E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
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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
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Deborah Pearlstein dpearlst at yu.edu
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Brian Tamanaha btamanaha at wulaw.wustl.edu
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Yesterday I was contacted by a reporter with PolitiFact,
with a question based on this statement by Joe Biden: “The only court packing
is going on right now. It’s going on with the Republicans packing the Court
now. It’s not constitutional what they're doing.” The question to me was in
connection with a “fact check,” and asked, “Is what's happening right now --
the Republican push to install Amy Coney Barrett as the ninth Supreme Court
justice -- in any way unconstitutional?”
I now realize that I should have answered that the question
was badly posed as a “fact check” one because treating a claim about the
Constitution as implicating a fact – rather than an opinion, or a prediction,
or an assessment of whether there are reasonable arguments one way, the other
way, or both ways – is just a mistake. But I didn’t, and the result, I think,
was a decrease in civic knowledge (if anyone pays attention to PolitiFact).
Here’s my initial response: “As usual with this sort of
thing, the answer’s complicated because ‘unconstitutional’ can and does mean
many things. (1) If ‘unconstitutional’ means that a court would find what the
Republicans are doing to be inconsistent with the Constitution, the answer is
no, no court would make such a holding. (2) If ‘unconstitutional’ means that
what they are doing is inconsistent with what some people reasonably view as
fundamental principles underlying the constitutional order, then yes, what they
are doing is unconstitutional. The political uses of the word ‘unconstitutional’
are different from the purely legal uses, but both (or all) kinds of uses are
well within the bounds of the way we -- ordinary people, politicians, and
lawyers -- talk about the Constitution. I know that this isn’t the way you do
things, but I personally wouldn’t award any Pinocchios to the statement.”
I responded to a follow-up question about my second point by
identifying as a relevant “fundamental principle” that “the political system
should operate over time to ensure that overall all of our institutions are
roughly in line with what the American people want.”
PolitiFact’s editors awarded a “False”
to the Biden statement. The reason, supported by statements they got from Sai
Prakash, Ilya Shapiro, and Robert Levy, appears to be that the word “unconstitutional”
can be applied only to practices that are addressed by some express terms in
the Constitution, supplemented with the proposition that everything not so
addressed is to be determined by politics, understood to include sheer
political power but not to include fundamental principles underlying the
constitutional order. That reason and proposition are coherent and defensible
(though wrong, in my view), but so are alternatives, and the labels “true” and “false”
just aren’t apposite. (The formulation of the question to me – “in any way” – ought
to have caused the PolitiFact editors to reflect a bit more upon their choice.)
Readers of this PolitiFact article know less about the
Constitution than they did before they read it.