Implementing the Constitution

IMPLEMENTING THE CONSTITUTION Richard H. Fallon, Jr. Implementing the Constitution H A RVA R D U N I V E R S I T Y ...

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IMPLEMENTING THE CONSTITUTION

Richard H. Fallon, Jr.

Implementing the Constitution

H A RVA R D U N I V E R S I T Y P R E S S

Cambridge, Massachusetts, and London, England

2001

Copyright © 2001 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America Library of Congress Cataloging-in-Publication Data Fallon, Richard H., 1952– Implementing the constitution / Richard H. Fallon, Jr. p. cm. Includes bibliographical references and index. ISBN 0-674-00464-7 1. United States. Supreme Court. 2. Constitutional law—United States. KF8742 .F35 2001 347.73⬘262—dc21

I. Title.

00-063477

For my family

Contents

Preface ix Introduction: The Supreme Court’s Disputed Role

1

Originalism

2

The Supreme Court as the Forum of Principle

3

Constitutional Implementation

4

Extraordinary Adjudication

5

Doctrinal Tests and the Constitution

6

Ordinary Adjudication

7

Legitimacy and the Unwritten Constitution

8

Against Populism and Methodological Pragmatism

13

Index 183

26

37

45 76

102

Conclusion: Beyond History and Philosophy Notes 139

1

111

134

127

Preface

This is a book about the role of the Supreme Court in American constitutional government. It attempts to focus attention on the role of Supreme Court Justices as practical lawyers, charged with implementing the Constitution. The book is partly reactive: it reacts against current theories according to which the Justices would ideally function principally as either historians or philosophers with the abstract aim of discovering the Constitution’s one true meaning. In my account, developing a workable doctrinal structure is often as important as searching for meaning. It is not by accident that the Supreme Court is composed of lawyers, not historians or philosophers. Yet if the book is reactive, I hope that it is neither caustic nor accusatory. My aim is partly synthetic. I hope to draw insights from approaches that I reject. In particular, I mean to demonstrate that it is impossible to think clearly about constitutional adjudication without engaging a number of deep and recurring issues of applied political theory, especially involving fair allocations of political power under circumstances of reasonable disagreement. The book grows from many years of thinking, teaching, and writing about constitutional law. In pursuing my formal and informal studies, I have had many inspirations and many teachers. My debts are far too numerous to acknowledge adequately. Some of the deepest are those that extend furthest back in time, especially those to my family. I also learned immeasurably from clerkships with Judge J. Skelly Wright (in 1980–81) and Justice Lewis F. Powell, Jr. (in 1981–82). For the past eighteen years, I have been privileged to teach at Harvard Law School, where my students and colleagues have taught me much. Dean Robert Clark speciﬁcally supported the book by granting me a research leave in the spring of 1999. I also owe special thanks to the 1997 editorial board of the Harvard Law Review for their invitation to write the Foreword for the ix

x

Preface

Review’s annual Supreme Court issue in November 1997. In preparing that Foreword, I began to develop some of the central ideas that this book elaborates. A number of friends and colleagues read drafts of one or another part of this book. I am deeply grateful to all of them, including Sharon Dolovich, Dan Farber, Joel Goldstein, Larry Lessig, Frank Michelman, Martha Minow, Henry Monaghan, Rick Pildes, Connie Rosati, Fred Schauer, David Shapiro, Cass Sunstein, and Lloyd Weinreb. I also beneﬁted greatly from speciﬁc, memorable conversations with Larry Sager. I am especially appreciative of the generosity of those who read and commented on a draft of the entire manuscript: Michael Dorf, Dan Meltzer, Nicholas Papaspyrou, Eric Rakowski, Margo Schlanger, and David Strauss. In this as in other projects, my assistant Nancy Thompson has furnished the best of logistical, secretarial, and other support. Ana Reyes not only provided research assistance, but also functioned as an invaluable critic and editor. Ben Gruenstein, Cathy Claypoole, and Joe Liu performed similar services similarly well at earlier stages of the project. Even if I could otherwise have completed this book, my work would not have seemed worthwhile without the indulgence, support, and good humor of my wife, Jenny, and my children, Libby and Doug. In writing this book, I have drawn on three previously published articles, portions of which appear here in revised form. I am grateful to the journals that originally published them for permission to borrow from the following pieces: “How to Choose a Constitutional Theory,” 87 California Law Review 535 (1999), (c) 1999 California Law Review, Inc.; “Implementing the Constitution,” 111 Harvard Law Review 54 (1997); and “A Constructivist Coherence Theory of Constitutional Interpretation,” 100 Harvard Law Review 1189 (1987).

