, he is a purposivist and structuralist, who argues that fidelity to purpose and structure in changed contexts may sometimes justify departing from the text or adding things to the text.

Part Two examines Lessig’s use of the concept of social meaning to explain and justify many of the Supreme Court’s most famous liberal decisions, including Brown v. Board of Education, the sex equality cases, the reproductive rights cases, and the gay rights cases. Lessig's concept of "social meaning" actually refers to changes in elite consensus among the relatively small groups of elites who form the audience for Supreme Court Justices. Lessig's arguments are an imaginative restatement of the American Legal Process tradition, but using a different vocabulary. In an age of polarized elites like today, however, Lessig's social meaning account threatens to break down, as Lessig himself recognizes.

Part Three considers whether a purely internalist theory of constitutional change like Lessig’s is adequate to explain the growth and development of the American Constitution. It argues that Lessig’s account of change relies too much on how the world looks to the Justices, rather than on how the world actually changes; it also relies too much on winner's history. His account could be made stronger by focusing on the role of political parties, social movements, and state-building in constitutional change; and the long-term construction of judicial review by the political branches. The result would no longer be purely internalist. But it might be a more powerful account of the complicated processes of constitutional change.

Thursday, August 08, 2019

What Congress’s Budget Deal Does

David Super


     Media accounts of the budget agreement President Trump signed August 2 have been all over the map.  It therefore seems useful to describe what it does and does not do. 

     First, it suspends the statutory debt ceiling until July 31, 2021.  The alternative would have been for the Treasury to have been unable to pay all the federal government’s bills as soon as early September.  This is widely regarded as likely to frighten financial markets and undermine confidence in the stability of the U.S. government.  Prior projections had suggested that the Treasury could execute bookkeeping pyrotechnics to live within the current debt limit well into the fall, but the 2017 tax legislation reduced corporate tax receipts more sharply than had been anticipated. 

     This adjustment of the debt limit, like the last several, treats the debt limit as a date rather than an amount.  Any debt incurred through July 31, 2021, effectively does not count against the debt limit.  After that date, the Treasury cannot incur additional debt without further legislation.  It then may return to financial pyrotechnics and continue to pay the federal government’s bills for a few more months. 

     Second, the budget deal sets new ceilings for discretionary appropriations for federal fiscal years 2020 and 2021.  Without this legislation, Congress would be obliged to adhere to the draconian levels set in the Budget Control Act of 2011.  Few serious Members of Congress from either party believe those levels are realistic (although, predictably, Republicans find the defense cap intolerable while Democrats worried about the non-defense discretionary appropriations limits).  Failure to adhere to these ceilings would have resulted in across-the-board cuts similar to those implemented in 2013. 

     Contrary to some media accounts, the new appropriations ceilings are not generous.  Instead, they only suffice to prevent large additional degradation of government functions.  Claims that they provide large amounts of new funding rely on comparisons with the unrealistic Budget Control Act levels that would have required deep programmatic cuts.  The new ceilings are roughly comparable with those in federal fiscal year 2019, the current year.  (They do allow for additional funding to prepare for next year’s decennial census without having to cut other programs to pay for it.) 

     After adjustment for inflation, these levels are still considerably below those from Fiscal Year 2010, the last year before congressional Republicans succeeded in getting President Obama to accept austerity to address deficits driven by the Great Recession.  The shortfall is even greater if one also adjusts for the roughly one percent annual increases in population.  The same inflation-adjusted appropriation cannot serve additional children and pregnant women needing WIC food assistance, additional visitors to our national parks, additional children needing child care, and so forth.  Similarly, the budget deal will keep discretionary spending near historic lows as a fraction of total economic output. 

     Third, although the budget deal does not directly resolve any spending disputes except the overall levels of defense and non-defense discretionary appropriations, it significantly reduces the likelihood of a government shutdown this fall.  Ceilings close to the inflation-adjusted current levels will force fewer difficult choices that could divide Republicans from Democrats than would the Budget Control Act levels.  Congress and the President still have a long way to go, however, to set spending for specific programs in fiscal year 2020, which begins October 1. 

     As previously noted, although the House has passed ten of the twelve annual appropriations bills required to fund the federal government, the Senate has not even begun to move any of these bills.  Senate staff are working over the current recess to try to craft appropriations bills.  These may see action in subcommittees, or possibly the full Senate Appropriations Committee, but few if any likely will reach the Senate floor.  (Sen. McConnell still has many judges to confirm.)  As soon as the Senate appropriators write their bills, informal negotiations will begin with the House. 

