Monday, August 31, 2015

The Construction of Original Public Meaning


I've posted a draft of my latest article, The Construction of Original Public Meaning, on SSRN. It's a response to a really wonderful recent work of scholarship, Founding-Era Translations of the Constitution, by Christina Mulligan, Michael Douma, Hans Lind and Brian Quinn.

Their piece raises a host of interesting issues about constitutional interpretation.  In particular, it should cause everyone who does original meaning originalism to rethink the theoretical grounds of their approach to constitutional interpretation. It is only a slight exaggeration to say that Founding Era Translations of the Constitution is a piece of theoretical dynamite tossed into originalist scholarship.

Here is the abstract:

Christina Mulligan, Michael Douma, Hans Lind and Brian Quinn have recently shown that during the ratification of the Constitution in 1787-1788, German and Dutch translations of the Constitution were distributed to non-English speakers in the crucial states of Pennsylvania and New York. These translations differ from the English text in interesting and important ways. As a result, English speakers may have understood the proposed Constitution in one way, while non-English speakers may have understood it quite differently.

This essay uses this example to show why original public meaning is not a set of facts that lawyers simply discover and report. Rather, it is a theoretical construction that lawyers fashion in order to do the work of constitutional interpretation. There is no single way to construct original public meaning from the materials of the past. What we do construct depends in part on what we think constitutions are for and how they are supposed to work. It also depends on the practical needs of lawyers in search of a distinctively legal meaning that they can employ in legal argument.

Accounts of original public meaning bring some parts of the past forward and leave others behind; they view the past through the lens of theoretical and practical commitments. This would be true even if there had been only one version of the Constitution distributed in English in 1787-1788, because there are likely to be multiple understandings of the meaning of even a single text among the ratifying public. If our account of original public meaning is at all sensitive to the actual understandings of actual people living at the time of adoption, it will pick up these disagreements, and it will have to decide what to do with them. Perhaps the best way to deal with this problem is to choose a version of original public meaning that is the least sensitive to these differences in understanding, and that focuses as much as possible on areas of likely and overwhelming agreement. This approach won’t solve all problems, as Mulligan and her colleagues demonstrate. But it will create fewer difficulties than other approaches to original public meaning.

Accordingly, the second part of the essay defends a relatively “thin” theory of original public meaning—essentially confined to the original semantic meaning of the words, taking into account any generally recognized terms of art, and any background context necessary to understand the text. First, a thin theory of original meaning is most consistent with how written constitutions operate and what they are for; I call this a “framework” model of constitutions, as opposed to a “skyscraper” model. Second, because it focuses on areas of likely agreement, a thin theory is best equipped to deal with inevitable differences of understanding and belief among the ratifying public. Third, a thin theory features a division of labor between interpretation (which focuses on original public meaning) and constitutional construction, which deals with questions that cannot be decided by original meaning alone. Because constitutional construction treats history as a resource, not as a command, it is better able to deal with disagreements among the ratifying public, as well as the recurrent problem of translating the ratifying public’s concerns in their time to our concerns in our own. Although it excludes a significant amount of history from the narrower task of interpretation, the thin theory makes far more history available for the important task of constitutional construction.

Sunday, August 30, 2015

Could Donald Trump win the Republican presidential nomination

Sandy Levinson

The quick and dirty answer to the question is yes.  And the reason has to do with the formal rules adopted by the Republican Party with regard to the allocation of delegates to the 2016 Convention, to be held in Cleveland in June.  Four states are allowed to have their primaries in February--Iowa, South Carolina, New Hampshire, and Nevada--and then the scramble begins.  A whole bunch of states will have their primaries before March 15.  AND THE RULES REQUIRE THAT ALL OF THESE STATES OPERATE ON THE BASIS OF PROPORTIONAL REPRESENTATION (as is true for the first four states).  Then things get interesting, for it is up to the states themselves to decide whether delegates will be allocated by proportional representation or winner take all.  The current calendar for the Republican primaries indicates that the following states will be holding their primaries after March 15:  Arizona, Utah, Wisconsin, Connecticut, Delaware, Maryland, Pennsylvania, Rhode Island, Indiana, Nebraska, West Virginia, Oregon, California, Montana, New Jersey, New Mexico, South Dakota, and DC.  Apparently dates are not yet firmed up for New York, North Dakota, Utah, Colorado, Idaho, Kansas, Maine, Washington, and Wyoming.  Game theory suggests that there will be advantages to coming late precisely because it looks almost certain that there will be at least five or six candidates still duking it out by the Spring.  (I was on a program several weeks ago with the leader of the Travis County Republican Party, who predicted that there will be at least 5 or 6 candidates in the Texas primary on Super Tuesday, March 1.  It seems altogether likely that Trump will have more delegates on March 15 than any other single candidate, even if, as I am assuming, he has, say, "only" 30% of the total.  But if six or seven others are dividing up the remaining 70%, that obviously means that none of the others is likely to be all that close to Trump.

 More to the point, it seems highly unlikely that there will be any selfless falling on the sword by the others who decide that the way to stop Trump is to agree on the most plausible alternative, who, I must say, seems to be John Kasich.  But that requires, obviously, Jeb! to realize that his campaign is a disaster and that he is not going to be 45.  There are no conceivable circumstances under which Ted Cruz will join a top Trump movement in favor of a more electable candidate since Cruz really cares far more about 2020--and picking up the pieces of a totally destroyed GOP--than about helping Kasich or anyone else other than Ted Cruz who not only might win but presumptively would mean that Cruz has to wait until 2024 to run.  One can offer similar, though somewhat more generous analyses, of, say, Rand Paul. 

So it becomes crucial whether states chose to run proportional representation or winner-take-all votes.  The allocation of delegates can be found here.  The key to winner-take-all, obviously but crucially, is that all that Trump has to do is come in first, and it doesn't matter what his actual percentage is.  If he gets 30% of the vote in California, which traditionally does winner-take-all and has he gets 100% of the 172 delegates, unless the three "party leaders" are entitled to vote independently.  New York could give 95 delegates to their "favorite son" (assuming they reject Pataki!), while Pennsylvania could also contribute another 71 delegates. 

I am assuming that Trump could not possibly win a two-candidate race within the Republican Party, and perhaps he couldn't even prevail in a three-candidate showdown.  But, at least right now, it seems far more likely to be seven or eight (Jeb!, Kasich, Walker, Paul, Carson (!), Cruz,Rubio,  perhaps even Fiorina), and Trump seems to be a good bet to come in first unless one of the others unpredictably catches fire.  So under this scenario, he arrives in Cleveland with a hefty lead over the second-place candidate.  To be sure, Trump can easily be stopped, if but only if, a great spirit of self-sacrifice manifests itself. 

So the real question at the next debate should not be whether Trump will pledge to support the nominee, but, instead, whether each and every one of the others will promise, on national TV, that they will support Trump.  Enquiring minds want to know.

Once again, we should realize that FORMAL RULES MATTER.  There are no fancy theories of constitutional interpretation to be addressed.  There may be play in the joints inasmuch as states "may" (rather than "shall") adopt winner-take-all after March 15.  Should California, e.g., change its historic practice of winner-take-all, Trump will certainly be entitled to view this as an unfriendly measure and, more to the point, it will make far more likely what all of us political junkies are praying for, which is a "genuine" convention where it will take a number of ballots to decide who the candidate is.