IMPLEMENTING THE CONSTITUTION

Introduction: The Supreme Court’s Disputed Role

After more than two hundred years of constitutional history, the role of the Supreme Court of the United States remains both disputed and widely misunderstood. Agreement exists on many basic facts. The Constitution holds itself out as “higher law” that bounds the legitimate powers of the legislative, executive, and judicial branches. The Constitution does not explicitly mandate “judicial review”—the power of courts to determine whether actions by the Executive and legislation enacted by Congress comport with the Constitution. Nonetheless, many in the founding generation assumed that the courts would exercise this function,1 and the Supreme Court claimed it in Marbury v. Madison, decided in 1803.2 Today the Court’s authority to resolve constitutional disputes no longer engenders serious controversy. At the origin of our constitutional regime, Alexander Hamilton described the judiciary as “the least dangerous” branch.3 As he shrewdly observed, the courts held the power neither of the sword nor of the purse.4 Today, however, references to the judiciary as “the least dangerous branch” are often tinged with irony. From as early as Marbury itself, the courts and especially the U.S. Supreme Court have accumulated enormous power. Within living memory, the federal courts upset historic patterns of race relations by requiring the desegregation ﬁrst of public schools5 and then of other facilities,6 even though those who wrote and ratiﬁed the relevant constitutional provisions apparently did not understand them to forbid school segregation.7 In the 1960s the Court held school-sponsored prayer unconstitutional,8 again despite a lack of evidence that the Constitution was historically intended to prescribe this result.9 The Court has also recognized a right to abortion,10 even though the word abortion appears nowhere in the Constitution. There can be little doubt of the Supreme Court’s power to humble presi1

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Implementing the Constitution

dents. When the Court ordered Richard Nixon to surrender White House tape recordings to a federal grand jury,11 the president knew that he had no real choice; resistance would almost surely have provoked his speedy impeachment and removal from ofﬁce. Two decades earlier, President Harry Truman had been similarly brought up short. Confronted with the threat of a production-stopping strike during the Korean War, Truman ordered his secretary of commerce to seize and operate the nation’s steel mills. When the Supreme Court held the seizure unconstitutional,12 however, Truman grudgingly but unhesitatingly complied with the Court’s order.13 Nor are Congress and federal legislation beyond judicial oversight. To cite just a pair of examples, the Supreme Court in recent years has invalidated popular legislation that would have criminalized ﬂag burning.14 It has also held that Congress cannot compel state and local police to conduct background checks on purchasers of handguns.15 Against the background of accepted historical practice, the question whether the Supreme Court should exercise judicial review does not engender much confusion or misunderstanding. Nor is there any doubt that the Court wields enormous power. Uncertainty and confusion do arise, however, from the closely related questions of what exactly the Court does, and what it should do, in deciding constitutional cases. In light of the well-known distinction between “positive” (or “descriptive”) and “normative” theories, the questions of what the Court does and what it should do might appear to be sharply distinct. Undoubtedly they are different. Nonetheless, the two questions are not always easily separated in constitutional law. As I have noted already, the Constitution nowhere refers directly to judicial review. It does not indicate whether, much less how, the Supreme Court should execute this function. Partly as a result, the Court has had to deﬁne its own powers and duties. The product of evolution, the Court’s role reﬂects the Justices’ perceptions not only of the Court’s capacities, but also of the capacities of other institutions of state and federal government. Reciprocally, other institutions have assumed their current powers and deﬁned their responsibilities partly in response to judicial doctrine and to expectations concerning the judicial role. Within this complex network, what the Court ought to do is at least partly shaped by what other actors in the constitutional scheme rely on it to do. Also relevant is the practical harm (or good) that would result if the Court were sharply to alter the role that it plays. In recent years, two positions about the Court’s actual and proper func-

Introduction: The Supreme Court’s Disputed Role

3

tions have achieved special prominence. Both have been developed most fully in the academic literature, but they reﬂect ideals that are shared more broadly in the general culture. In this book, I argue that neither of the leading positions provides an accurate model of the Supreme Court’s role and that neither deﬁnes an attractive, workable ideal. The ﬁrst of the prominent theories, called “originalism,” holds that the Supreme Court behaves legitimately only when it adheres strictly to the original understanding of constitutional language.16 For originalists, the Court’s overriding function is to identify the meaning of the Constitution. And for the Constitution to serve as law that binds courts as well as others, originalists claim that its meaning must be ﬁxed forever by the original understanding of constitutional language. The Justices should not impose their own views of what would be desirable. Rather, in deciding constitutional cases, the Court should play the role of an acute and dutiful historian. As I argue at length, the originalist model departs radically from actual Supreme Court practice. As originalists themselves acknowledge, doctrines that are of central importance in contemporary constitutional law could not be justiﬁed on originalist grounds. These include doctrines that ensure broad freedoms of speech, enforce so-called one person, one vote principles, and prohibit various forms of race and gender discrimination.17 Had the Court been rigidly originalist in the past, important steps toward social justice and fair political democracy likely would have been postponed, if not forgone. Nor can originalism provide sensible prescriptions concerning how the Court should proceed in the future. Simply to uproot nonoriginalist lines of authority would frustrate settled expectations and sow disorder. Even most originalists therefore eschew this robust prescription. Instead, most call only for the selective pruning of doctrines that they ﬁnd especially offensive. Typically, however, the originalists’ pruning schemes lack the principled discipline that they purport to prize. Their claim that nonoriginalist decisions are “illegitimate” also ﬁts uneasily with their acknowledgement that many nonoriginalist lines of authority should continue to be enforced. Perhaps the strongest intellectual rival to originalism—as embodied in the writings of legal philosopher Ronald Dworkin—characterizes the Supreme Court as the ultimate “forum of principle.”18 For Dworkin as for originalists, the Court’s dominant function is to identify the Constitution’s one true meaning. In sharp contrast with originalists, however, Dworkin rejects the equation of constitutional meaning with original intent or understanding. In his view, the Constitution embodies “principles” that can be properly identi-