     Few if any appropriations bills likely will yield bicameral agreements by September 30 so Congress likely will have to pass a continuing resolution to fund the government until late Fall.  Whether Congress and the President will be able to agree to a full set of appropriations bills, or if not which ones will be left behind and subject to government shutdowns, is difficult to predict at this point.  Presumably each party will insist on passing some of its favorite appropriations bills on which agreement has been reached as a price for passing settled bills that the other party prioritizes.  The parties appear to have agreed not to include any riders (substantive limitations on how appropriated funds may be spent) to which either party strongly objects.  Still, the sheer number of controversies in these bills, and the President’s increasing disinclination to defer to his staff or allow them to speak for him, may make negotiating final funding levels challenging. 

     Finally, this budget deal represents the final demise of the Budget Control Act.  The Act’s caps only ran through 2021 and so now have been wholly superseded.  In a sign that the Act has long-since lost all credibility as budget policy, Democrats were able to force Republicans to drop demands to extend those caps or to make cuts in entitlement programs to pay for the increases in the caps this year.  (Previous biennial bipartisan cap-raising deals had included such offsets.)  Given the damage the 2017 tax act did to the country’s fiscal position, Republicans apparently did not want a serious debate about culpability for large deficits.  Whether the political system will permanently accept the obvious lesson – that neither party feels deeper cuts in discretionary spending will be acceptable to their constituents – remains to be seen. 

     @DavidASuper1

Monday, July 29, 2019

Can Congress Investigate Whether the President Has Conflicts of Interest, is Compromised by Russia, or Has Violated the Law?

Marty Lederman


           The answer to the question in my title is obvious, isn't it?:  Of course Congress can do so.  According to Donald Trump and his (personal) attorneys, however, the correct answer is “no.”  And in a series of pending cases involving challenges to congressional efforts to obtain the President’s financial and tax records, they’re urging the courts to hold that Congress’s oversight and regulatory authorities simply don't extend to investigating the wrongdoing, foreign influence over, and possible conflicts of interest of, the President of the United States.

It’s hard to exaggerate just how profound a challenge this is to our longstanding system of checks and balances.  Yet these cases, and Trump's arguments in them, have mostly flown under the radar: They haven't received much attention in the press or among legal observers.  Perhaps that's as it should be:  After all, if the arguments are as extreme as I'm suggesting, maybe there's nothing much to worry about.  The Trump team is deadly serious, however; the Department of Justice might come to its aid; and it’s possible Trump’s lawyers will find a receptive audience among at least some Supreme Court Justices.  Therefore I thought it might be worthwhile to unpack those arguments a bit in this post.

Background on Congress's Oversight Authority and "Informing" Function

For virtually all of its history, going back at least to the 1792 House investigation of the St. Clair expedition, Congress has exercised its “oversight” powers to investigate the executive branch—not so much to assist the legislature in the shaping or enactment of federal laws (although that’s certainly one common result of such oversight), but rather, to inform itself, and the public, of how the federal government is working, and of any possible problems in its operation, including corruption, malfeasance, poor judgment, inefficiencies, foreign influence, etc.

Woodrow Wilson penned the canonical articulation of this congressional “informing” function and its virtues in his 1885 book, Congressional Government:

It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees.  It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents.  Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. The argument is not only that discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self-governing people is that people which discusses and interrogates its administration.

As the Supreme Court has noted (citing Wilson), “[f]rom the earliest times in its history, the Congress has assiduously performed an ‘informing function’ of this nature.” Watkins v. United States, 354 U.S. 178, 200 n.33 (1957).  We’re all very familiar with it—indeed, you’ve probably seen it in action far more frequently than you’ve witnessed hearings designed to help craft new legislation.  Think of Watergate, and Whitewater, and Iran-Contra, and Benghazi, and “Fast and Furious,” and (much earlier) the Teapot Dome Scandal—and many more.  Indeed, many Americans likely assume, based simply on what they’ve witnessed on television, that investigating the executive branch is the primary thing Congress does—and in an era where Congress enacts almost no important legislation, it’s perhaps the most important congressional function, too.  

As Wilson’s famous description suggests, the function of informing Congress and the public about the workings—and possible dysfunctions—of the government and its officers plays at least two critical roles in our system: 

First, and most directly, it facilitates the ability of a “self-governing people” (Wilson) to understand how their government is operating, which, among other things, gives the people the knowledge necessary to decide how to shape and regulate that government—and to decide who the officers of the government ought to be going forward.  See Watkins, 354 U.S. at 200 (“The public is, of course, entitled to be informed concerning the workings of its government.”).