I am not at all interested in sparking a debate about whether Donald Trump is qualified to be President.  He isn't (but, then, neither are most of the Republican candidates).  And, at this time, I'm not interested in debates about whether he would in fact be a viable candidate against Hillary Clinton.  (I doubt it, but who really knows?)  What I am interested in is whether anyone strongly objects to the empirics of this analysis. 

The Living Constitution: A Reconsideration

Stephen Griffin

After a series of posts evaluating the new originalism, I’m moving on to assess conventional notions of the living Constitution.  Let’s begin with two vignettes.  Consider the comprehensive exchange between Robert Bennett and Lawrence Solum in Constitutional Originalism: A Debate (2011).  Solum’s exposition of the new originalism has to be one of the most clear-headed and well-argued defenses of any theoretical position I’ve ever read.  It’s a minor masterpiece that I would recommend to anyone.

But note that in response, Bennett does not actually defend living constitutionalism.  That is, Bennett deliberately offers no normative defense of the argumentative tradition known as the “living” Constitution.  From his point of view, living constitutionalism was inevitable at some point given the existence of judicial review and broader developments in American society.  However general this sounds, Bennett is clear enough that the living Constitution (somewhat paradoxically) is a matter of history – something that already has happened in the course of Supreme Court adjudication that (presumably) can’t be altered.  I think this is an important clue about how living constitutionalists tend to think and why sometimes there is a lack of meaningful exchange between the two positions.  And one of my fundamental points in this and the next set of posts is that the idea of the living Constitution should itself be understood historically, through the lens of historicism.

My second vignette is the contrast between the impact of Heller and Obergefell on constitutional theory.  There is little doubt that Justice Scalia’s majority opinion in Heller, which relied heavily on the theory of original public meaning (OPM), gave a huge boost to its credibility.  In my estimation, this should not be surprising because academic constitutional theory has always been a reactive enterprise – paying more attention to the Court than what is going on in related academic disciplines like history and political science.  So consider: will Obergefell similarly serve to boost the idea of the living Constitution?  Well, why not?  Just as much as Heller served as an endorsement of OPM, Justice Kennedy’s majority opinion in Obergefell is a symphony, a festival of living constitutionalism.  That is, it is an opinion based on the idea that interpretations of the meaning of “liberty” can legitimately change with the times, without a subsequent constitutional amendment or inquiry into the OPM of the fourteenth amendment.  Kennedy also endorses the more general argument that the framers of the Constitution deliberately “entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”  Living constitutionalism is back!

Yet for all this fulsome endorsement, I doubt whether Obergefell will serve as a reference point for future debate in the same manner as Heller.  This is partly because living constitutionalism is not a “movement” for liberals in the same way originalism is part of a conservative movement.  But it is also because there is a sense in which Justice Kennedy’s arguments are unexceptionable, an accepted part of our mental furniture (well, some of us!).  Like Bennett’s nondefense of living constitutionalism, if you are on that side of Balkin’s coin, you don’t see anything to defend.  The living Constitution just is.
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Tuesday, August 25, 2015

Batson (A Footnote to Sandy Levinson)

Jason Mazzone

A small footnote to Sandy Levinson's insightful post on the separation of criminal law and procedure from constitutional theory. A few years ago I wrote a short paper on remedies for Batson violations. The impetus for the paper is that in Batson the Supreme Court did not identify the proper remedy for a Batson violation. The Batson Court addressed remedies in a single ambiguous footnote that identified two possible remedies: discharging the venire and selecting a new panel or reseating the improperly stricken juror. This footnote did not, however, specify whether these were the only permissible remedies, and it did not explain when one of the two is more appropriate than the other. (Subsequent Supreme Court cases also have not clarified what the appropriate remedy is for a Batson violation and the Court has never overturned a remedy imposed by a trial judge.) I was interested in exploring the kind of remedies trial judges have imposed and identifying any relevant differences between the practices of federal and state courts. I soon faced a problem: although Batson challenges are not uncommon, it was very hard to find instances where trial judges ever got to the remedy question because almost all challenges failed. In the course of the project I contacted hundreds of prosecutors and defense lawyers around the country to ask them to tell me of cases where they themselves had encountered a successful Batson challenge or to tell me about cases they knew about in which a trial judge had reached the remedy stage. The overwhelming response, even from trial lawyers with decades of experience, was that nobody knew of any successful Batson challenge. The lawyers I spoke with also had a fairly consistent explanation as to why Batson challenges failed: a judge who holds that Batson has been violated is ruling that (a) the attorney standing before the court discriminated on the basis of race and (b) when asked to explain his actions, the attorney (offering up a race-neutral reason for the strike) lied to the court. Few judges want to label lawyers who appear regularly before them bigoted liars. Here, then, bridging the divide between criminal and non-criminal cases in constitutional law is instructive. Batson represents an unusual context in which the specific state actor alleged to have violated equal protection is right there before the judge (and will be again tomorrow and next year). This isn't usually so in other kinds of equal protection cases: the lawyer is there only in a representative capacity and if an equal protection violation is found to have occurred it isn't the lawyer who is smeared. The failure of Batson (if failure there is) might well lie in the Court's own failure to recognize the impediments to applying equal protection when the alleged bad state actor is also the attorney arguing the case.          

Friday, August 21, 2015

Announcing Broken Trust: Why I Wrote a Book on Dysfunctional Government and Constitutional Reform

Stephen Griffin

I can’t count the number of book reviews I’ve read of works advocating constitutional and political reform which conclude along these lines: “the author’s suggested remedies are interesting, but unlikely to be enacted.”  Well, that’s a downer!  In a way, one of my objectives in writing Broken Trust was to deliberately get under the skin of people who write such reviews.  I wanted to approach the issue of fundamental constitutional reform from these angles: how would you motivate people toward reform in a country with an old and revered Constitution?  How could we make the possibility of reform more persuasive and imaginable?  What sort of reforms should we be interested in, especially if we think the political system is clotted and unlikely to change?  And, as implied by the title, I put the decline of trust in government at the center of these discussions.

I suggest that in most books of this kind, motivation is supposed to flow from pointing out that our government is dysfunctional, without necessarily considering the reality that some people are always opposed to proposed policy changes.  For these people, dysfunction works.  “Dysfunction” is often simply another way of pointing out that our system of government has many veto points, perhaps more than most countries.  So what sort of justification might appeal to everyone?  Perhaps justifications resting on abstract values but, then again, people do disagree about how to implement such values, even if they agree on them in their abstract form.  In Broken Trust, I therefore develop an alternative.  This is an argument that links “policy disasters” – policy outcomes that are in no one’s interest – to the Constitution and our “constitutional order,” the way the Constitution is implemented in a practical sense in a particular historical period.  I discuss how four policy disasters are linked to the Constitution: (1) the terrorist attacks of 9/11; (2) the flooding of New Orleans after Hurricane Katrina ten years ago; (3) the 2008 financial crisis; and (4) the growth of inequality of income and wealth in America.  If you want to avoid such disasters in the future, I argue, we need to increase trust in government through fundamental constitutional reform.

How to do this?  Again, a tall order!  I make this scenario more plausible by consulting history.  I explore the reasons political scientists have given for the decline in trust and show how, in our western states, a decline in trust in the progressive period in the early twentieth century indeed led to fundamental reform, the adoption of direct democracy.  As far as I can tell, direct democracy has never been very popular with constitutional scholars and although I acknowledge its shortcomings, I build a case that it has been successful to an important degree in responding to the felt need for popular influence in government.  The distrust Americans have, particularly toward their own legislatures, is a real phenomenon that goes back decades, and has to be acknowledged more openly and dealt with more successfully if we are to address the problem of dysfunctional government.

