Thursday, June 02, 2016

Some Thoughts on John Inazu's "Confident Pluralism"

Mark Tushnet

I just finished reading John Inazu’s “Confident Pluralism,” and will use the two-hour delay of my flight from New Orleans to write a couple of posts about it. This one and the next deal with his critical account of constitutional doctrine about the freedom of association (mainly) and freedom of expression. A third will deal with his prescriptions for good civic behavior – tolerance, humility, and patience – but I hope that my plane will take off before I get around to drafting it.

One feature of Inazu’s criticisms of existing doctrine is that it assumes that judicially enforced doctrine should directly embody the first-order principles that he argues are the most constitutionally appropriate. So, for example, he criticizes the Court for applying different rules to expressive and non-expressive associations because, in his view, the correct constitutional rule is one that balances the interests in association (of whatever sort) against (compelling) government interests. Instead of saying that an ordinary commercial enterprise cannot claim a right of association against a government rule prescribing non-discrimination in the enterprise’s operations, for example, the constitutional rule should be that such an enterprise can claims such a right, but that sometimes the regulation will be justified by a compelling interest in promoting nondiscrimination.

I have some difficulties even with that formulation but I put those aside to offer my own critique of Inazu’s approach. As numerous scholars have shown, sometimes (often?), the rules the courts implement are not direct embodiments of the best first-order interpretations of the Constitution. Rather, they are second-order rules whose justification lies in the fact, or hope, that a system implementing those rules will actually achieve better compliance with the first-order norms than a system in which courts attempt to enforce only the first-order norms.

The reason that imperfect second-order rules might perform better than perfect first-order ones arises from the fact that no one – not even the Supreme Court – can guarantee that the first-order norms will actually be followed. Tell those charged with the “street level” implementation of the right of association to ask themselves whether the impairment of the right of association is justified by a compelling government interest, for example, and lots of those implementers will get the answer wrong (from the point of view of whoever is in charge of determining what the right first-order outcome is). And, given the practical limitations on reviewing all the street-level decisions, there will be lots of mistakes. But, tell the street-level implementers that expressive associations have a constitutional right and non-expressive ones don’t, and, the hope is, you’ll reduce the number of net errors – of course you’ll introduce some errors where the non-expressive association happens to have expressive interests that do outweigh the government’s regulatory interests, but you’ll eliminate the errors that occur when street-level decision-makers determine that an expressive association’s rights are unjustifiably impaired and are mistaken in their assessment of the justification.

Obviously, there’s a lot of empirical stuff built into the second-order argument, but a full critique of existing doctrine at least has to face up to the argument on behalf of second-order implementing rules that differ from first-order “best interpretations.”

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