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Wednesday, March 05, 2008

A Question for Rick Hills: On Constitutional Decision Rules and the Institutional First Amendment

I think Prawfsblawg is extremely lucky to have Rick Hills as a guest.  I hardly need justify that statement, but I do want to single out one article in particular: Rick's splendid piece The Constitutional Rights of Private Governments, 78 NYU L. Rev. 144 (2003).  Those of you who have followed my thoughts here know that I am among those who believe we would benefit greatly from a closer consideration of the ways in which a variety speech institutions operate and govern themselves, and that in many respects First Amendment doctrine would benefit from an approach that builds itself from the ground up, closely tracking the practices of these institutions and effectively piggybacking on their own mechanisms of self-governance, rather than attempting to impose ill-fitting doctrines from the top down.  In this intellectual project, Rick's article is a constant source of inspiration and provocation.  Welcome, Rick.

If I may, Rick, let me go ahead and kill two birds with one stone: engaging you in a discussion of some interest to me while simultaneously engaging in relentless self-promotion.  In my article Three Faces of Deference, forthcoming in the Notre Dame Law Review, I attempt to draw connections between two ostensibly disparate emerging areas of constitutional scholarship.  The first is what I was discussing above: that set of scholars, including Rick and myself but also many others, notably including Fred Schauer, who have argued that we ought to pay increased attention to the role and value of institutional speakers (and worshippers, in the Free Exercise context) in our social firmament.  The other emerging area of scholarship is the study of constitutional decision rules.  We might sum this up roughly as the study of the distinction between constitutional meaning and constitutional implementation, the recognition that there may be a difference between the two, and the elaboration of a richer understanding of the ways in which courts implement constitutional norms in institutionally (in)appropriate ways.  Charter figures here include Richard Fallon, Kim Roosevelt, Mitchell Berman, and others.

Rick, you've also written usefully (and in an extremely readable fashion -- it's a great piece!) about this area of scholarship, in the Harvard Law Review Forum.  (If I'm not mistaken, you expand on these thoughts in a work in progress on anti-pragmatic constitutional theory.  Would you send me a draft of that paper one of these days?  Pretty please?)  As  I understand your piece, you argue that the distinction between constitutional meaning and constitutional implementation is "seductively misleading" because, ultimately, it's implementation all the way down.  Nevertheless, you agree that a focus on implementation is itself "extraordinarily helpful," both because it sharpens our understanding of constitutional doctrine and because it helps remind us of, and disabuse us of, "a deeply felt desire of judges and scholars to  achieve noninstrumental certainty in the law."

One of the goals of my Notre Dame piece is to argue that although these two fields of constitutional scholarship are seemingly disparate, they are in fact intimately related -- and that what ties them together, to a substantial degree, is the centrality in both fields of the concept of deference.  I write: "[L]inked at the focal point of deference, both of these emerging bodies of constitutional literature have much to gain from each other.  Institutional First Amendment theory advances the practical goals of constitutional decision rules theory.  In turn, decision rules theory supplies First Amendment institutionalism with legitimacy and a place on the constitutional map."  I conclude that these schools of thought "might profit considerably from a deeper mutual engagement."

With typical and unseemly bravado, Rick, I say that it is ironic that scholars have not already recognized and/or drawn a more explicit connection between these two areas of constitutional scholarship -- especially given that you have contributed to both bodies of literature.  So let me ask: Do you think there are connections between these two areas?  Do you think that your NYU piece and your Harvard piece are connected in ways that perhaps have gone unspoken so far?  Is a focus on the "constitutional rights of private governments," and perhaps more broadly still a concern for the place of institutions in our social and constitutional universe, one way of "resist[ing] the call to hunt for the Snark of 'pure,' noninstrumental constitutional value," as you put it?  Inquiring minds -- one inquiring mind, anyway -- want to know.          

Posted by Paul Horwitz on March 5, 2008 at 05:07 PM in First Amendment | Permalink

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