So fundamental constitutional reform is more feasible than many suppose because it has already happened on the state level.  And it continues to happen, especially now that the Supreme Court has sanctioned redistricting reform by commission (in Arizona State Legislature v. Arizona Independent Redistricting Commission).  But the reforms I think we should concentrate on are those that operate like direct democracy.  In themselves, they do not necessarily lead in any particular policy direction.  But they operate as gridlock-busters, thus creating an opening for reform.  California and other western states like Arizona have had that potential and opportunity for decades.  They just started exercising that option fairly recently and no, I don’t believe you can show direct democracy has been uniquely harmful to their policies or politics.

There’s one more point I make in the book that I would like you to think about, especially if you have your doubts about the desirability and possibility of fundamental reform.  How about that President Trump?  Or President Lessig?  Or the success Bernie Sanders has enjoyed?  Do you feel the genuine populist anger at the current state of our politics?  Part of that anger derives from the lack of practical policy accomplishment, to be sure.  But another part, I am convinced, derives from the “radical middle” – people who don’t hold extreme policy positions but are understandably frustrated about why nothing is happening and do favor some exploration of constitutional reform.  And that's why the argument of this book will only seem more plausible as time goes on.  Or so I hope!

More on the separation of criminal law (and procedure) from "constitutional theory"

Sandy Levinson

I want to elaborate some on Mark Graber's extraordinarily incisive and important post on why "constitutional theorists" are obsessed by, say, Obergefell and have almost literally nothing to say about Ferguson.  With regard to the self-conscious group of "constitutional theorists" in the legal academy, I think it's fair to say that extremely few are in fact interested in issues raised by the criminal justice system, save, of course, for such issues as the validity of criminalizing "hate speech" or abortion, etc. or, on occasion, capital punishment.  TWith regard to "constitutional criminal proceure," I think it's accurate to suggest that only Akhil Reed Amar, among "major constitutional theorists," has written extensively about the subject; his views are typically interesting and idiosyncratic.  Frankly, I have no idea to what extent they have been influential among the "criminal procedure" community.

My impression is that relatively few people who teach "constitutional law" also teach "criminal procedure" (just as relatively few, for that matter, teach copyright as well as First Amendment--largely devoid of copyright--or property law--and, therefore, zoning and eminent domain).  Perhaps the two courses (of "constitutional law" and "constitutional criminal procedure) were once joined together in the days before the explosion of the domain of "constitutional law"--and, for that matter, "constitutional criminal procedure" after "incorporation"--after World War II and, particularly, the heyday of the Warren Court.  It now takes so much time to teach the now-standard subject matters of introductory constitutional law courses that "we" happily cede coverage of the Fourth and Fifth Amendments to our colleagues who are interested in them.  They are, obviously, very able people, but relatively few get caught up in the great "methods of interpretation wars" that constitute too much of the subject matter of "constitutional theory."

Constitutional law casebooks--including the one that I co-edit with Jack, Akhil, and Reva Siegel-- give very scant attention to criminal procedure matters.  Substantive criminal law gets more attention insofar as we a significant number of pages on  abortion and certain sexual practices.  But, of course, we don't ever ask about the constitutional implications of criminalizing, say, shoplifting, drinking in public (as distinguished from carrying guns in public), or failing to give the proper signal when one is preparing to turn.   My naive hope, incidentally, is that the justices who were so concerned about "coercing" the defenseless states in the second part of Sibelius will pay more attention to the coercion that underlies the American system of plea bargaining, which begins with the power of the prosecutor to overcharge (in the specific sense that the DA does not have a good faith belief that protecting the public "requires" charging the defendant with X and putting himaway from Y years, but, instead, uses the threat of such a prosecution, and subsequent sentence, as a way of forcing vulnerable defendants, who can't make bail, to plead out to lesser offenses that some of them may in fact be truly innocent of having committed).  

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Of Ferguson and Constitutional Theory

Mark Graber

As vividly demonstrated by recent posts on Balkinization, one set of scholars think about Ferguson, Missouri and related problems and a completely different set of scholars think about constitutional theory.  Contemporary constitutional theory is about whether same-sex couples have a right to marry, not about the practice of policing in communities such as Ferguson, Missouri.  How constitutional theory lost touch with central problems of American governance is worthy of some thought.

The contemporary constitutionalism canon in the United States has three prongs.  The first are those constitutional decisions (Brown), texts (the Declaration of Independence), events (the decision to fight the Civil War) and persons (Abraham Lincoln) everyone agrees represent American constitutionalism at its finest.  The second prong, sometimes called the anti-canon, are those constitutional decisions (Dred Scott), texts (the Confederate Constitution), events (the internment of the Japanese) and persons (James Buchanan) everyone agrees represent American constitutionalism at its worse.  The third prong consists of those constitutional decisions (Roe), texts (the Contract with America), events (the recent exercises of presidential power) and persons Barack Obama) that must be justified or condemned in light of the canon and anti-canon.  A good deal of constitutional theory consists of arguments that your particular cause (same-sex marriage, the unitary president) is supported by the good canon, while rival positions are analogous to the bad anti-canon.  What is interesting for present purposes is that constitutional canons and anti-canons tend to get trotted out only during some debates.  Brown, Lochner and related canons make frequent appearances when same-sex marriage is on the table.  Debates over standing or the dormant commerce clause tend to be over the best interpretation of precedents known only to persons who spend a good deal of time studying standing or the dormant commerce clause.  Ferguson, in this respect, seems more analogous to standing than same-sex marriage.  Constitutional theorists no doubt admit the issues of policing are serious, but they are peripheral to the broader theoretical task of elaborating the central regime principles of the American constitutional order.

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Thursday, August 20, 2015

Pro-Executive Power Scholarship as a Road Test of Original Public Meaning Theory

Stephen Griffin

I want to thank Mark Graber for his generous comments about my forthcoming book and note that after this post, I’ll take a brief break to do a bit of promotion for Broken Trust: Dysfunctional Government and Constitutional Reform.  I’ll be speaking about the book at a related Sept. 4 panel on constitutional amendment and constitutional change (with John Vile, Sandy Levinson, Richard Hasen, and Melissa Schwartzberg) at APSA in San Francisco.  After I return to the topic of the new originalism and living constitutionalism, I will turn to the latter in order to pose some challenges for the most influential forms of this perspective.

But to continue for now on the new originalism.
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Seven Jews—Twenty-One Opinions!!: A Response To My Colleagues

Guest Blogger

Roberta Kwall

For the Symposium on Roberta Kwall, The Myth of the Cultural Jew

            There is an old joke that many readers of Balkinization probably have heard: “Two Jews—three opinions.”  This joke provided the inspiration for the title of my response and underscores my recognition of the depth and richness of the seven essays appearing in this symposium.  In crafting this response, I am mindful that brevity is important and so there are many areas that I will not be able to address fully or even partially. One area that was the subject of significant discussion that I will not address in detail is the title of the book, to which I gave significant thought during the eight plus years I worked on this project.  Although I was fascinated by the numerous comments on the title, in the end I think I made the right choice.  And perhaps the participants will prefer the title of this response!

