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Monday, October 26, 2015

Methodological Case Prerequisites and the (Mild, Ironic, but Real) Reproduction of Hierarchy

Michael Dorf and Larry Solum have a very interesting and mutually respectful dialogue on constitutional interpretive methodology, here (Dorf), here (Solum), here (Dorf), and here (Solum). Key to the discussion is a prerequisite offered by Dorf and labeled by Solum as a species of "Canonical Cases" objection to originalism. In Dorf's most recent words:

[T]here is something wrong with an argument that is sometimes offered to rescue those brands of originalism that produce the "wrong" results in sacrosanct cases like Brown v. Board. The argument asserts that this is not a worry because originalism is compatible with stare decisis, which preserves Brown. As I explained, that argument misconceives the problem, which is that the rightness of Brown and perhaps a few other cases are settled intuitions. It is not sufficient that an originalist judge would not overturn Brown. Any acceptable approach to constitutional interpretation (or construction) must say that Brown was rightly decided.

This reminds me of a classic line that can be found in various constitutional law articles (a good overview is provided in Laura Kalman's great book The Strange Career of Legal Liberalism. The line runs roughly as follows, in the words of one of my articles: "Admission to polite legal circles requires one to avow that Brown was wholly correct and Lochner terribly wrong." It's been around for some time but is nicely presented, quoting Cass Sunstein, in Balkin and Levinson's fun article on The Canons of Constitutional Law

A third reason for increasing interest in the composition of the constitutional canon in particular has to do with the perceived threat to the beloved precedents of the beloved Warren Court . . . . For example, Cass Sunstein, a well-known liberal constitutional theorist, has insisted that “an approach to constitutional interpretation is unacceptable if it entails the incorrectness of Brown v. Board of Education.” This is more than a claim that Brown must be taught to law students . . . . Rather, Sunstein is arguing that Brown is normatively canonical. One can no more criticize it than one can suggest that Mozart is a wildly overrated composer of music for eighteenth-century dinner parties. One establishes oneself as a cultured person by affirming Mozart's genius; one establishes oneself as a properly acculturated lawyer by affirming Brown's correctness.

I suppose it bears saying that I approve of the decision in Brown. And I can see some sense in an approach that treats canonical cases as a prerequisite. But I frankly worry about using the canonical case approach as a prerequisite in discussions of constitutional methodology, or of much else--even when the canonical case is the sainted Brown. Partly it is that I worry about starting with the canonical approach. Substantially, I wonder whether one should talk about it being necessary for a judge in particular to say, in reasoned-elaboration fashion, that Brown was "rightly decided." I could more easily sign on to a prerequisite that said that constitutional methodology, or even the general legitimacy of the Constitution, must allow or even ensure that the outcome in Brown happens, but I'm less sure that this means it must happen through judicial review. Someone must interpret the Constitution to allow for Brown, but it might be some other official or it might be the people themselves, and the role of the Constitution itself might or might not be fairly minimal and post-hoc.

I also worry about those possible "few other cases." Brown alone, or Brown and Lochner? Brown and Lochner only, or those two plus Roe and/or Casey? Just them, or them plus most of the Warren Court's canonical cases? A case here and a case there, and you've got some real money, so to speak. These kinds of approaches end up doing a lot of rhetorical heavy lifting that I doubt helps us think afresh, and that really try to stall or freeze the game at a particular point in time or in a particular way. Although individual treatments vary in their skill and persuasiveness, I think this kind of rhetorical/political game figures a lot in current discussions of Lochner and various so-called "new Lochners" or "new Lochnerism." The phrase purports to be descriptive but is equally (or more?) prescriptive and preclusive, using social embarrassment as a lever.    

In a broader sense, though, I worry that this kind of thing, which I think still accurately characterizes the general sentiment of the gatekeepers of the legal academy, is less about constitutional methodology and more about the gatekeeping itself. A substantial part of my project in teaching constitutional law to students is to teach them the kinds of methods and arguments that won't get them laughed out of constitutional courts. Learning the modalities of constitutional argumentation is not much of a barrier to presenting all kinds of positions and views or pursuing all kinds of political projects, but it does require them to be translated into the kinds of moves that courts will accept as legitimate legal argumentation. The students learn how to get in the game and stay there. But while I'm happy to teach them something about what polite society demands of them, I don't want to preclude their rejection of polite society, or their individual interests in pushing the boundaries of what constitutes a polite society.