Secondly, congressional inquiry and oversight is an absolutely critical deterrent to executive wrongdoing and maladministration—in Wilson’s words, “discussed and interrogated administration is the only pure and efficient administration.”  As Professor Bill Marshall—a former Deputy White House Counsel—has written, “Congress’s power to investigate plays a critical role in the checks and balances of U.S. democracy. . . .  Without some outside check on the Executive Branch, there would be little to discourage unscrupulous officials from acting in their own, and not in the nation’s, best interests.” 

It’s difficult to overstate the practical significance of this second, “checks and balances” function of congressional oversight:  As virtually anyone who’s worked in the executive branch will attest, the prospect (or threat) of having to explain one’s self, and one’s decisions, to a congressional chair or staff, or in congressional hearings under the harsh glare of network lights, has a significant impact on how one performs her work as an official--it tempers any impulses to overstep, cut corners, or disregard norms designed to protect the public interest.  Not surprisingly, then, the Supreme Court has described Congress’s “informing function” as “indispensable,” and admonished that it’s “not to be minimized.”  United States v. Rumely, 345 U.S. 41, 43 (1953).

The Current Challenges

More than any other president, Donald Trump has extensive financial holdings; is obsessed with promoting and protecting his own wealth and reputation regardless of the national interest; has been unwilling to disclose details of his financial affairs and entanglements; and has a predilection for cozying up to foreign autocrats from nations that are hostile to the United States—one of which just so happens to have made elaborate efforts to distort the American electoral system in order to help get Trump elected.

Naturally, then, the House of Representatives is interested in learning about Trump’s finances, his possible conflicts of interest, whether he’s complied with the laws designed to prevent such conflicts (including the Foreign Emoluments Clause of the Constitution), and the ways, if any, in which the exercise of his duties on behalf of the nation might be compromised by his relations with foreign entities and nations, or by his other financial entanglements.  Accordingly, House committees have subpoenaed Trump's accountants (Mazars, Inc.) and his banks (Deutsche Bank and Capital One) to produce Trump’s own (and his family’s and businesses’) financial records within their custody, and the Ways and Means Committee has asked (and eventually subpoenaed) the Treasury Department to turn over Trump’s federal tax records.


Read more »

Saturday, July 27, 2019

How Sen. McConnell Would Justify Not Convening an Impeachment Trial

David Super


     Those urging the House of Representatives to impeach President Trump seem roughly to fall into two groups.  One sees a resolution of impeachment essentially as an end by itself, either as a moral duty or as a means of mass political education.  The other group sees impeachment as a step that could lead to the termination of the Trump presidency before January 2021. 

     As to the first group, I am uncomfortable with the indulgence of constructing abstract moral duties for ourselves on uncertain foundations at a time when an overwhelming, concrete moral duty – ensuring that President Trump is not re-elected – is upon us.  I also am skeptical that an impeachment process would educate or persuade swing voters so much as it would enrage and motivate the President’s supporters.  Today’s electorate is very different from that of 1973-74.  I will not, however, claim sufficient political expertise to have much of value to contribute on that question.

     As to the second group, however, a crucial part of the rationale for impeaching must be a plausible path from that act to the President’s early departure.  (Another part of the rationale needs to be a solid reason for preferring that Mike Pence be president, either in terms of the actions he would take or his prospects in the 2020 election.  That, too, I will leave to the side.) 

     I do not believe a plausible path exists from impeachment to removal or resignation.  Most analyses of this question focus on the Democrats’ need to secure votes for conviction from twenty Senate Republicans.  As I peruse the Senate’s roster, I cannot even come close to twenty plausible candidates even assuming serious new revelations.  But I do not believe that the number of Republican senators that would vote to convict is even relevant because I do not believe that vote would ever occur. 

     Based on his handling of Judge Merrick Garland’s nomination to the Supreme Court, I do not expect Senator McConnell to convene an impeachment trial.  As in 2016, this will generate considerable condemnation, but that outrage will come almost entirely from people who would not support Republicans anyway.  Moreover, it will be directed at Senator McConnell alone, leaving all other Senate Republicans free to say whatever is politically expedient, just as they did on the Garland nomination. 

     Senator McConnell’s political justification presumably will be the same one he relied on to sideline Judge Garland:  that an election is coming soon that will allow voters to decide for themselves.  He will be able to make his refusal to convene a trial stick as a practical matter either if the Democrats are unable to force a vote on the question or if fifty senators support him on that procedural vote. 