            To begin, I was most gratified that none of the participants seemed to have had issues with my presentation of the history of Jewish law or even my halakhic (Jewish law) analyses. I do not take this lightly because a primary goal of this book was to enable readers from a wide variety of backgrounds, religions, and perspectives to understand the origins and development of Jewish law.  I can attest to the reality that even Jews from somewhat traditional backgrounds often do not understand exactly what Jewish law is—specifically, a largely humanly developed system of rules, customs, traditions that governs virtually every aspect of human behavior.  During the six years I co-directed DePaul’s Center for Jewish Law and Judaic Studies, the question “what exactly is Jewish law?” probably was the most common one I received (from both Jews and non-Jews).

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Wednesday, August 19, 2015

Mixed Audiences and Responses: Thoughts on Roberta Kwall’s The Myth of the Cultural Jew

Sandy Levinson

For the Symposium on Roberta Kwall, The Myth of the Cultural Jew

Roberta Kwall’s The Myth of the Cultural Jew:  Culture and Law in the Jewish Tradition deserves a wide readership.  But the lessons taught by the book will differ quite substantially depending on which of two audiences pick up the book.  One might be readers simply interested in comparative law, who correctly realize that “Jewish law” is at least as interesting a topic of potential study as that of any other country or institution.  In all cases, whether one is studying the United States, France, South Africa,  canon law within the Roman Catholic Church, sharia within Islam or halacha within Judaism, most of us today would acknowledge connections between the “internal” materials of the legal system—texts, legal decisions, etc.—and the “external” culture within which the legal system operates.  Who, after all, in 2015 does not agree with Oliver Wendell Holmes that one must understand both “logic” and “experience” when analyzing any given legal order—or that “experience” will ultimately dominate “logic” with regard to explaining the survival of any legal system over significant spans of time?  And just as one cannot understand a legal order without paying attention to the surrounding culture,  concomitantly one may well be unable to understand the cultural surround without paying attention to the extent to which aspects of “the law” help to shape it. 
Kwall’s book, accessible to those unfamiliar with even the basics of the halachic system, demonstrates that one cannot possibly understand Jewish law without paying attention to broader cultural contexts. It is important to note that these contexts very much include interaction with non-Jews, including, most importantly, Moslems and Christians.  But, frankly, I doubt that Kwall’s primary audience, either in terms of her own intentions or the actual likelihood of who will be buying, reading, and discussing the book, will be non-Jewish scholars seeking to burnish their comparativist credentials.  For her book is also very much directed to her fellow Jews about the centrality of Halacha to any coherent conception of Judaism—and beyond that, the very prospects for its survival in the future, especially in the United States (the subject of her last chapter).  It is not simply the case that she entreats any and all Jewish readers to pay more attention to the halachic underpinnings of their professed identity—even if, or perhaps especially if, they define themselves as “secular Jews,” a term, I believe, that has no analogue with regard, say, to self-identified Catholics or Mormons.  And she clearly seems to believe that to be a Jew requires at some level that one believe that “God commanded the Jews to preserve their particularity and gave them a path to guide them in this endeavor,” i.e., the halacha (p. 283).

  Although she notes, especially in her final chapters on Israel and the United States, respectively, that a significant number of Jews in both countries define themselves as “non-religious” and, indeed, “secular” in consciousness, she clearly bewails this.  It is not too much to say that she regards such data, and the social realities that they reflect, as indicating the baleful triumph of culture over what is indeed distinctive in Judaism.  As the late David Hartman (whom she cites) argued, this involves the acceptance of a covenantal relationship with God, even if we are condemned in effect, as Hartman himself was, to spending most of our time wrestling with what this can actually mean given the elusiveness of the Divine Presence. 
So I am a member of what I’m suggesting is her primary target audience, though it’s also true that I’m interested in comparative law as well.  I certainly publicly identify myself as Jewish, and some of my scholarly work has been very much informed by what I learned about Jewish law and hermeneutics from David Hartman and his marvelous associates at the Shalom Hartman Institute in Jerusalem.   However, as I elaborated in a recent essay that I prepared for a symposium organized by Prof. Kwall at DePaul Law School last year on the relationship of one’s Jewish identity to one’s work as a student of the American Constitution, my invaluable time at the Institute did not in one whit make me any more of a “religious” Jew in terms of an internalized commitment to the precepts of the Jewish legal system.  Jewish law certainly interests me, but, at the end of day, I feel no more bound by it than by any other foreign legal system.  Indeed, from one perspective it may bind me less, inasmuch as I do feel bound by, say, the Italian legal system when I visit Italy or, for that matter, the Israeli legal system when I visit that country, as I frequently do.  But that is very different from feeling any bonds to halachic Judaism (although, for reasons of etiquette, I will obey some of its precepts when, for example, I am visiting Orthodox friends).

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Jewish Law as Invitation

Guest Blogger

Shari Motro

For the Symposium on Roberta Kwall, The Myth of the Cultural Jew

For Roberta Rosenthal Kwall, to be a Jew is to be a person who lives life in relationship with a particular body of law, with halakhah. The “cultural Jew”—the post Enlightenment notion that it is possible to disentangle Yiddishkeit from Torah—is a myth.

As a child of one of the bastions of this myth, of stridently secular north Tel Aviv, I have been asking מי הוא יהודי?, Who is a Jew? for a long time, and my initial response to Roberta’s thesis was reactive.
My high school history teacher would have me believe that I was a Jew because of anti-Semitism. Wherever you go, he intoned, eventually you will learn that you do not belong. That’s why we need a state of our own. Having tasted the fruits of American multiculturalism during my family’s stints in the U.S., this struck me as a sad way to construct an identity. If this was Jewishness, I wanted no part in it. So at 18, I left Israel determined to start fresh—not as a Jew, not as an Israeli, but as a human being. What I discovered—at Yale, the University of Jordan, Stanford, NYU, Davis Polk, and the University of Richmond—was that doing this was impossible. It was impossible not because of my relationship with Jewish law, but because of my inescapable bond with Jewish culture.
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Tuesday, August 18, 2015

Cultural Judaism as an American, Jewish (and Israeli) Identity

Mark Graber

For the Symposium on Roberta Kwall, The Myth of the Cultural Jew

Many Americans consider themselves cultural Italians, cultural Jamaicans, cultural Koreans or the like.  They celebrate ethnic holidays, eat ethnic foods, dance ethnic dances, socialize with other members of their ethnic group and cherish the values of the mother country.  Cultural Italians, cultural Jamaicans and cultural Koreans feel no obligation to obey Italian, Jamaican or Korean law.  They are Americans bound by American law, even as they may consciously and unconsciously interpret American law in light of their original or ancestral legal culture.  Their cultural Italian, cultural Jamaican and cultural Korean identities are predominately American identities.  Italians, Jamaicans and Koreans recognize that their former countrymen are citizens of the United States, even as they buttress those cultural identities when urging their cultural brethren to support Italian, Jamaican and Korean causes and offering paths back to Italian, Jamaican or Korean citizenship not available to persons with different ancestry. 

The obvious non-mythological existence of cultural Italians, cultural Jamaicans and cultural Koreans in the United States highlights how Professor Roberta Rosenthal Kwall’s wonderful analysis of Jewish legal culture is beside the point when thinking about the phenomenon of the cultural Jew in the United States.  American cultural Jews are not confused about the inextricable connections between law and culture in Jewish (or any) legal culture.  Professor Kwall has confused predominantly Jewish identities and predominantly American identities, and she may be confusing a lack of commitment to Jewish religious observance with a lack of commitment to Jewish law.  The origins of American cultural Judaism and similar identities primarily lie in the legal and cultural struggles responsible for the development and acceptance of cultural pluralism in the United States and only secondarily in the evolution of Jewish legal culture. 