4

Implementing the Constitution

ﬁed only through a highly moralized, philosophic inquiry.19 For example, the constitutional guarantee of the equal protection of the laws is not a shorthand reference to what a previous generation believed “equal protection” to mean,20 but a pledge to provide whatever the ideal of equal protection might truly require in light of the best moral and political theory.21 Where originalists would cast the Court in the role of historian, Dworkin substitutes the part of political philosopher. Much of Dworkin’s account is remarkably helpful and insightful. In particular, I believe he is correct that we should equate constitutional meaning with norms, values, or principles that the Constitution embodies. I also agree that constitutional norms should be construed purposively and sometimes capaciously. As Chief Justice John Marshall wrote in the early, important case of McCulloch v. Maryland22—in holding that Congress could establish a Bank of the United States, even though no single provision of the Constitution expressly conferred such authority—“we must never forget, that it is a constitution we are expounding.”23 Marshall’s point was not that the Court can twist constitutional language in whatever direction might serve its own ends. It was, rather, that we better ﬂatter the Constitution and are more likely to get good constitutional law if we regard the Constitution as a charter of practically workable powers and morally resonant principles than if we treat it as a code-like effort by past generations to dictate to future generations in precise, niggling detail. Despite my agreement with Dworkin on these basic points, in this book I argue that the forum-of-principle model provides at best an incomplete description of what the Court does and ought to do. Besides conducting philosophical inquiries, the Justices frequently must function as practical lawyers and, in that role, must craft doctrines and tests that reﬂect judgments of constitutional meaning but are not perfectly determined by it. With its emphasis that the method of philosophy can yield “one right answer”24 to every constitutional question, the forum-of-principle approach also fails to illuminate how the Justices should deal with uncertainty and recognition of their own fallibility in situations of reasonable disagreement. The Justices, I argue, do not enjoy an unlimited charter to do what is right by their moral lights; in assigning meaning to open-ended constitutional language, the Court must achieve results that are at least democratically acceptable over time, even if they are not immediately approved by popular majorities. Dworkin’s theory similarly ignores other forces that sometimes require the Justices to make compromises. Apart from being truth tellers, the Justices have an obligation

Introduction: The Supreme Court’s Disputed Role

5

to produce clear, workable law. In service of this aim, they must sometimes accommodate each other’s views in order to produce “opinions of the Court” instead of a collection of individual essays. Rather than picturing the Justices as pervasively engaged in a search for the Constitution’s one true meaning, I argue in this book that we should understand the Supreme Court’s role as a more multifaceted one of “implementing” constitutional norms. The term implementation invites recognition that the function of putting the Constitution effectively into practice is a necessarily collaborative one, which often requires compromise and accommodation. It also emphasizes the practical, frequently strategic aspects of the Court’s work. A distinctive feature of the Supreme Court’s function involves the formulation of constitutional rules, formulas, and tests, sometimes consisting of multiple parts. Thus, for better or for worse, the Court has said that most governmental classiﬁcations will survive challenge under the Equal Protection Clause if supported by any “rational basis”;25 that false and defamatory statements about public ofﬁcials are protected unless uttered “with ‘actual malice’—that is, with knowledge that [they were] false or with reckless disregard for whether [they were] false or not”;26 and that commercial advertising may be regulated by the government only pursuant to a fourpart test.27 Especially in formulating tests such as these, the Court does not characteristically engage in historical or moral philosophical analysis, nor does it attempt to determine whether particular events in the world come within the semantic meaning of a constitutional norm. Rather, the Court devises and then implements strategies for enforcing constitutional values. The Constitution—as illuminated by history and philosophy—provides a vision, but not all the details about how that vision should be achieved or approximated. The work that remains to be done is distinctively lawyers’ work, involving not just the identiﬁcation of constitutional meaning, but also the creative design of implementing strategies and the allocation of responsibility between courts and other institutions of government. In considering the Court’s role in implementing the Constitution, it is useful to remember that the Constitution does not speak exclusively, nor always primarily, to the courts. The First Amendment begins by reciting that “Congress shall make no law.”28 The Fourth Amendment addresses a broader range of ofﬁcials, by prescribing that “[t]he right of the people . . . against unreasonable searches and seizures, shall not be violated.”29 Against this background, judicially prescribed tests do not (and should not) always