     To hold the support of his senators, Senator McConnell may need to construct an argument asserting that he is not, in fact, violating Senate rules and precedents.  Because he needs merely to make an argument that gives his senators sufficient cover not to intervene against him, I will lay out what I expect him to claim rather than assess whether this actually is the best reading of Senate rules and precedents.

     The story starts well enough for the Democrats.  Rule I of the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials requires that, when House managers notify the Senate that they wish to present articles of impeachment, the Secretary of the Senate “shall immediately inform the House of Representatives that the Senate is ready to receive” those managers.  Moreover, Rule III requires the Senate, at 1pm on the next business day, “to proceed to the consideration of such articles”.  In addition, once an impeachment trial starts, Rule III requires the Senate to meet every day (other than Sundays) “until final judgment shall be rendered”. 

     Senator McConnell likely would argue, however, that “proceed[ing] to the consideration of such articles” does not mean actually beginning a trial.  He will note that the rules call for the person who has been impeached to be personally served with notice of the date by which he or she must submit an answer to the articles under Rule X.  (If personal service cannot be had, Rule VIII suggests that an advertisement on Fox and Friends might suffice.)  The impeached person’s failure to enter an appearance does not prevent the trial from going forward:  he or she is treated as having pleaded “not guilty” and is tried in abstentia.   

     Senator McConnell would argue that this implies that the trial would start later and that no date for the trial need be set when the Senate meets the day after receiving the articles of impeachment.  He would also note that Rule XIII specifies the hour of an impeachment trial – 12 noon – but not the date. 

     Over the years, various statutes and Senate rules have established deadlines for the notoriously lethargic Senate to act.  Some have been more effective than others.  No such deadlines appear to apply directly to the holding of impeachment trials.  Senator McConnell would note that at least two judicial impeachment trials were not completed during the Congress in which they were initiated.  A common method of forcing business to the front of the Senate’s agenda is the privileged motion.  Clever readings of the rules permitting various privileged motions might allow Democratic senators to try to bring the issue to the floor.  The exceedingly complex procedural posture, however, likely would give Republican senators considerable cover to vote to sustain a point of order against such a motion.

     The one person who possibly could frustrate an attempt by Senator McConnell to avoid holding an impeachment trial is Chief Justice Roberts.  Article I, section 2, makes the Chief Justice the Senate’s presiding officer for impeachment trials of the president.  Arguably he assumes this status as soon as the House presents articles of impeachment.  If so, Rule VII instructs the Chief Justice to “direct all necessary preparations in the Senate Chamber”, which arguably includes setting a date for the trial.  Similarly, Rule XVI provides that “[a]ll motions, objections, requests, or applications whether relating to the procedure of the Senate or relating immediately to the trial” would be submitted to him.  Upon presenting articles of impeachment to the Senate, the House managers become parties and could present a request or application to convene the trial.  I very much doubt, however, that Chief Justice Roberts would have any inclination to challenge Senator McConnell, least of all on such an overtly political matter. 

     I note in closing my genuine amazement at the House Democrats’ handling of the days leading up to the Mueller hearings this week.  Even if they truly believed Mr. Mueller would be a cooperative witness – and he had given ample indications that he would not be – raising expectations that he would clearly describe “high crimes and misdemeanors” in a way the diffident public could understand all but guaranteed that the hearing would be perceived as a disappointment and play into the President's hands.  Although she cannot say so publicly, I cannot help wondering if Speaker Pelosi’s reluctance to proceed with impeachment reflects her assessment of the political skills of her Members who would be responsible for leading the effort.  Sam Ervin and Peter Rodino are nowhere to be seen. 

     @DavidASuper1

Thursday, July 25, 2019

Why We Should Impeach Now

Corey Brettschneider

My new piece for The Washington Post about why the Mueller hearings show impeachment needs to start now.
"If the president is reelected and serves his full term, the five-year statute of limitations on obstruction of justice will run out before he leaves office. Thus, reelection would almost guarantee that Trump will never stand trial for his crimes. The only way Congress can ensure Trump is ever held accountable is to begin impeachment proceedings."