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The Reality of Richly Textured Judaism: A Review of The Myth of the Cultural Jew, by Roberta Rosenthal Kwall

Guest Blogger

Sherry F. Colb

For the Symposium on Roberta Kwall, The Myth of the Cultural Jew

In The Myth of the Cultural Jew, Roberta Kwall, the Raymond P. Niro Professor of Law at DePaul University, has accomplished something quite extraordinary.  Applying the lessons of cultural analysis to the question of what it means to be a Jew, Kwall demonstrates unequivocally and in a large number of contexts, that Jewish law—“Halakhah”—whether observed by the most devout “Haredim” (named for the Hebrew word for “trembling”) or the nominally Reform Jews who rarely observe commandments or attend synagogue services—is necessarily and profoundly shaped by the particular human beings who follow that law and who call themselves “Jews.”  The content of Jewish law, then, takes in the proclamations of elites as well as the behavior of the masses of Jewish individuals who negotiate their lives embedded in a culture of Jews as well as the non-Jews who surround them.  Because people dynamically construct Jewish law, the substance of Judaism and, accordingly, the meaning of “Jewishness” have differed over time and space.  To claim that there is one and only one way to be a law-abiding Jew, in the light of the arguments that Kwall marshalls in her book, is to expose oneself as ignorant and in need of the deep enrichment and fascinating story told in The Myth of the Cultural Jew.

When a book has been so expertly crafted, it is difficult to know what to say in response, other than to express gratitude to the author.  But while I do express that, I wish to dedicate some space in this review, first, to exploring how Kwall’s claims ring true to my own experience of living as a Jewish person who is not very observant, second, to drawing an analogy (or really, building on analogy that Kwall herself discusses) to the area of constitutional criminal procedure, and third, to quibbling a bit with what I regard as a perhaps secondary claim about the existence of purely cultural Jews.

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Monday, August 17, 2015

Stephen Griffin's New Book!

Mark Graber

Congratulations to Stephen Griffin, who has just published Broken Trust: Dysfunctional Government and Constitutional Reform.  I hope to say more in a future post about this short and engaging book that deepens existing critiques of the institutional breakdown in American politics and suggests a possible source of constitutional improvement.  In the meantime, I will simply note that this was be a great challenge for students taking constitutional law just starting the new school year.

The Relevance of Intellectual History to Constitutional Law and Constitutional Change

Stephen Griffin

I’ll punt for now on addressing the points Jack just made – in particular, I am saving reflection on the interpretation/construction distinction for the end of these posts.

With respect to what historians can contribute to debates over the new originalism and living constitutionalism, one has the sense that in recent work by legal scholars, barriers are being put up to productive interdisciplinary exchange.  Pretty clearly some legal scholars, including many new originalists, are trying to reassert and refurbish the autonomy of legal discourse from intrusions by other disciplines, especially history and political science.  This is a worrisome trend, for reasons I identify below.  It’s certainly one of the more sensitive subjects I will discuss in these posts and I don’t mean to get on the wrong side of anyone in what follows.

The immediate relevance of this topic to my prior posts is my assertion that without the context provided by meaning as purpose or meaning as “intent,” producing legal interpretations, especially in specific cases, becomes deracinated, disconnected from reality.  There was a recent relevant exchange on the value of intellectual history between Cornell and Solum, which I thought could have been more productive, beginning with Cornell’s article in the essential-reading FordhamLaw Review symposium I referred to earlier.  So I will start with some ground clearing.

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Myth and Mystification in Religious and Secular Judaism


For the Symposium on Roberta Kwall, The Myth of the Cultural Jew

The central thesis of Roberta Kwall's book, The Myth of the Cultural Jew, which doubts whether it is possible to be a cultural Jew, reminds me of the old joke about whether one believes in infant baptism. The punchline is: "I not only believe in it, I've seen it done."

Kwall has also seen it done too. She knows plenty of self-described "cultural Jews," or "secular Jews," who are not observant but identify strongly as Jewish. Nevertheless, she wants to argue that their notion of Jewish culture derives ultimately from features of halakhah (Jewish law) and mesorah (Jewish tradition).

She makes this case in the final chapter of the book. But for the first 200 pages, she has written a very different book with a very different message. The title of this 200 page book might be "The Myth of the (Purely) Legal Conception of Jewish Law.” And what a fascinating book it is! Guiding us through centuries of Jewish legal development, she shows how generation after generation of Jewish sages, scholars, and commentators have been affected by the cultures in which they lived, incorporating ideas and values from non-Jewish cultures. Halakhah has never been a purely Jewish production; it has always incorporated and transformed features of the Gentile cultures in which Jews lived, thrived, or were oppressed. Turning to modern times, she shows how debates over homosexuality, the role of women, and Sabbath observance have been influenced by modern cultural values.

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Jewish Identity Without Law or G-d

Guest Blogger

Alan Brownstein

For the Symposium on Roberta Kwall, The Myth of the Cultural Jew

Professor Kwall pursues several goals in her enlightening, informative, provocative and frustrating book. One objective is to demonstrate that there is a human element to Jewish law. Both internal Jewish culture and the foreign cultures in which Jews were embedded for much of our history significantly influenced the changing substance of Jewish law. This is Kwall’s strongest thesis and it is expertly developed. A second goal is to demonstrate the utility of cultural analysis in understanding Jewish law and culture.  I leave that discussion to others.

                The third goal addresses the question of whether Jewish particularity can survive if Jews define themselves solely in cultural terms. If “cultural” Jews reject both the Jewish religion and Jewish law, is there anything left that defines them distinctively as Jews that will persevere and continue over time? Kwall’s answer to this question is “No” and she fears what such an adaptation of Jewish identity would mean for the future of the Jewish people, particularly in the United States. Notwithstanding the title, this is the least developed discussion in her book.

I share Professor Kwall’s concerns about the longevity of Jewish tradition if it is anchored to nothing more than a sense of cultural identity. I am a practicing Reform Jew. To me, being Jewish involves participation in Jewish worship, knowledge of Jewish history and tradition, affiliation with Jewish institutions, particularly a synagogue, and a poorly rationalized, ad hoc relationship with Jewish law. Cultural Jews would describe what it means to them to be Jewish very differently. I worry that the conception of Jewish culture on which they stand cannot justify bearing the costs of being perpetual Jewish strangers wherever they live.

It is precisely because of these shared sensibilities that I found Kwall’s book to be so frustrating. I wanted her book to discuss this third issue in much more depth than it does.

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Sunday, August 16, 2015

The Wrong Myth?

Guest Blogger

Hillel Y. Levin

For the Symposium on Roberta Kwall, The Myth of the Cultural Jew

Roberta Rosenthal Kwall’s new book, The Myth of the Cultural Jew, brings a cultural analysis framework to bear on Jewish law, tradition, community, and identity. It carefully examines the complicated dialogic relationship between halakhah (Jewish law) and mesorah (Jewish tradition) on the one hand, and cultural forces internal and external to the Jewish community on the other. Reading it, I felt as though it had been written especially for me.

Cultural legal analysis resonates closely with my own law-and-society commitments, and reflection on the complex issues facing contemporary religious Jewish communities—particularly those related to sexual orientation and gender egalitarianism—consumes much of my own brain-space. The Myth of the Cultural Jew brought structure, rigor, and clarity to my half-baked intuitions and musings about how different Jewish communities have responded to the challenges of modernity, in equal measure reinforcing and challenging my own instincts. I have quibbles here and there with Kwall’s analysis of certain halakhic issues, but that’s really all they are. This book was a unique and welcome opportunity to bring together my academic interests and personal preoccupations.