6

Implementing the Constitution

reﬂect the Court’s direct assessment of constitutional meaning, but sometimes embody the Court’s judgment about an appropriate standard of judicial review, indicating the circumstances in which other ofﬁcials will be held by courts to have failed to meet their primary duties. A particularly striking example of a standard of judicial review that is distinct from constitutional meaning arises under the Due Process Clause. The primary guarantee is that no individual may be deprived of life, liberty, or property without due process of law. In some actions brought to enforce the Due Process Clause, such as suits by inmates claiming that they have been unfairly subjected to prison discipline, courts will deny relief as long as there is “some evidence” in the record to support the challenged decision.30 If viewed as a measure of the “meaning” of due process, the “some evidence” standard would make no sense. An ofﬁcial who maliciously deprived an inmate of liberty or property, knowing that this was a wrongful decision in light of all the properly presented evidence, would fail to provide “due process of law” in the most basic sense. This would be so even if there were “some evidence” in the record tending to support the otherwise wrongful decision, so that it could not be upset on judicial review. Rather than furnishing an interpretive judgment about the Constitution’s meaning, the “some evidence” test is a standard of review that largely trusts administrative ofﬁcials to follow the Constitution and provides for judicial redress only in relatively egregious circumstances.31 By no means is it necessarily inappropriate for the Supreme Court to develop a doctrinal test that stops short of enforcing the Constitution’s full conceptual meaning. As I have suggested already and argue at length below, the Court is entitled to share responsibility for implementing the Constitution. In doing so, it must make practical judgments about the most desirable scope of judicial review under different constitutional provisions in various institutional contexts. Just as some doctrinal tests fail to enforce underlying constitutional norms to what Lawrence Sager has called their “full conceptual limits,”32 others embody prophylactic safeguards that produce a corresponding “overenforcement” of ultimate constitutional meaning. A well-known example of overenforcement (indeed, one that is probably too explicit to be representative) comes from Miranda v. Arizona,33 which initiated the requirement that police give so-called Miranda warnings before questioning criminal suspects.34 If the underlying constitutional norm forbids the coercion of confessions,35 then Miranda plainly goes further by stopping the police from obtaining some confessions that would not in fact be coerced. Nonetheless,

Introduction: The Supreme Court’s Disputed Role

7

Miranda may be justiﬁed if it would be impossible, in practice, to identify all the confessions that actually would be coerced in the absence of a broad, categorical rule such as Miranda establishes. In short, Miranda—like cases in which the Court formulates standards of judicial review that underenforce constitutional norms—shows the Court making practical, instrumental, and tactical judgments about the appropriate role of the judicial branch in securing effective constitutional implementation.36 In suggesting that the Supreme Court sometimes performs a function of crafting or applying constitutional doctrine that is distinct from the speciﬁcation of constitutional meaning, I do not mean to claim that these missions are always distinguishable in practice. The Court seldom if ever separates them explicitly. Indeed, as I discuss in Chapter 7, the Court may believe that its perceived legitimacy requires it to sustain the impression that the Constitution uniquely dictates its holdings, with no need for creative judicial intermediation. Nor would I deny that the various components of the Court’s role could all be described as aspects of “interpretation.” Thus someone could agree with all of the claims that I make about the Court’s several functions in “implementing” the Constitution, but insist that all can be subsumed under an appropriately capacious conception of constitutional “interpretation.” What I do submit is that by rejecting the mesmerizing notion that the Court’s only proper role is identifying the Constitution’s one, true meaning, we can get a richer picture of what the Court does and a more enlightening framework for considering what the Court ought to do. For one thing, abandoning the view of doctrine as ideally being a perfect reﬂection of constitutional meaning helps us better appreciate the array of choices open to the Court in crafting rules and tests. We can begin to see different kinds of tests that the Court familiarly uses as available, but seldom necessary, mechanisms for protecting constitutional values. Moreover, when we recognize that the Court may sometimes under- as well as overenforce constitutional norms, we can appreciate the urgency of assessing the grounds on which the Court determines whether to do so. My account of the Supreme Court’s role in implementing the Constitution obviously invites an important objection: insofar as the Court either over- or underenforces the Constitution’s meaning, it betrays its recognized obligation of constitutional “ﬁdelity”37 or otherwise behaves illegitimately. By common consensus, the Justices have a duty to be faithful to the Constitution. By underenforcing the Constitution, or by restricting ofﬁcial action in ways that the Constitution does not directly command, how do the Justices

8

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not necessarily betray their oaths of ofﬁce? In response to objections such as this, I argue in Chapter 7 that the United States effectively has an unwritten as well as a written Constitution and that the unwritten constitution adequately authorizes the Supreme Court’s characteristic role. Slightly more speciﬁcally, the unwritten constitution partly mediates the written Constitution, but perhaps more importantly it authorizes the Court’s role in implementing the written Constitution through doctrines that reﬂect, but are not uniquely determined by, the written Constitution itself. Originalists, in particular, attack the legitimacy of norms and practices that cannot be justiﬁed by what otherwise would be the best interpretation of the written Constitution. I argue, however, that their position misunderstands the extent to which legal legitimacy is necessarily rooted in contemporary social practices and patterns of acceptance. In developing my view about the Supreme Court’s role in implementing the Constitution, I stress three related themes. First, as I have suggested already, the Court’s mission is a highly practical one, in which history and philosophy are crucially relevant but seldom sufﬁcient. The Justices must also make assessments of what will work in practice—in light of such considerations as human psychology, institutional sociology, prevailing values, history, and economics—to implement constitutional norms at acceptable costs. At their best, the Justices function as practical lawyers and occasionally as statespersons. Second, as Dworkin has suggested, the Justices sometimes have the opportunity to be moral heroes by providing the best “moral reading”38 of constitutional guarantees and thereby advancing substantive justice. Brown v. Board of Education39 epitomizes the Court’s capacity to play this role. Other decisions expanding rights of equality and political participation have similarly advanced substantive justice in line with general constitutional values. In this book, however, I argue that the Justices have no obligation always to assign to constitutional language the meaning that would best accord with substantive justice as they personally understand it. In some contexts, the Court appropriately shares responsibility for implementing the Constitution with other institutions of government. Third, both in specifying constitutional meaning and in crafting constitutional doctrine, the Supreme Court confronts and ultimately must accommodate—without simply surrendering in the face of—at least two separate challenges arising from the phenomenon of reasonable disagreement.40 Many constitutional questions lack answers that can be proved correct by