Tuesday, July 23, 2019

LGBT Discrimination and the Subtractive Moves

Andrew Koppelman

The Supreme Court will shortly consider whether Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The lower courts are split on whether such protection is granted by the plain language of the statute. The judges who reject the discrimination claim argue that the statute does not prohibit activity that is explicitly within its scope, and which is part of the mischief that the statute aims to remedy. Their subtractive strategy, an innovation in statutory interpretation, comprises a number of different argumentative moves, with a common aim: to draw upon the cultural context at the time of enactment to avoid an unwelcome implication of a statute’s plain language. This strategy however maximizes judicial discretion and betrays the promise of textualism.

I develop this argument in a paper just posted on SSRN, here.  It  expands upon one section of the amicus brief that Prof. Bill Eskridge and I filed in Bostock v. Clayton County.

Reflections on Tushnet, Primus, Gorsuch, and the Law School Curriculum

Sandy Levinson

Both Mark Tushnet’s and then Richard Primus’s posts, each on Justice Gorsuch’s overconfident assertions about highly debatable matters of historical fact and intellectual analysis, raise important questions not only about judicial over-confidence when opining, but also about the education that judges bring with them to the bench.  

Consider the famous advice by Judge Learned Hand as to what lawyer-judges really needed to know in order to perform their tasks as civic leaders:

I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with books that have been specifically written about the subject.  (Hand, Sources of Tolerance, 79 U. Pa. L. Rev. 1, 12 (1930).

Hand’s comment is quoted in an essay by Richard Posner, Foreword: What Books on Law Should Be, 112 MICH. L. REV. 839 (2014), who follows it by his own comment:  “Forget it!  Modern judges are the product of modern American culture, which is philistine,” not to mention the obvious point that even the demands of non-philistine education change over time.  Posner, himself a noted polymath, is undoubtedly correct that “[t]oday Hand’s list would … be unlikely to include Acton, Maitland, Carlyle, or Bacon, all of whom are distinctly dated; they would make way for Mill and Nietzsche, Wittgenstein and Kafka, among many others.” Posner observes that most people make their acquaintance with such authors, whoever they might be, in their youth. Relatively few people start reading even Shakespeare for the first time as adults; the number is surely far smaller for Wittgenstein.  What Posner (and Hand) are really alluding to is a vision of education that prepares youngsters for a lifetime of returning to central canonical authors (even if the actual content of the canon shifts over time) and to realize, for example, that the story of the Trojan War, and its origins in the egos of various participants, set out in the Iliad, is all too relevant to the onset of many wars in our own time (with, perhaps, almost equally awful consequences both for the poor souls conscripted to do the actual fighting and the societies that become enmeshed in the ego-drive projects of their leaders).  Lawyers who mindlessly praises “zero-tolerance” policies of law enforcement are well advised to reread Measure for Measure, and so on.

From one perspective, Judge Gorsuch is unusually well-educated.  After all, he has a B.A. from Columbia, a J.D. from Harvard, and a D.Phil. from Oxford.  Most relevant is probably his degree from Columbia, which is unusual among contemporary American universities in continuing to require that their students take courses on the classics of what used to be called “Western Civilization” and today is apparently called simply “Contemporary Civilization.”  Columbia’s web site describes “CC,” a required two-semester sophomore course, as offering “surveys [of] the history of moral and political thought from Plato to the present.”  First-year students will have already taken a course on “Masterpieces of European Literature and Philosophy”  that “surveys, over two semesters, some of the most influential works in all of Western literature.”   I note, incidentally, that the current syllabus for CC includes John Locke.

            One assumes that current members of the U.S. Supreme Court are unusually well-educated among their cohort of lawyers.  But my point is that to the extent that is true, their truly relevant education, from Hand’s perspective, almost certainly occurred prior to the arrival at law school, whether they went to Harvard or to Yale, the alma maters of today’s entire Court (with an asterisk for Ruth Bader Ginsburg, who spent her final year at Columbia and actually holds a Columbia law degree). If students do not bring a broad education in, say, philosophy, literature, or history, they are unlikely to be forced to fill in the blanks once they arrive in Cambridge or New Haven. Michael Sandel’s famous Harvard undergraduate course on “Justice” has a typical enrollment of around 700 students, some of whom undoubtedly go on to attend the Harvard or Yale law schools.  But neither, to my knowledge, requires that their students thereafter take courses that systematically analyze various approaches to defining “justice.”  To this extent, they are all like Gorgias’s school of rhetorical arts, the subject of Plato’s Gorgias dialogue, in which no attention is paid to whether or not the students in fact can distinguish the just from the unjust, or the right from the wrong.  (And, I discovered in teaching the Gorgias for a number of years as part of my course on “the legal profession,” that most students are appalled by the idea that their views about such matters would be taken into account in deciding whether or not to admit them to law school and to teaching them the arts of legal-rhetorical argument.) 