Still, I can’t help but question Kwall’s framing narrative, which I found to be an uneasy fit with the careful analytical approach that so resonated with me. The book begins and ends as a repudiation of the myth of the Cultural Jew: one who identifies with culturally Jewish practices without acknowledging their origins in halakhah and mesorah. The term “myth” here means a “a widely held misconception.” (OED.) Does such a myth exist? If it does, Kwall does a convincing job of dismantling it. But she makes no effort to substantiate its pervasiveness, and I have not encountered it in the wild. Certainly, there are self-identified Cultural Jews for whom the origins of their cultural practices are irrelevant. They may be uneducated about, unaware of, or uninterested in the deep connections between many common culturally Jewish practices and their roots in Jewish religious texts and practices. But even those who deny that halakhah and mesorah has shaped their identity as Cultural Jews could surely be convinced without much difficulty that there is at least an historical connection between the two. So what is the myth?

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A symposium on Roberta Kwall, The Myth of the Cultural Jew: An introduction

Sandy Levinson

Over the next week, we will be publishing a series of responses to a fascinating new book by Roberta Rosenthal Kwall, The Myth of the Cultural Jew:  Culture and Law in Jewish Tradition (Oxford University Press, 2015).  Most obviously, as indicated by the subtitle, the book will engage anyone interested in what is often called the “law and society” project, i.e. understanding the interrelationships between what might be termed, on the one hand, “internalist” understandings of the law that constitute, say, much of the text of opinions written by judges or, for that matter, many law review articles written by law professors, and, on the other hand, “externalist” accounts, often written by political scientists, historians, and sociologists, that emphasize the importance of factors outside the “four corners of the law.” Think only of Oliver Wendell Holmes’s famous emphasis on “experience” over “logic” in explaining “the path of the law.” 
However, the subtitle is preceded by a quite polemical title, and Kwall’s book is certainly of interest in addition because of her strongly argued  views  about the potential costs (or even intellectual coherence)  of a notion of Judaism that pays inadequate attention to the legal underpinnings found, for traditional Jews, in the Halacha.  

In some ways, the challenge posed by Prof. Kwall can be analogized to that of Professor Paul Carrington about thirty years ago, when he suggested that adherents of Critical Legal Studies, whatever the obvious brilliance of many of the people attached to that movement, did not sufficiently “believe” in the law to warrant their (or, in my case, “our”) purporting to “teach law” to students in our major law schools.  They should have sought homes in departments of political science, history, or sociology (or even economics).  In my own book Constitutional Faith, I suggested that what Carrington was defending was the idea of the law school as a “seminary,” whose teachers are adherents of a given faith, rather than a “department of religion,” where no such adherence is required—and in many contexts might even be deleterious to the scholarly enterprise.  Although those argument may appear as if conducted on a far off planet long ago, they nonetheless addressed a recurrent question of precisely what one must/ought believe in order to claim a particular identity or to take on certain roles.   
Any discussion of law inevitably involves the question of its basis.  All positivists, for example, are united by a notion that law can ultimately be viewed as the command of a sovereign.  Candidates for such sovereignty have included “the people,” Parliament, a monarch, or, of course, God.  Halacha might be viewed as a common-law system instantiating the understandings of an ethnos, but, quite obviously, that is not the way it is usually presented, and a question underlying several of the responses, especially Alan Brownstein’s, is whether it makes sense to think of one’s being “obligated” to halachic norms—or, for that matter, if one is a Moslem, to Koranic norms—without believing that they have some connection with a divine presence (an ontological notion) who has means of informing us as to what his/her/its/their wishes are (an epistemological one).  

 It is surely no surprise that many of the people affiliated with Balkinization, in one way or another, are interested in the questions raised by both the title and the subtitle.   I anticipate that the essays responding to her book, by Jack Balkin, Alan Brownstein,Sherry Colb,  Mark Graber, Hillel Levin, Shari Motro, and myself, which will be posted throughout the coming days,will be both interesting and provocative.

Friday, August 14, 2015

A Note on Interpretation and Construction in the New Originalism


Steve Griffin has begun a very interesting set of posts on constitutional theory and interpretation, using the New Originalism as a foil. At this point in the process, I wanted to offer my own thoughts on an important issue that Steve raises about what the New Originalism is committed to.  Knowing Steve's work, I expect that he will concur with some parts of what I say and differ with other parts.

New Originalists, as I understand it, distinguish between interpretation-- ascertaining original public meaning, and construction-- implementing the original public meaning either in judicial decisions, inter-branch conventions, or constructions by the political branches.

The distinction between interpretation and construction is, roughly speaking, that interpretation seeks to identify the basic framework that cannot change in the Constitution absent an Article V amendment, while construction is the work of building out the Constitution over time. Constructions can and do change over time without Article V amendment. The history of American constitutional law is the history of changing constructions built on top of the basic framework. The historical development of constitutional construction is a significant part of the American constitutional tradition.

I have argued that the original expected application of the adopters of the Constitution and its subsequent amendments is not binding on later generations.  The original expected application consists of how the adopting generation would have understood and applied the provisions of the Constitution, in addition to the way that they would have articulated and applied the relevant principles and purposes behind the Constitution. Thus, the original expected application is not simply a set of concrete results; it also includes the ways that the adopters would have articulated and applied the purposes and principles they believed were behind the text of the Constitution.

As a result, I have a "thin" theory of original public meaning. The original public meaning consists of the semantic meanings of text, generally accepted terms of art, and any inferences from background context necessary to understand the text.  (By contrast, a "thick" theory of original public meaning  might count as part of original public meaning the way that the public (or well-trained lawyers) understood and applied the Constitution's provisions. The thicker one's conception of original public meaning, the more original expected applications tend to control the implementation of the Constitution in the present. In the limiting case, best represented by the original methods originalism of John McGinnis and Michael Rappaport, there is little or no room for construction at all; everything can and should be done through fidelity to original public meaning.)

People often confuse two very different positions about the role of original expected applications in the New Originalism.

The first position says that because these materials are not binding on future generations, interpreters may and should ignore them. These views have little or no bearing on the best construction of the Constitution today. This gives later generations complete freedom to construct the Constitution in any way they would like.

The second position is that although these materials are not binding on future generations, they are an important resource for constitutional construction. These materials are the beginning of the constitutional tradition, and therefore people today should invoke and employ them as aspects of that tradition.

I do not accept the first position, and I do not believe that most people who call themselves New Originalists do either.

I do accept the second position.
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Collected Posts: Deconstructing Ferguson One Year Later

Guest Blogger

Tracey L. Meares, Yale Law School

Here are the collected posts from our symposium,  Deconstructing Ferguson One Year Later

Tracey L. Meares, and Clarissa Rile Hayward, Introduction: Deconstructing Ferguson One Year Later

Benjamin Justice, Boggle our minds: Thoughts on the public’s education on the anniversary of Michael Brown’s death

Lisa L. Miller, Reforming police and prisons will not save us

Vesla M. Weaver, The Missing Lesson of Ferguson:  Conduct ≠ Contact

David Schleicher, Have the Politics of Ferguson Improved? How Can We Tell?

Issa Kohler-Hausmann, Detecting Discrimination In Policing (Or, The Dangers of Counterfactual Causal Thinking…)

Tracey L. Meares, A Third Reconstruction?