Introduction: The Supreme Court’s Disputed Role

9

straightforward chains of rationally irresistible arguments. Reasonable people can differ about appropriate constitutional outcomes. On its face, the phenomenon of reasonable disagreement generates a question of democratic legitimacy or fair allocation of political power: in cases of reasonable disagreement, would it not be fairer to let the majority rather than the Court decide (at least if the majority wishes to do so)?41 In this book I argue that the concern about fair allocation of political power is indeed a serious one, which sometimes should move the Court to temper its judgments or accord deference to the views of others. But the Court has not adopted the view that it should always defer in the face of reasonable disagreement,42 nor would strong deference always be appropriate. For one thing, most decisions that are subject to judicial review are not made by legislatures but by low-level ofﬁcials and administrative agencies that lack any strong democratic mandate.43 Decisions by such ofﬁcials are in principle subject to democratic control and correction, but the actual prospect of democratic intervention is often small. No one expects the legislature to determine in detail the circumstances under which cops on the beat can effect searches or seizures. Judicial review of course extends to decisions made directly by electorally accountable ofﬁcials and, indeed, involves scrutiny of statutes enacted by state legislatures and the Congress of the United States. Even legislation, however, seldom represents the truly considered judgment of a majority of the citizenry about the meaning or applicability of ultimate constitutional principles.44 With respect to matters of constitutional principle, our system has traditionally, and by no means absurdly, proceeded on the assumption that the most careful thinking about constitutional matters will occur in the courts and that the Supreme Court, in exercising judicial review, functions as an institution of, rather than as an impediment to, constitutional democracy. In assessing how the Constitution is best construed or implemented, the Court—to some extent, at least—has a proxy to act on behalf of the constitutional community. Also to some extent, the Court has the capacity to inﬂuence thought and discourse. The time for measuring the democratic acceptability of Supreme Court rulings is not the immediate present, but the future.45 A further consideration supporting judicial review—even in cases of reasonable disagreement—is more complex but equally basic. Acknowledgment of reasonable disagreement does not entail radical skepticism. We can recognize that people reasonably disagree about moral, political, and constitutional matters without also accepting that what ought to be done is a mat-

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Implementing the Constitution

ter of mere subjective opinion.46 From the limits of current knowledge and the frailty of human rational powers, it would be mistaken to conclude that there is no truth to be known.47 In practical matters, experience also conﬁrms the common sense distinction between good and bad judgment.48 Thus, while recognizing that reasonable people differ, we can still sensibly vest responsibility for relatively nondeferential constitutional judgment in a deliberative, nonmajoritarian institution. We have rational hope of thus getting better determinations of constitutional principle than we would from the not necessarily unreasonable judgments of other, more politically accountable bodies. This, ultimately, is the foundation on which the case for relatively robust judicial review must stand: the exercise of independent judicial judgment is likely, over time, to lead to better speciﬁcation and implementation of constitutional values than would an alternative regime, under which any governmental action that could reasonably be viewed as constitutional would be upheld.49 But any intellectually honest defense of this position requires qualiﬁcation. Even if there are better and worse answers to questions of constitutional justice, neither particular groups of concerned citizens nor the Supreme Court will always have reliable means of ascertaining them; in some cases, epistemological uncertainty will be especially appropriate or acute. What is more, even if the Court has a comparative advantage in deliberating about questions of substantive constitutional justice, it surely does not follow that there can be no conﬂict among constitutional values. To recognize the importance of substantively better decisions is not to deny the existence of a distinct, partly competitive value favoring decision making by political majorities, at least where the wishes of political majorities are manifest and their constitutional judgment is not unreasonable.50 This is of course the central problem of judicial review, with which I am concerned throughout this book. To summarize (and partly oversimplify) my conclusions at the outset, I argue that a regime of relatively robust judicial review is generally defensible, but the Supreme Court will sometimes have good reasons, rooted in concerns about the fair allocation of political power and its own comparative competence to reach sound decisions, to decline to displace the judgments of other institutions. This is especially true when the Court is unusually doubtful about the validity of what otherwise would be its own substantive judgment; when any injustice resulting from deference would not (in its judgment) be very great; and when there is a strong likelihood that independent judicial resolution would prove intensely

