Balkinization  

Tuesday, February 19, 2008

Crisis in Constitutional Law?

Stephen Griffin

Mark Kende, Professor of Law at Drake and current chair of the Section on Constitutional Law has an inspired idea for the program at the next AALS meeting. The program notice is below. Scholars perhaps overuse the concept of a "crisis" (although it is eye-catching), but there is little doubt there are some strange doctrinal developments in U.S. conlaw. Mostly because of Justice Kennedy, I find I have a harder time explaining to students what the "standard" approach to equal protection and substantive due process jurisprudence is supposed to be. But perhaps it is fairer to say the entire Court seems less interested in the sort of hyper-articulated "tiers of scrutiny" which I absorbed in law school as among the most important doctrinal developments of the 1970s. That entire era in conlaw now seems played out. Again, "doctrinal chaos" seems a bit strong, there are always important inconsistencies in conlaw jurisprudence. But more attention should have been paid to Laurence Tribe's announcement, in the wake of the Schiavo mess in 2005, that he could not produce a new edition of his famous conlaw treatise.


2009 ANNUAL AALS MEETING: AALS SECTION ON CONSTITUTIONAL LAW CALL FOR PAPERS: IS AMERICAN CONSTITUTIONAL LAW IN CRISIS?


At the January, 2009 Annual Meeting of the AALS, the Section on Constitutional Law will host a panel asking whether American constitutional law doctrine is in crisis; and, if so, what the causes and cures are for that crisis. One paper from an untenured, non-adjunct, faculty of law member will be included. Its author will join a panel consisting of Professor Jack Balkin, Professor Steven Calabresi, Judge Alex Kozinski, and Professor Suzanna Sherry. The author must be teaching at an AALS member or AALS fee-paid law school.


To submit an entry, send an abstract of your paper (five pages or less, single-spaced) electronically to: amy.russell@drake.edu. She is the assistant to the Section Chair, Professor Mark Kende. Please include your name, institutional affiliation, and contact information on a cover sheet only. All entries will be subject to a blind review by various members of the Executive Committee of the Section on Constitutional Law. Submissions must be received by no later than May 1, 2009. Late submissions will not be accepted. The author of the abstract that is chosen will be expected to produce a 20 page (single-space) manuscript by the time of the AALS panel. If you have any questions, please e-mail Professor Kende (mark.kende@drake.edu).


From the panel description:
American constitutional doctrine appears to have problems. In the commerce clause area, Gonzales v. Raich is hard to reconcile with United States v. Morrison. Regarding substantive due process, the U.S. Supreme Court was cautious in Washington v. Glucksberg but bold in Lawrence v. Texas. Moreover, two similar partial birth abortion cases reached opposite results. On equal protection, the Court states that it has three levels of scrutiny but it actually uses several other variations. In addition the Court in Grutter v. Bollinger said it was using strict scrutiny but was actually deferential in upholding the law school's affirmative action plan. The Court's hate speech decision, R.A.V. v. City of St. Paul, announced that certain categories of previously unprotected expression could sometimes receive protection. Other examples abound. These results make it difficult for lower court judges, lawyers, and the public to know how the Court will decide certain questions. They can also generate charges of judicial legislating. For law professors, this situation makes teaching and doing scholarship more challenging.


This panel will address whether American constitutional law is in doctrinal chaos, or whether these are the acceptable consequences when difficult constitutional questions come before a divided Court interpreting an old constitution. The discussions over Laurence Tribe's decision not to continue writing his treatise illuminated the issue further. This panel of distinguished scholars and jurists will examine these questions and explore the causes of the current situation. It will also examine what role law professors should play in addressing these matters.


Comments:

Needless to say (but I'll say it anyway), I think there is a distinction to be made between "doctrinal chaos," which I agree is rife, and crises, real or potential, generated by the Constitution we have. As readers know, perhaps because I have been so tiresome in making the point, I consider it a crisis that we have no way of ridding ourselves, before January 20, 2009, of a dangerously incompetent president/commander-in-chief and a demented vice president. And I would count it as a crisis if John McCain limped into an electoral vote victory while losing the popular vote by a truly substantial margin (i.e., signiicantly more than the 500,000 that separated Bush and Gore). All of know the arguments, by now, so I'll stop.
 