Tracey L. Meares is Walton Hale Hamilton Professor of Law at Yale Law School. You can reach her by e-mail at tracey.meares at

A Third Reconstruction?

Guest Blogger

Tracey Meares, Yale Law School

For the Symposium: Deconstructing Ferguson One Year Later
We have spent this week reflecting upon what “Ferguson” means in this moment.  As Clarissa Hayward and I noted at the outset of this symposium, we think this moment is about the nature of racial inequality and hierarchy in the contemporary United States and what steps we might take to address this.  Our blog contributors this week have offered different approaches to tackling this problem.  Ben Justice, for example, explains that we cannot make progress until we have a “shared sense of reality” – a sense that seems fundamentally missing when African Americans’ understanding of policing is completely at odds with the understanding that many whites have.  There are signs that there is a growing shared reality.  Just after Michael Brown’s death, numerous polls and reports recounted the vast racial divide in the perceptions of Black Americans and white Americans about the incident.  One year later, there is some movement toward convergence – a shared reality – but we still have a long way to go.  Today a majority of whites (53%) agree that the country “needs to continue making changes to give blacks equal rights with whites” compared to about 4 in 10 registering the same sentiment over the last several years. 

One way of understanding what must be done is to reflect upon what is necessary to achieve a shared reality.  Some commentators in this moment are quite pessimistic.  In his new book, Between the World and Me, Ta’Nehsi Coates, speaking to his son about the Dreamers (those who in James Baldwin’s words “think they are white”) says:

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Thursday, August 13, 2015

Can the New Originalism Account for the Constitution, the Law of the Constitution, and our Constitutional Tradition?

Stephen Griffin

In the very interesting Clough Center symposium referred to in my previous post, moderator Jim Fleming asked where we are in the debate between the various forms of originalism and living constitutionalism.  I’m certainly looking forward to reading Jim’s forthcoming book on the subject. This series of posts is my own take on the state of the debate and it should be kept in mind that I will be making criticisms of both points of view, although perhaps I will be less hard on living constitutionalism.

It should also be kept in mind that I am about to launch a somewhat slow-burning criticism of the new originalism, understood as the theory of original public meaning or semantic originalism, the import of which won’t be completely apparent until later posts.  This is partly because my critique of the new originalism is intertwined with views I hold about the relevance and value of approaching history from a historicist perspective – roughly, approaching history as historians do.  Those views can’t be spelled out adequately in one post, so this argument is sequenced.

One way the new originalism has clearly advanced the discussion over theories of constitutional interpretation is by distinguishing among the different senses of the word “meaning.”  The forms of meaning identified by new originalists that matter most for the purposes of my discussion are (1) linguistic or semantic meaning – the meaning in English of the terms in the Constitution at the time they were adopted and (2) meaning understood as purpose – the point or “intent” of the people adopting the provisions.  So far as I am able to tell, new originalists imply, without quite saying or justifying, that (1) is always superior to (2) for purposes of constitutional interpretation and adjudication.  But I’m not sure how that argument goes.  I will argue that our experience with original public meaning, particularly with respect to executive power scholarship, shows that without steady attention to meaning as purpose, interpretations go awry – in fact, they get deracinated, disconnected from the reality and context that the past should provide us.

I suggest we shouldn’t adopt a theory of interpretation (or construction) that leads us away from understanding and accounting for not only the plain text of the Constitution, but the law developed pursuant to it (developed by all authoritative constitutional actors, not just the Supreme Court) and our constitutional “tradition,” understood as the web of commentary, opinion and disputation that has surrounded the document from the beginning.  I don’t mean to suggest that theories of interpretation are automatically ruled out of bounds if they hold that past interpretations or doctrines are mistaken.  But we should be wary of theories that cannot account for or reproduce the key constitutional controversies that have occupied Americans for decades (really, centuries).  It seems to me that the new originalism, especially in its hyper focus on individual words and phrases of the text, is going down this road.

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Detecting Discrimination In Policing (Or, The Dangers of Counterfactual Causal Thinking…)

Guest Blogger

Issa Kohler-Hausmann

For the Symposium: Deconstructing Ferguson One Year Later

How do we know when policing is discriminatory? Statistical evidence is one way to show discrimination, especially in legal challenges to police practices when the smoking gun of invidious intent is hard to find. Plaintiffs seek to demonstrate that observed racial or ethnic disparities in policing outcomes (stops, misdemeanor arrest, police murders, etc.) are because of race and not something else. But what does it mean to show discrimination because of race?

Discrimination is, to borrow from Bernard Williams, a “thick ethical concept” that simultaneously describes and evaluates. Thick ethnical concepts are both “world-guided”—in the sense that facts about the world and how it is organized determine the applicability of the concept—and “action guiding”—in the sense that if one has properly applied the term to a situation it provides a moral reason to pursue a course of action (or desist from a course of action).

These philosophical abstractions come crashing to the ground with bloody urgency around the question of discrimination in policing. When we set out to detect discrimination in a particular field of social activity, we ought to be attentive to the fact that methodological debates about how to identify the phenomenon are not only debates about what the phenomenon is but also necessarily debates about what is right—about the “good,” “fair,” or “proper” way of conducing business in that field.

We can explore these intertwined conceptual, legal and political questions by looking at how police discrimination is alleged and measured by in two arenas: social science studying police outcomes and legal challenges to police tactics. I am particularly interested in how those two arenas interact and mutually inform a particular concept of discrimination through the use of quantitative methods to prove discrimination in police cases. In both of these arenas—and especially when they interact in the form of expert statistical evidence—we see the emergence of a particular concept of discrimination that I call the counterfactual causal notion of race discrimination. The counterfactual causal notion of race discrimination conceptualizes race as a treatment that triggers an outcome. Briefly, the causal effect of treatment t on unit u is defined by comparing some measure of interests on u, Y(u), between a world in which u experienced the treatment (t=1) and the world in which it did not, (t=0): Yt=1(u) – Yt=0(u). For purpose of my discussion, assume the unit is a space (such as a police precinct) and the treatment is a continuous variable (the percent of the space’s population that are Black or Hispanic individuals). Discrimination, on this account, is detected when all other facts about the spatial unit are “controlled for” and there is still some persistent racial discrepancy in observed police outcomes.

Why is this important? It is important because the way courts consume quantitative evidence too easily glosses over what are essentially conceptual and normative questions and make them appear to be technical or methodological questions. What we are arguing about when we argue about whether or not statistical evidence provides proof of discrimination is precisely what we mean by the term discrimination. Similarly, what we are arguing about when we argue about what ought to be “controlled for” in a quantitative exercise to detect discrimination is what are the fair and authorized bases for making decisions and allocating resources.

I will illustrate these arguments with data from an ongoing project with Cong Peng about policing of misdemeanor crimes in New York City. I argue that interpreting the coefficient on race or ethnic composition from a regression model of police practices as an isolated “treatment” effect often entails abstracting from the very social forces that produce race as a salient social category in the first place (There is a long debate about whether race can be thought of as a “cause” in the counterfactual framework. See for example, Zuberi, Sen & Wasow, Holland, Zuberi & Bonilla-Silva). It can make race appear to be an essential, obvious trait that somehow mechanically produces outcomes by virtue of physical attributes as opposed to through entrenched social systems of stratification and signification.
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First Government opposition brief in nonprofit cases challenging the contraceptive coverage accommodation

Marty Lederman

On Wednesday, the Solicitor General filed this brief in opposition to the two petitions for certiorari from the decision of the U.S. Court of Appeals for the D.C. Circuit in Priests for Life.  He argues that Supreme Court review is not warranted because all six courts of appeals to have ruled thus far have "correctly rejected petitioners’ RFRA challenge to the accommodation, which exempts petitioners from any obligation to contract, arrange, pay, or refer for contraceptive coverage for employees or their beneficiaries."  He does, however, signal (pp.30-31) that if and when the Court decides to consider the question, it should grant the petition in No. 14-1505, Roman Catholic Archbishop of Washington v. Burwell, principally for the reasons I discussed in this post.