Introduction: The Supreme Court’s Disputed Role

11

unacceptable to large numbers of people whose views are not themselves unreasonable. The second challenge resulting from reasonable disagreement, which I also emphasize in this book, involves the internal functioning of the Supreme Court. Frequently the Justices can reasonably disagree among themselves both about how constitutional meaning would best be speciﬁed and about which implementing structures (or doctrinal tests) would ideally be employed. The range of possible positions is often broad; if each Justice insisted on what she thought would be optimal, no majority view (and thus no clear and workable doctrine) might emerge. In order to implement the Constitution effectively in the face of reasonable disagreement, the Justices must therefore be prepared sometimes to subordinate their personal views of how the Constitution would ideally be understood and implemented. In urging the importance of compromise and accommodation, I do not mean to slight the role of principle. All Supreme Court decision making should occur in light of constitutional ideals. Some issues are worth ﬁghting over. Nonetheless, in determining when to compromise and when to hold out, the Justices must make complex judgments based partly on a vision of constitutional ideals and partly on assessments of what, instrumentally, is likely to do the most good over time. In comparison with Dworkin’s forum-of-principle view, my account of the Supreme Court’s role may appear somewhat deﬂating. I would prefer to think that it instead calls for the Court to exercise a distinct, but no less admirable or important, set of virtues. Moreover, the practical and lawyerly virtues that I emphasize are virtues that it is more reasonable to expect the Justices—who typically are not trained originalist historians or accomplished philosophers—actually to possess. My argument in this book unfolds somewhat dialectically. Chapters 1 and 2 offer detailed critiques of the originalist and forum-of-principle views concerning the Supreme Court’s proper role. Chapter 3 brieﬂy summarizes my alternative account, which then is more fully developed in subsequent chapters. Chapter 4 discusses the Court’s role in “extraordinary” cases, in which the Court directly confronts issues about how constitutional principles should best be speciﬁed or implemented. In the wake of the general discussion in Chapter 4, Chapter 5 deals with the kinds of tests that the Court has developed in extraordinary cases to implement the Constitution and with how those tests reﬂect the Court’s understanding of its functions. (Chapter 5 delves more into the intricacies of speciﬁc Supreme Court doc-

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trines than any other chapter in the book; readers who lack a strong doctrinal background may prefer only to skim it, or possibly even skip it entirely.) Chapter 6 then takes up the too often ignored phenomenon of “ordinary” adjudication, in which the Court purports simply to apply settled doctrine. This chapter argues that the acceptance of doctrine is crucial to successful constitutional implementation—even though doctrine, in principle, is always open to reconsideration. In response to an anticipated challenge that my account depicts the Court as betraying a fundamental obligation of “ﬁdelity” to the written Constitution, Chapter 7 argues that the Court’s multifaceted function of constitutional implementation is authorized by unwritten but nonetheless legitimate constitutional norms. Chapter 8 defends my account of the Court’s proper role against challenges from “populists” who would renounce the entire enterprise of judicial review and from those “pragmatists” who deny that the Court should view itself as bound by any methodological norms whatsoever.

CHAPTER

1 Originalism

When quizzed about the appropriate role of the Supreme Court in American government, most law students—and I would guess most interested citizens—tend almost reﬂexively to rely on a theory that has been labeled most recently as “originalism.” In a sentence, originalism holds that the Supreme Court should interpret the Constitution to reﬂect the “original understanding” of those who wrote and ratiﬁed relevant language.1 When the framing generation bound themselves and their posterity by adopting constitutional language, the meaning of their self-imposed restraint was reﬂected in what reasonable people of the time would have taken their words to mean—no more, and no less. However great its intuitive appeal, originalism does not describe the actual practice of the Supreme Court. Neither, more importantly, does it offer attractive prescriptions for how the Court ought to behave in the future. Two fundamental, closely related problems beset originalist theory. The ﬁrst, which others have stressed, involves the gap between the framers’ world and that which we inhabit.2 Most of the Constitution was written over two hundred years ago by an exclusive group of white males, many of them slaveholders.3 The nation was still predominantly agrarian at the time of the Constitution’s ratiﬁcation; the principal commerce was maritime. Overseas communication required sending messages or envoys by ship; the United States was not a world power. No one contemplated Social Security, Medicare, or a nationally funded welfare system. In peacetime, the national government was expected to play only a minimal role.4 The most transformative amendments to the Constitution came a century later, following a bloody civil war. Even then, women remained excluded from the franchise and, almost without exception, from the professions.5 Public education remained inchoate; there were few great state universities. The national imag13

