an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Are liberals and conservatives being strategic in constitutional theory? Not necessarily.
Over at Law and Liberty, Mike Rappaport argues that my predictions about how liberal constitutional theory will evolve if there is a new liberal majority on the Supreme Court show that (1) liberal constitutional theories are merely strategic; (2) that liberals have not acted in good faith about constitutional theory; and (3) that I and other liberal theorists actively support this strategic, bad-faith approach.
What Jack appears to saying – admitting – is that the liberal constitutional theories have been strategic. The liberals are not arguing what they believe as a matter of first principle. They are engaged in strategic arguments in an effort to foreclose the conservatives from deciding cases in ways the liberals don’t like.
. . . .
Many people on the right believe that the liberals have been and continue to be strategic about such matters. But since it involves attributing a kind of bad faith to the other side, it is often not asserted. But in this case, the argument is made by the liberals.
This is a very serious charge. I think Mike is too eager to conclude that people who disagree with him on important questions are acting in bad faith -- and even admitting to acting in bad faith! A moment's reflection will show why his conclusion is mistaken.
I wrote my previous post about liberals, responding to Eric Posner's comments about how liberals and conservatives would be affected by a long term shift in the ideological composition of the Supreme Court. I was planning to follow up my discussion of the effects on liberal constitutional theory with a second post about how a shift in the Supreme Court would affect the development of conservative constitutional theory. Mike apparently seems to believe that the effects will only occur on one side. He is incorrect. I might as well summarize the basic points now.
A long-term liberal majority on the Supreme Court and the lower federal courts will have an effect on conservative constitutional theory that is roughly symmetrical to the effects that it will have on liberal constitutional theory. And this does not mean that conservatives, any more than liberals, have always been strategic, or that they will be acting in bad faith.
For the past twenty years, there has been a movement by conservative intellectuals away from judicial restraint and toward what is now called "judicial engagement." In a world dominated by liberal politics and liberal courts, this movement will face serious political headwinds. The older conservative position of judicial restraint will seem increasingly attractive to the next generation. I can already imagine that more than a few members of the older generation will tut-tut, "I told you so." Would this mean that conservatives have always acted strategically about constitutional theory and now have let the mask slip? No. It simply means that each generation views the Constitution in light of their own problems and preoccupations.
Let me expand on this point. In the recent past, many conservatives have become more attracted to theories of judicial engagement, or originalist theories that argue that judges should be more willing to strike down laws and practices that are contrary to conservative values as conservatives understand them. The reasons for this shift are obvious. Once conservatives gained control of the courts, it made less and less sense to argue that courts should not enforce constitutional values that are important to conservatives, and conservative theories of constitutional interpretation changed accordingly. Keith Whittington made this point in his article on the New Originalism in 2004. I do not recall Mike Rappaport rushing to inform us that Keith's research proved that conservatives were strategic about constitutional theory and had always acted in bad faith.
The movement toward what is now called judicial engagement was hardly uniform. While some conservative intellectuals, especially but not exclusively among the generations after Bork and Scalia, began to argue for judicial engagement, the earlier generation, whose views were formed in the context of originalist attacks on the Warren and early Burger courts, continued to preach the old time religion of judicial restraint.
The shift does not fall strictly on generational lines. Some younger scholars continue to argue for restraint, while some older ones (such as classical liberals like Richard Epstein) have long argued for what we would now call judicial engagement. Some people simply changed their minds. This split among conservative intellectuals is well known, and is typified by the Federalist Society Rosenkranz debate a few years back between J. Harvie Wilkinson and Randy Barnett. Randy has been in the forefront of the movement by conservatives toward judicial engagement, and he justifies it through invoking the notion of judicial constraint-- that judges have a duty to enforce the Constitution-- as opposed to judicial restraint or judicial deference, which presumes that legislative and executive action is constitutional.
I am sure that this lively debate among conservative intellectuals is quite well known to Mike, and my point is that it is the mirror image of the debate among liberals in the past twenty years. I am quite certain that he would not conclude from this gradual shift in conservative views over the years that conservative intellectuals have been acting in bad faith. He should offer liberals an equal degree of charity.
A long term shift in the composition of the federal courts to a liberal majority will very likely produce a predictable effect on conservative legal intellectuals, especially younger folks who are in the process of developing their considered judgments on the question. More, but not all, of this generation, I predict, will swing toward Wilkinson's position and fewer will move toward Barnett's position. As before, a few people will switch sides, or temper their positions, but the effect will mostly be felt generationally.
This is precisely what happened on the left many years ago. Older liberals like Larry Tribe, Ronald Dworkin and John Hart Ely vigorously defended the Warren Court; the generation of liberal scholars that came of age after Ronald Reagan's election, in the era of the Burger and Rehnquist Courts (which includes Larry Kramer and Cass Sunstein, among others), developed their views in a world dominated by conservative politics and mostly conservative courts. They constructed their theories in the context of that world. If there is a lasting liberal majority, it will shape the understandings of conservative intellectuals toward distrust of courts, and, conversely, we may expect that the next generation of liberal intellectuals will produce theories that mirror the judicial engagement of contemporary conservatives like Randy Barnett, albeit to defend liberal conceptions of constitutional values.
Mike seems shocked, shocked, that such a thing would go on in constitutional theory. But such changes are entirely commonplace in the history of ideas, much less in the history of constitutional thought, and does not necessarily reflect bad faith on anyone's part.
What about the many conservative intellectuals who have already taken a firm position on judicial review and judicial restraint? Some of them will stick to their guns, but others will change their minds.
I also have a view about this. I call it the St. Paul effect. The basic principle is this. On big issues like the role of the courts, you can flip once, and people may even give you credit for being thoughtful and open-minded. But you can't flip twice.
Serious people often do change their minds about important questions. We should expect it and even applaud it. But it's very difficult for the same person to flip twice, or people start to think that you aren't being serious. (I'm not saying it can't be done. But you already have to have a well-developed reputation as a free thinker to get people to trust you when you move from position to position.) Moreover, the older you get, the harder it is to jettison very basic views and commitments.
Of course, generations of people are not individual people, and so the fact that a generation of liberals or conservatives will shift on key issues of constitutional theory shows you nothing other than the fact that people are born at different times and are influenced by the periods in which they come of age.
Finally, let me conclude by pointing out that Mike needs to pay closer attention to the difference between someone engaging in sociological or ideological analysis and advocating a particular approach as a normative matter. As he knows, much of my work on constitutional change is sociological. It does not mean that I agree with all of the tendencies that I describe. So he rather jumps the gun in assuming that I, or other constitutional theorists, believe that constitutional theorists, whether liberal or conservative, should be strategic, much less act in bad faith. He also should go back and reread what I said on the merits in the very same post:
I should point out that my own conversion to originalism in 2006 (published in 2007) is orthogonal to the judicial restraint/judicial engagement debate. I always regarded this debate as not very helpful, precisely because I have always believed that whether courts should intervene in any particular case, and how they should intervene, depends on the nature of the constitutional interests at stake. If the best interpretation of the Constitution requires a certain kind of judicial review, then judicial review is appropriate as a matter of judicial duty. If not, then not. (I note that many of my conservative friends who are arguing for judicial engagement have reached pretty much the same conclusion.) There is plenty of room for the political branches (and social movements) to play a role in shaping constitutional culture without taking away the power of judicial review.