[UPDATE:  On August 25, petitioners filed their reply brief in No. 14-1505, Roman Catholic Archbishop of Washington v. Burwell.]

Compendium of posts on Hobby Lobby and related cases

Wednesday, August 12, 2015

Have the Politics of Ferguson Improved? How Can We Tell?

Guest Blogger

David Schleicher, Yale Law School

For the Symposium: Deconstructing Ferguson One Year Later

When the world’s attention focused on Ferguson following the Michael Brown shooting, it revealed a fundamentally broken polity hiding in plain sight.   The Department of Justice report showed clearly that racism was rampant in the police department.  Further, the city used an aggressive and punitive system of municipal code enforcement to generate more revenue than the city got from property taxes.

One thing that stood out from this horror show of civic failure was that the targets of the city’s policies were a majority of Ferguson’s population.  The African-Americans against whom the police showed animus are a super-majority of the city’s population.  And Ferguson issued more citations and summons for code violations per year than it has people, balancing its budget through what was in effect a bizarrely inefficient set of taxes levied against a majority of its population.

How does a super-majority of the population become the target of biased government policy from a democratically elected city government? And has anything changed about local politics in the last year such that Ferguson and cities like it will not resume their predation of the majority? 

Only one year after the shooting and standing far away from the on-the-ground political developments, it is hard to tell whether anything has fundamentally changed about Ferguson’s politics.  To be sure, the first elections after the Michael Brown shooting were different from prior elections: turnout increased somewhat and minority candidates won a few races, with African-Americans now holding 3 out of 6 seats on the City Council. 

But elections right after major news stories are often quite different from elections after the buzz has faded.  For lasting change, political institutions must develop that can provide ordinary voters with clear information about candidates to facilitate popular participation.  Some such institutions seem to have popped up in the wake of the Ferguson protests.  Whether local organizations can survive and succeed in making participation in municipal politics easier for ordinary voters will be key to whether there is long-term change in how and for whom local policy works, in Ferguson and beyond. 
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Tuesday, August 11, 2015

The New Originalism and Living Constitutionalism: A Reconsideration

Stephen Griffin

In this and the next few posts, I hope to set out my approach to the theory of constitutional change and its implications for current debates on the new originalism and the viability of the idea of the “living Constitution.”  I am moved to do so by several considerations (including that I am planning a book on the subject!).  The other main consideration is that I feel I should respond to scholars who have themselves responded to my prior work, especially my article “Rebooting Originalism.”  This article was was critical of the new originalism, but was published before all of its features became fully apparent (at least to me).  So part of this is by way of catching up with the new originalism and updating my critique.  Lately it seems my name has come up a bit more than usual, especially in a recent interesting exchange between Lawrence Solum and Saul Cornell on the value of intellectual history and in Solum’s article on constitutional construction in a highly useful symposium in the Fordham Law Review.  Solum has been wonderful about mentioning my work, particularly in a Clough Center symposium at Boston College just a few months ago.  So time to return the favor, catch up on Solum’s crucially important and leading work, and set out my own distinctive position in a systematic way.  In proceeding with reference to Solum’s work, by the way, I am not trying to slight or ignore other significant work on original public meaning, including Jack’s own seminal Living Originalism.  But I feel Solum is pushing me in particular to clarify my position.  So in what follows, I will be arranging my argument around his recent work.

Another reason is that I want to justify further some just-published, fairly harsh remarks about original public meaning theory in my contribution “The Executive Power” to the Oxford Handbook of the U.S. Constitution.  With respect to pro-executive power scholarship since the 1990s, heavily reliant on original public meaning theory, I wrote that it “involves a deliberately selective approach to the use of historical evidence.  It is not a historicist theory and so does not involve the appropriate consideration of historical context.  The highly questionable consequence of original public meaning methodology is to create an alternate version of eighteenth-century history seemingly designed to bypass the most insightful and learned scholarship on the Founding Period.” (citing in particular the work of Gordon Wood and Jack Rakove)  The distinction I draw here between interpretive works that are “historicist” as opposed to “originalist” (using original public meaning theory) is certainly not obvious.  I want to say more about this.  Relatedly, it has become more evident to me that many scholars don’t see the lay of the land the way I do, specifically with respect to the importance of theories of informal constitutional change to other issues in constitutional theory, including issues of interpretation.

A rough road map to these posts follows.
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Is Scott Walker Running for Dictator?

Sandy Levinson

Scott Walker has announced that he will be prepared to go to war against Iran on his first day of office, presumably after "tearing up" the Iran agreement.  There can be little doubt that the next president, even an uneducated lout like Gov. Walker, has the constitutional power to tear up the agreement.  As Marty Lederman has ably demonstrated, the Deal is neither a treaty nor even an executive agreement truly binding on the United States.  It is, I think it's fair to say (though Marty will correct me if I'm wrong)* a memorandum or understanding between the current President and Iran (and the other signatories) as to what they will do in the relatively near future should certain contingencies take place, i.e., life those sanctions the President has unilateral authority to lift in return for Iran's agreeing to comply with the deal.  And so forth.  So the question is whom we might be trusting to make such determinations in the future, insofar as the Iran Deal, whatever one thinks of it, highlights the power of the Executive Branch vis-a-vis Congress, certainly as a practical matter, perhaps as a constitutional matter.

But the threat to use military force on day one is something entirely different, unless one adopts the most extravagant theories of Hanoverian Monarch-like presidential power attached to John Yoo.  Given that there is no plausible fear that Iran would engage in a military attack on the US (or even any of its NATO allies) on January 20, 2017, it would be impossible for a new president to claim whatever authority presidents have to engage in "defensive" wars.  It would be an act of aggression against Iran based on a theory of preventive war.  Perhaps that would be a good idea (though I personally think it is near-lunatic).  But the point is that only a dictator would claim such an authority to go to war without congressional approval.  Now it's possible that if mad-dog Republicans not only win the presidency but retain control of Congress, then the new Congress that convenes early in January, 2017 will pass a new AUMF that will offer the incoming president a true blank check to go to war (at least against Iran) whenever he thinks the circumstances warrant.  I would hope that Democrats would filibuster any such proposal, though one never knows what Chuck Shumer, who might, God forbid, have become the Senate minority leader by that point, would do.  I'm sure that Sheldon Adelson would support such a bill.  But, in the absence of congressional authorization--and I hope that no serious person would argue that the existing AUMF would provide any such authorization--President Walker would be without power to order an attack on Iran.  Indeed, if we tear up the agreement, it is unclear to me how he could unilaterally order an attack even if Iran moved closer to having nuclear weapons.  But we've gotten so used to assertions of unilateral presidential power, from presidents of both parties, that perhaps we'd take that in stride.

*UPDATE:  Marty, a far more meticulous lawyer than I am, did indeed send me a valuable correction:

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