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Implementing the Constitution

ination continued to be captivated by an open frontier. It was still virtually unthinkable that the national government might enact legislation to protect the environment or establish institutions (such as the Federal Reserve Board) to regulate the economy. In light of the differences between the framers’ world and ours, the framing and ratifying generations typically had no occasion to consider—indeed, they could scarcely have imagined—many of the speciﬁc issues that confront policy makers and courts today. What is more, as Lawrence Lessig has argued, even when speciﬁc historical understandings might appear to bear on an issue, they are often time-bound and anachronistic.6 To take just a single important example, it appears that the framers and ratiﬁers of the Fourteenth Amendment did not comprehend it to bar segregation in public education, apparently because they did not view public education as a “fundamental” right.7 With respect to this and many issues, Lessig plausibly contends that ﬁdelity to the framing and ratifying generations’ overall designs would require “translating” their speciﬁc constitutional expectations in order to realize their deeper goals or “meanings” in a radically altered social, technological, and economic environment.8 But translation could hardly be value-neutral,9 and by nature it calls for ﬂuidity, not ﬁxity, in constitutional interpretation. On the whole, originalists dislike ﬂuidity. Among their principal aims is determinate law that would bind courts as well as legislatures. Self-styled originalists therefore tend to resist “translation” and, instead, typically opt to search for the original understanding on relatively precise points—even though, as I have noted, the framers and ratiﬁers often could scarcely have imagined the speciﬁc questions that arise today. Adjustments in the level of generality at which questions are framed are therefore inevitable, but equally inevitably give rise to issues of rigor and consistency. No matter how meticulous their historical scholarship, self-styled originalists would encounter grave methodological difﬁculties in their attempt to mark a sensible path between rigidity and anachronism, on the one hand, and approaches that they regard as too ﬂuid or undisciplined, on the other.10 The second, related problem concerning originalist theory, and the one I emphasize in this chapter, involves its incompatibility with enormous bodies of nonoriginalist precedent. Much of this precedent is now so rooted in our system, and so surrounded by institutions and expectations that depend on it, that even originalists commonly acknowledge that their theory could not sensibly be put into practice without a good deal of trimming. But the efforts

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15

at trimming tend to lack principle and discipline, and thus to deprive originalism of much of what makes it alluring (at least to many) in the ﬁrst place. When confronted with objections to their methodology, originalists often protest that their approach is literally irreplaceable.11 The Constitution requires originalist interpretation, they argue; even if originalism cannot be realized completely, there is no excuse for failing to maintain the ideal. But this position is far from self-evidently correct. Originalists themselves at least implicitly recognize as much when they defend their theory as necessary to promote such values as the rule of law, democracy, and a secure and acceptable regime of individual rights. When these standards of evaluation are introduced, as they must be, originalism comes up short.

The “Problem” of Nonoriginalist Precedent In asserting that the Supreme Court should decide cases in accord with the framers’ and ratiﬁers’ original understanding, originalists confront an immediate embarrassment. As they themselves readily admit, a great deal of existing constitutional doctrine—including much that we are likely to think most important—cannot be justiﬁed on originalist principles.12 A long list would be both tedious and at least somewhat controversial, but a few examples may illustrate the stakes. To begin with the First Amendment, it appears that the framers and ratiﬁers understood the free speech guarantee as limited to outlawing systems of administrative censorship and possibly (but by no means clearly) forbidding punishments for criticism of the government.13 By contrast, modern First Amendment doctrine affords protection to virtually every form of participation in “the marketplace of ideas,” from commercial advertising14 to sexually explicit speech to ﬂag burning.15 The framers and ratiﬁers of the Fourteenth Amendment’s Equal Protection Clause did not understand their handiwork to threaten existing practices of grossly unequal legislative districting,16 of racial segregation in the public schools,17 or of gender-based discrimination.18 Yet Supreme Court doctrine has established the one person, one vote rule,19 abolished explicitly race-based schooling,20 and forbidden many forms of gender discrimination.21 It is at best questionable whether the framers and ratiﬁers of any constitutional provision understood themselves as having made the Bill of Rights applicable against the states (instead of just restraining the federal government).22 As a doctrinal matter, however, nearly all guarantees of the Bill of Rights are

16

Implementing the Constitution

enforced against state and local governments.23 To take a ﬁnal example, no provision of the Constitution was originally understood to forbid race and gender discrimination by the federal government. The original Constitution actually protected the institution of slavery,24 and the Fourteenth Amendment, which ﬁrst introduced an “equal protection” guarantee, explicitly applies only to the states.25 In a companion case to Brown v. Board of Education,26 however, the Supreme Court pronounced it simply unthinkable that the federal government should be able to engage in invidious race discrimination.27 Since then, doctrine has developed on the assumption that equal protection norms apply as much to the federal as to state and local governments.28 In the face of great and entrenched bodies of nonoriginalist precedent, originalists cannot present their theory as an account of actual Supreme Court practice. Rather, they characteristically claim to offer a theory only about the Supreme Court’s appropriate role, or about how it ought to decide cases.29 Originalism, in other words, appears to be more nearly a normative than a descriptive theory—a theory not of what the Court does, but of what the Court ought to do. Yet just as originalism’s descriptive pretensions are embarrassed by entrenched, nonoriginalist precedent, so are its prescriptive ambitions. Very few originalists take the bold position that all nonoriginalist decisions and doctrines should be overturned. Most originalists, like most constitutional theorists, assume that the judicial role in our constitutional order is grounded in an ideal of the rule of law, which requires reasonable stability of legal rules, and especially of rules that have given rise to settled expectations.30 More characteristically, originalists thus say that there is a limited obligation of courts, including the Supreme Court, to adhere to established precedent.31 The question of when the Court should continue to enforce an “erroneous” precedent, and when instead it should correct past errors, is a difﬁcult one for originalists and nonoriginalists alike; I return to this problem in Chapters 4 and 6. Here the crucial point is that, for most originalists, the precept “follow the original understanding” is by no means a complete theory of how courts should decide constitutional cases. Rather, originalists characteristically accept that most settled precedents should remain undisturbed; they further acknowledge that cases clearly falling within established, nonoriginalist doctrines should generally be decided in accordance with those doctrines. What originalists really seem to mean is something more like this: the Supreme Court should not set out on new, nonoriginalist paths.