Although overwhelmingly politically liberal, the legal academy is also highly conservative and anti-radical. Indeed, while I find a lot to appreciate in the project of blogs like the Heterodox Academy, I worry that these discussions are too much about making sure that the academy makes enough room for doctrinaire conservatives, or doctrinaire conservatives and doctrinaire libertarians, alongside doctrinaire liberals, and not enough about really widening the scope of our discussions. In the legal academy in particular, I worry that we don't make enough room for, let alone positively encourage, people whose views or approaches or priors are more genuinely radical. I wonder what conversations and possibilities we miss as a result.

On those occasions when radicals slip through, we get some very interesting discussions. They can even include second thoughts about Brown itself, viz. Derrick Bell's thought-provoking "dissent" in Brown. To use Robert Cover's phrase, they can be interestingly and valuably jurisgenerative and not jurispathic. Polite society might fear those imagined legal worlds, but in a highly conservative academic field within a highly conservative profession, polite society will still get plenty of innings, and might occasionally end up learning from the radicals or altering its own views. Moreover, starting with this conservative bent can blind us to the degree to which certain debates about fundamental values are necessarily going to recur and, in new ways and contexts, become new sites of contestation (sorry) about those values. Those contests are social and political, not doctrinal, and legal academics (or even, to a lesser extent, judges) cannot really, or indefinitely, erect doctrine as a barrier to that kind of contestation.

Consider the debate over what was "off the wall" or "on the wall" in the first major round of Affordable Care Act litigation. It may be that the legal academy's conservatism, and its investment of its energy in maintaining the barriers of "polite society," led it to a massive failure to predict the viability of this litigation and some of the ideas presented there. More likely, I think, is that what was going on, when various legal academics treated it as self-evident that some line of argument would be rejected as "off the wall," was rhetorical, political, and performative--an effort to ensure, by declaring implicitly, that certain ideas were unacceptable. Saying "Decent people eat with forks" is not just a descriptive statement: it's performative as well, a way of enforcing social norms--against, say, people who eat (perfectly politely) with chopsticks, simply by declaring those norms with assurance and shaming the norm-violator. The same phenomenon is going on in law and religion right now, with such (silly) rhetorical moves as the placement of "'religious liberty'" in scare-quotes as a way of declaring that certain ideas about what "religious liberty" means are simply not accepted by decent people.  

We can and should recognize the many ways in which the legal academy presents, reinforces, and reproduces hierarchy. I tend to think we should resist it, but at a minimum we can try to spot and acknowledge it, and thus reveal to ourselves the ways in which we enact and enforce our own fundamental conservatism. Whatever we think of those cases, let alone their outcomes, we should see the standard "Brown good, Lochner bad" truism as one of those ways. Mild in itself, it bespeaks a larger conservatism about ideas and priors. It is also routinely, easily, and silently extended to a wider range of "polite" views and norms and an effort to reject contestation, even when the contestation is real, unavoidable, and rages outside the university gates. Especially as academics, we should welcome more than we do what Balkin and Levinson call the "perpetual state of intellectual tension" that comes from rejecting such canon-centered approaches. We should acknowledge that contestation--not about racial equality or the evils of segregation, surely, although Bell and others make clear that more can be said about this--about fundamental values is always ongoing; it cannot be resisted by stating formulae, and it should not be resisted by subtle gatekeeping, or by attempting to keep constitutional radicals outside the gates. All this is, of course, pretty far afield from Solum and Dorf's core discussion. It's also probably impolitic for me to say any of this, since I have the usual personal ambitions within our polite academic society. So be it.        

 

Posted by Paul Horwitz on October 26, 2015 at 09:02 AM in Paul Horwitz | Permalink

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