Saturday, January 11, 2020

Comments on Legal Scholarship (Renewed)

Mark Tushnet

It's been a while since I commented on "developments" (and the like) in legal scholarship, but reading a couple of things over the past two days provoked me.

1. Ephemeral legal scholarship. For reasons not worth going into, I was reading the Supreme Court Review volume for 2013, and found in it a (quite good on its own terms) 100-page article on United States v. Windsor. Dale Carpenter, the author, developed an interesting argument about the shape an "anti-animus" doctrine should take. What struck me about the article is that how thoroughly (I think) it has been superseded by Obergefell. Put another way, Carpenter's argument for a general anti-animus doctrine misses the real-world point that the doctrine was (is?) a gay rights doctrine (even though, as Carpenter points out, there are predecessors in United States v Moreno and Cleburne). One hundred pages of scholarship on something that turned out to be relevant for no more than a half-decade at most seems like overkill. (It's probably too early to do a citation study on Carpenter's article, but my guess would be that there would be some citations before Obergefell, a few in the immediate aftermath, and then crickets -- although I should note that that pattern might well be true of all legal scholarship [I once started to do a citation study of articles published in top-ten law reviews but gave it up when the conceptual and practical questions overwhelmed me].)

One might say, of course, two quite contradictory things. (a) The anti-animus "doctrine" might well be a "good for this day and train" only thing -- but then, we know as common lawyers, that's true of all decisions (when phrased conditionally). Whether something is a precedent for something else depends on what later judges make of it, as Jan Deutsch's great article Precedent and Adjudication argued. (b) The "doctrine" extracted from Windsor might lie around unused for years or decades, only to explode in some as-yet-unknowable future case where it seems to be more suitable than any other available doctrine. So, maybe ephemeral (as almost everything is), but maybe not.

My concluding judgment would be that these observations push in the direction of writing (and publishing, if you can find a law review editorial board that agrees) articles that come in at around twenty pages with one or two interesting ideas that are offered with a single footnote to the effect, "I know there are lots of qualifications and details that I could insert, but those are going to be ephemeral whereas the animating idea here might have some staying power."

2. Quasi-ephemeral cases. As I was thinking about the Carpenter article, it also occurred to me that there are ephemeral Supreme Court cases as well -- not "little" cases that resolve immediate controversies that then disappear, but cases that say things that could have generative impact but don't. My example is Monaco v. Mississippi, a 1934 case dealing expressly with an Eleventh Amendment issue. The Supreme Court has cited the case 38 times, all but four being Eleventh Amendment cases (or discussions of the Eleventh Amendment embedded in cases dealing with other federalism-ish issues).

That's surprising to me because Chief Justice Hughes's opinion contains the following sentence: "Behind the words of the constitutional provisions are postulates which limit and control." This seems to me an all-purpose quotation suitable in all sorts of settings: enforcement of unenumerated rights (Griswold), enforcement of structural restraints not spelled out in the Constitution (Shelby County), and lots more. The line is quoted in Garcia and Printz, but I'm puzzled about why it isn't a go-to sentence much more often.

2. Legal scholarship in the genre of comedy. I don't want to call this "comical legal scholarship" because I'm concerned that that label would be thought critical or pejorative. A good example of legal scholarship in the genre of comedy is a student note published this week in the Harvard Law Review. The note has many moving parts, but I want to focus on only one. The author proposes to admit as new states of the union all 127 neighborhoods in the District of Columbia (thereby creating 254 additional Senators almost all of whom would be Democrats). When Josh Blackman tweeted a link to the note, there were all sorts of comments -- some resting on the idea that the note was offering a serious policy proposal that illuminated something about "liberals" these days. Obviously, though, the proposal has no serious chance of being adopted, and were it adopted there'd be hell to pay.

But I read the note as working in the genre of comedy, with a serious point (which many comedies have). The point is about what I've called constitutional workarounds -- things that are formally consistent with the Constitution's text and not expressly precluded by some other authoritative source such as an on-point Supreme Court decision, but that are transparently inconsistent with what might be called "the point" of the provisions they are working around. (My suggestion about how AOC could be president in 2021 described a workaround for the 35-years-of-age requirement for the presidency.)

So, what's the joke? There seems to be something constitutionally wrong with the proposal, but no one in the comment thread on Blackman's tweet came up with a good argument. A couple of people referred to the last sentence of Article V, that no state shall without its consent be deprived of its equal suffrage in the Senate. That's clearly a non-starter, though. The most obvious difficulty (there are others) is that the sentence can't sensibly be interpreted to mean that diluting a state's suffrage in the Senate counts as depriving it of equal suffrage. Otherwise the admission of every state after the original thirteen unconstitutionally deprived the original thirteen of their equal suffrage in the Senate. If one wants, one can talk fancily about the "construction" of the word "deprive" by decades of practice, but really, under any widely held view of interpretation "deprive" doesn't mean "dilute." (I know, I know -- there's a law of vote dilution under the Voting Rights Act, and that law has some genetic connection to statutory language referring to deprivations or denials of the vote, but this post is already too long).

So, what's the constitutional problem with the 127-new-states proposal? The best I can do is to suggest the possibility that there's some non-textualized constitutional definition of "state" (enforceable by the courts rather than by Congress in deciding which states to admit), and that DC's neighborhoods don't satisfy that definition. I've thought of some possible components of such a definition, but none seem good enough.

So, to conclude, the serious point of the comedy in the student note is about the inability of the Constitution's words to constrain in even the most obvious kinds of cases -- and therefore, even more so in the cases that we really care about.

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