For better or worse, incidentally, those students who arrive at law school “insufficiently” trained in economics, are in effect forced to pick up skills in basic economic analysis, given the pervasiveness of “law-and-economics” in every aspect of the contemporary legal curriculum, including constitutional law. But this is not at all true, say, of picking up the skills necessary to analyze complex data and statistical argument.   (Ans so we get the suspender-snapping prideful illiteracy of Chief Justice Roberts, who dismisses such argument as "gobbledygook" irrelevant to understanding the realities of contemporary gerrymandering, etc.)  And, frankly, even those students who took some American history as undergraduates are increasingly likely to know only American social history.  As important as that is, one can still lament that fewer and fewer students are really familiar with what today seems a decidedly old-fashioned knowledge of American political history or even American i(or more general) ntellectual history insofar as that almost necessarily focuses on books written by highly literate members of elites who could get their scribblings published.  

It is often painful enough to read debates among the justices about the meanings of past precedents. See, e.g., the shouting match between Chief Justice Roberts and Justice Breyer about Brown in Parents Involved (where I believe Breyer was clearly correct, for what that’s worth). It is excruciating, though, to read debates among the justices about controverted aspects of our history, as in the opinions of Scalia and Stevens in Heller.  As I wrote at the time, neither opinion would have been admissible as a paper in a half-way rigorous seminar on legal history at a major university.  It appears clear that the same is true of Gorsuch’s musings on the facts of Schechter, even though he had read a single book, by Amity Schlaes, from which he drew his description of the case.  

As already noted, Gorsuch has almost certainly read Locke’s Second Treatise, at least when he was a sophomore at Columbia.  That is to his credit.  But one wonders—I do not, obviously, genuinely know the answer—if he studied Locke more thoroughly, especially with regard to the nuances of “separation of powers” elaborated in Richard’s extremely thoughtful post.  Gorsuch’s Wikipedia entry indicates that while at Oxford “he took courses and defended a doctoral thesis, concerning the morality of assisted suicide, under the supervision of philosopher John Finnis.”  And if his ten years in private practice were typical, one assumes there was relatively little free time for deep reading in anything other than conventional legal materials.  One assumes that most of his intellectual non-practice time was spent preparing his 2006 book, The Future of Assisted Suicide and Euthanasia, an extremely interesting topic that, however, does not directly relate to the central issues posed by different theories of organizing the state, including the role of administrative agencies.  

I really do not mean to be picking on Justice Gorsuch.  My point is that I am not confident that I would assign the opinions of any of the current justices to students as sources of truly reliable information about controverted matters of history or philosophy.  Perhaps I’d feel differently if any of the clerks had Ph.Ds in those subjects.  I do regard it as remarkable that, at least to my knowledge, there have been remarkably few, if any, “law-and” clerks. (I in fact know of none, but that may be a sign of my ignorance.  I am quite confident, though, that the number, even if more than zero, is minimal.) [UPDATE:  I HAVE NOW BEEN INFORMED THAT TWO RECENT CLERKS, ONE FOR JUSTICE SOTOMAYOR AND ANOTHER UPCOMING FOR JUSTICE GINSBURG, ARE HARVARD HISTORY PH.Ds.  I HOPE THAT THIS IS THE TIP OF AN ICEBERG.  I WOULD BE DELIGHTED TO BE PROVED COMPLETELY MISTAKEN IN MY SURMISE.]

 One of Mark Tushnet’s most famous descriptions was “the lawyer as astrophysicist,” referring to the belief among the smart people who become successful lawyers, that they can master any subject, however arcane, in a weekend of intense study.  (This is linked, I suspect, to the belief that our favorite political candidates can truly master the arcana of complex public policy simply by being “briefed” in some of the details of the subject.  What does one really need to know, for example, in order to posit a belief in “Medicare for All” (via single payer or using private insurance, as in a number of European countries), as opposed to tweaking Obamacare (or, indeed, repealing it and beginning with something brand new?)  It is easier to presume that our favorites can indeed master the relevant materials than to come to terms with the fact that they really know very little about the subjects in which they are called upon to make crucial decisions.   (And when it’s Donald Trump and Boris Johnson, making the decisions, we might well wish instead to have chimpanzees throwing darts at boards!)