Needless to say (but I'll say it anyway), I think there is a distinction to be made between "doctrinal chaos," which I agree is rife, and crises, real or potential, generated by the Constitution we have. As readers know, perhaps because I have been so tiresome in making the point, I consider it a crisis that we have no way of ridding ourselves, before January 20, 2009, of a dangerously incompetent president/commander-in-chief and a demented vice president. And I would count it as a crisis if John McCain limped into an electoral vote victory while losing the popular vote by a truly substantial margin (i.e., signiicantly more than the 500,000 that separated Bush and Gore). All of know the arguments, by now, so I'll stop.
 

"I find I have a harder time explaining to students what the "standard" approach to equal protection and substantive due process jurisprudence is supposed to be."

I know that this is absolutely a true statement, which I learned this past semester instructing my students. And, to be honest, it's not only in Constitutional law, but also in my area, Indian Law. Try to explain to students how the "who-where" taxation incidence analysis repudiated in Ramah School Board squares with Thomas's insistent reliance on it in the Potawatomi Nation case? Of course, confusion in this field is nothing new, but the past three years have been a particular mess.
 

First, Sandy, lol at the double post; an accident, no doubt, but funny as heck considering the "Needless to say" intro. Count me, as always, happy to hear your voice, even with the reverb set so high.

Second, can we perhaps benefit from observing that most of us here at Balkinization would be prone to say "crisis" less because it's harder to teach and more because what certainty we have seems to be in an ascendancy of Scalia/Thomas rhetoric painted "moderate" by the "good cops", Alito and Roberts? Conlaw is clearly adrift, and the upcoming presidential elections could settle it in favor of the fascists or preserve some measure of balance and contrapuntalism. There are some however, far far too many in my view, who see a Republican president in 2008 having the power to end what they see as a decades long crisis of liberalism, of human and civil rights orientation at the expense of their pet prejudices and profits. The power of the next president to either lock the court into a neo-con mold for a generation or preserve some feeble measure of opposition to the far right on our highest bench may be the strongest reason for all of us to turn out in support of whichever Democrat gets the nod at the convention.
 

The incoherence of recent doctrine is directly correlated with the frequent incoherence of O'Connor and Kennedy's tie breaking and split the baby opinions.

However, the post new Deal liberal con law doctrine is at a tipping point with the appointment of Alito to the Court creating a narrow, albeit not always reliable, conservative majority.

This Presidential election will be key to determine how this Court divide will resolve itself.

If Obama wins, he will replace the old liberals with young liberals and the aging process will move against the narrow conservative majority. In this case, the doctrinal confusion will probably continue so long as Kennedy has the swing vote.

However, if McCain wins and he follows through on his campaign promises to nominate conservative justices, we could see a substantial conservative majority and a doctrinal counter revolution.
 

BDP "However, if McCain wins and he follows through on his campaign promises to nominate conservative justices, we could see a substantial conservative majority and a doctrinal counter revolution."

Haven't we already seen that? Seriously, the Court's dormant commerce doctrine has, for the past 15 years, been an absolute train wreck with very few exceptions. e.g., the Rehnquist majority was so caught up in trying to steer clear of the moderating effects of Pike balancing that they time and again implicitly painted themselves into the discrimination-by-effects corner. The fly in the ointment, of course, is that they rarely actually followed through with either the appropriate tier of scrutiny or reached the appropriate result.

And, since when is jurisprudence supposed to be "counter-revolutionary?" You can have strict construction or you can have activism, but not both simultaneously. So much for the conservative myth of not wanting an "activist" court.
 

der schatten said...

And, since when is jurisprudence supposed to be "counter-revolutionary?" You can have strict construction or you can have activism, but not both simultaneously. So much for the conservative myth of not wanting an "activist" court.

A revolution is a fundamental change in the status quo. A counter revolution brings things back to the status quo.

Strict construction of the Constitution was the status quo. The liberal departures from the Constitution starting in the New Deal were the revolution. The counter revolution of which I speak brings us back to strict construction.

Going back to strict construction is hardly activism.
 

Bart: Going back to strict construction is hardly activism.

You might want to take a moment on that one, and refresh yourself, here, on the GOP approved use of "activism." As of 1996 it was a word Newt encouraged as a eulogistic to be applied to rulings of GOP approved judges. And if the Democrats hold the Congress (and or the White House) you can bet Scalia will embrace counter-majoritarianism with open arms and proudly wave his candidly activist flag high. True believers who have perhaps unwisely wed themselves to the rhetoric of the day may find themselves somewhat at a loss when the shift comes. (Come to think of it, where was that famous majoritarian concern of Scalia's in "Bush v. Gore"? Oddly absent, eh?)
 

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