The ultimate topic, of course, is how, if at all, one translates “expert knowledge” (which itself is often the subject of vigorous dispute among the acknowledged “experts”) into decision-making by gifted amateurs, which in this context definitely includes enrobed judges (and all other political officials).  It would be insane to expect that they meet the standards to be hired to teach the young about history, philosophy, etc. at a decent university.  But does that mean that we should simply be tolerant of the degree to which their assertions about what we might regards as factual matters (or the analysis of a person’s thought, as with Locke) are altogether questionable?  Martin Flaherty wrote years ago about “History Lite,” i.e., the kind of history practiced by most legal academics and, even moreso, by judges drawing on historical materials.  Is there a “Goldilocks point” between unacceptable “history lite” and an unrealistic demand for “history heavy?  Ditto any other academic discipline that has wended its way into legal analysis.

And, finally, given that law schools take on the (monopolistic) task of teaching lawyers (and future judges), should those of us who are legal academics spend more time in unhappy argument about what (if anything) should be required of all of our students instead of continuing the de facto laissez-faire approach that allows students to take whatever they want after the first year (which, with rare exceptions, focuses entirely on traditional legal analysis, plus some law-and-economics)?  

Monday, July 22, 2019

John Locke, Justice Gorsuch, and Gundy v. United States

Richard Primus


An earlier post on this blog by Mark Tushnet explained that Justice Gorsuch’s dissent in Gundy v. United States, which fires a loud shot across the bow of the administrative state, contained something like a fictionalized account of the facts behind Schechter Poultry.  In Gorsuch’s presentation, the Schechters were caught between the regulatory demands of the New Deal and their own religious commitments.  “Kosher butchers such as the Schechters,” Gorsuch wrote, “had a hard time following these rules.  Yet the government apparently singled out the Schechters as a test case[.]”  In other words, the Schechters were victims of the government’s failure to accommodate their religious beliefs.  Worse yet, the government deliberately went after them, the people whose violations arose for religious reasons.  But as Tushnet explains, none of this is true.  Nothing about the Schechters’ violations of the New Deal’s Codes of Fair Competition arose from any need to comply with the rules for kosher butchering.  For the details, I highly recommend Tushnet’s post. 

                It’s not hard to see why the fictionalized version of Schechter would be appealing to Gorsuch, who has both a skeptical view of administrative governance and a robust view of the accommodations that government should make for religious believers.  But one ought also to presume that Gorsuch would not tell the story of Schechter this way if he knew it to be false.  The opinion-writing sin here, I’ll stipulate, is more likely confirmation bias than deliberate distortion: someone (Gorsuch cites the writer Amity Shlaes as his source) offered an account of Schechter that was congenial to Gorsuch’s views, and Gorsuch accepted it without sufficient interrogation.  That fallacious account now appears in the U.S. Reports as if it were factual.

                I rehearse all this as prologue to pointing out a second and likely similar problem in Gorsuch’s Gundy opinion.  This second problem is about John Locke, the Founders, and the separation of powers.  Unlike the hiccup about the Schechters, which is a matter of atmospherics at the periphery of Gorsuch’s opinion, Gorsuch’s treatment of Locke is part of his animating substantive argument.  It contributes directly to Gorsuch’s case for the proposition that broad legislative delegations to administrative agencies are at odds with the Constitution.

                Part I of Gorsuch’s dissent is introductory.  In Part II, Gorsuch builds his theory about nondelegation from the fundamentals of constitutional argument, going back to the text and the Founding.  In the third paragraph of his account, by way of explaining how the Framers thought about the separation of powers, Gorsuch quotes a passage a bit more than a hundred words long from John Locke’s Second Treatise of Government.  Locke was not a Framer of the Constitution: he lived in the wrong century and also in the wrong hemisphere.  But Gorsuch nonetheless confidently presents the passage from Locke as a statement of the “particular arrangement” on which the “framers insist[ed].”  Locke, says Gorsuch, was “one of the thinkers who most influenced the framers’ understanding of the separation of powers[.]” 

                Was he really?  Gorsuch’s dissent, which has a hundred and seven footnotes, cites no authority for the proposition that Locke shaped the dominant Founding conception of the separation of powers.  Other than his say-so, Gorsuch gives the reader no reason to think that the Framers meant to erect just the system of separated powers that Locke articulated in this quoted passage, written a hundred years before and three thousand miles away.  And there is serious reason to doubt that the Framers had any particular commitment to following Locke on the point.  Locke was, to be sure, an influential thinker in the English-speaking world during the eighteenth century: there’s a famous phrase in the Declaration of Independence that sure seems like a riff on his work.  But the fact that Jefferson riffed on Locke in the Declaration does not mean that Locke was pervasively influential in the formation of the Constitution. 

                For several decades now, leading scholars have cast considerable doubt on the idea that Locke’s political writing was particularly influential for the Founders.  (John Dunn and Mark Goldie are good examples, and what follows in this paragraph largely tracks their work.)  As a general matter, Locke’s high reputation as a philosopher in the first century after he wrote was mostly a function of his non-political work, especially his Essay Concerning Human Understanding.  Pro-independence Americans seem to have become significantly more interested in the Two Treatises of Government in the decade leading up to 1776, and it isn’t hard to understand why an argument by a renowned English philosopher that could be used to justify political revolution would have seemed attractive to that population at that moment.  But once independence was achieved, American interest in Locke seems to have declined precipitously.  When the project at hand was constructing a working government rather than rebelling against one, Americans looked elsewhere.  In this connection Goldie cites Duncan Forbes, who remarked about Locke that it is inappropriate to build a theory of marriage upon the occasional necessity of divorce.  In short, even if Locke was influential in the 1770s, he does not seem to have been a major influence in the formation of the Constitution.  Gorsuch’s opinion does nothing to meet, or even acknowledge, the accordingly problematic nature of turning to Locke as an explicator of the Framers’ ideas.

                The choice to use Locke as a guide to the Framers’ ideas about the separation of powers in particular is perhaps more problematic still.  Even if one is unaware of the historiography about the relationship between Locke’s various works and Americans in different decades of the eighteenth century, a reader of Locke’s political writings should realize that Locke’s view of the separation of powers differed in basic ways from the scheme embodied by the Constitution.  This isn’t a subtle point: Locke and the Founders used different categories to describe the powers that are distributed among institutions of government.  The Constitution distributes legislative, executive, and judicial powers.  Locke didn’t think in those terms.  He described the distribution of legislative, executive, and federative powers—“federative” powers being, basically, the powers of foreign affairs.  Locke and the Founders also disagreed about who should exercise some important specific powers within those general categories.  In Locke’s view, foreign affairs (that is, “federative”) powers should be lodged in the same place as executive power, even though the two kinds of power are conceptually distinct.  The Constitution, of course, divides what Locke would have recognized as the national government’s federative powers between the President (who is commander-in-chief of the military, and who receives ambassadors) and Congress (which declares war and regulates commerce with foreign nations).  None of this is to say that the Framers’ views of the separation of powers was wholly different from Locke’s.  But it is odd to claim that a thinker who didn’t even use the categories legislative, executive, and judicial to carve up a government’s power is also a thinker whose writings specify the view of the separation of powers on which the framers particularly insisted.  The org chart of the separation of powers articulated in Locke’s Second Treatise is not the org chart that the Constitution established. 

                The link between this problem and the Schechter Poultry problem should be clear enough.  I do not wish to charge Gorsuch with deliberately misrepresenting the relationship between Locke and the Framers.  I think it likely that Gorsuch found a passage in Locke that articulated a view congenial to the one he was pressing in Gundy and, perhaps from a general sense that Locke was an important thinker, helped himself in good faith to the inference that Locke’s view on the point was also the view animating the Framers at Philadelphia.  But as with Schechter, what results is a distortion.  And this time, it is a distortion that claims the authority of the Founders for a call to remake American law in a pretty significant way.

                Everyone makes mistakes.  And there is nothing new about Supreme Court Justices handling historical materials badly.  But one might hope that Gorsuch would strive to handle them with care.  He is, after all, prominently committed to the originalist view that the content of the law today is importantly determined by historical facts from long ago.  If so, he should insist on getting the history right. 

Many originalists, Gorsuch included, claim that one virtue of originalism is its capacity to generate legal rules that do not depend on the views of the decisionmakers.  (Not all originalists claim this, but many do, and Gorsuch is one of them.)  In practice, however, originalist interpretation tends to feature judges reading historical sources to mean what those judges would like the sources to mean.  Some originalists hold out hope that judges can learn to handle historical materials better than most judges have in the past, and more than a few people think that Gorsuch might become an exemplar of such a better way.  His choice to write an opinion with more than a hundred footnotes suggests an aspiration of that kind, or at least a consciousness of the virtues of being well-grounded in the sources.  But if Gorsuch is to vindicate originalism against the charge that in practice originalism tends to function as a vehicle for the preferences of the interpreter, he will need to be more careful—perhaps in particular, more inclined to think critically about whether the sources actually support his preferred positions—than he seems to have been in Gundy.

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