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Most originalists appear to regard their acceptance of nonoriginalist precedent as a minor matter, introduced as a concession to practical necessity after they have staked out their claims of principle.32 But if nonoriginalist precedent is “law,” appropriately enforced by the Supreme Court and even binding on it, then central premises of originalism simply cannot be true. Or so, at any rate, I attempt to show.

Originalism, “Positivism,” and the Foundations of Law If we press the question why all Supreme Court decision making (except that coming within a grudging exception for entrenched precedent) should reﬂect the original understanding of relevant constitutional language, prominent originalists’ characteristic frontline response is to deny that this is a genuine question within the law.33 There is, they acknowledge, a moral question about whether the law should be obeyed. But originalists maintain that there is no room within the law for an argument about whether it would be desirable for us to be governed by norms different from those established by the Constitution. According to originalists, everyone recognizes that the Constitution of the United States is the supreme law, binding on all governmental ofﬁcials, including the courts.34 In confronting interpretive questions, we must therefore begin with the Constitution itself. Looking there, we quickly discover that the Constitution sets out to establish law that binds courts as well as other governmental ofﬁcials.35 And, originalists maintain, law requires both public notice and constancy of meaning36—requirements that they say can be met only if we equate the Constitution’s meaning with what it was originally and publicly understood to mean.37 However plausible it may appear on the surface, this argument begs the central questions in issue. One set of questions involves what “the Constitution” is. For example, some scholars have suggested that judicial precedent becomes part of “the Constitution” in some meaningful sense.38 This is by no means an absurd suggestion. As I have suggested already, leading originalists themselves accept that nonoriginalist precedent should sometimes prevail over the original understanding of constitutional language. Yet if “the Constitution” alone should be determinative, it is not obvious how precedent could displace constitutional meaning unless precedent itself enjoys constitutional status.39 Another set of questions involves the relationship between the Constitution, as a text to be interpreted, and norms of constitutional interpretation. Even if we accept that it is exclusively the written

18

Implementing the Constitution

Constitution that the Court should interpret or implement, it does not necessarily follow that interpretive norms should be based solely on the Constitution’s text, heedless of the way that courts have interpreted the Constitution over time. To determine what needs to be interpreted is one thing; to identify applicable norms of interpretation may be something else. In maintaining otherwise, originalists appear to assume that if we are bound by the Constitution at all, we must be bound in the way that the framers and ratiﬁers wanted, intended, or understood us to be bound.40 This assumption ﬁts naturally with, and indeed is supported by, a traditional strain of legal “positivism”—a general legal theory asserting that questions of law are a species of questions of fact—that equates law with the “commands” of a sovereign, such as the framers and ratiﬁers.41 If the Constitution necessarily derived its status as ultimate law from the commands of a sovereign lawgiver, then no other norms, including interpretive norms, could attain the status of ultimate law unless they, too, traced to the same source of sovereign authority. There are at least two problems with this argument. First, as a historical matter, it is far from clear that the framers and ratiﬁers understood the Constitution as commanding adherence to originalist interpretive norms.42 Clearly the founding generation eschewed reliance on any notion of the framers’ or legislature’s subjective “intent.”43 Within their conceptual framework, the meaning or “intent” of a document was independent of any psychological state or disposition of its authors. It is also not obvious that the framing generation understood the meaning of the Constitution’s general language as necessarily ﬁxed by contemporaneous applications, rather than by more ultimate conceptions of how “the freedom of speech,” for example, would best be deﬁned in light of unfolding experience.44 A second problem is more fundamental. Even if the framers and ratiﬁers actually did intend to command adherence to originalist interpretive norms, the equation of law with the commands of a sovereign is simply untenable.45 As more modern legal positivists have recognized, the foundations of law do not lie in sovereign commands but in social practices involving the acceptance of authority.46 Somewhat more concretely, the legal status of the Constitution does not depend on the “command” of the framers or ratiﬁers that we, the people of today, act in accordance with its dictates. Taken in abstraction, the commands of the framers and ratiﬁers would exert no more hold on us than the dictates of King George or the British Parliament. Rather, the status of the Constitution as law depends on what leading modern positivists

Originalism

19

have characterized as contemporary “rules” or “practices” accepting it as such.47 We need law, and as explained in Chapter 7 we have very good reason to support a reasonably just and effective legal system, such as that now prevailing within the United States. To determine what the law permits or requires within that legal system, however, we must again turn to contemporary practices of recognition or acceptance. Once it is recognized that the Constitution’s status as law depends on practices of acceptance, the claim that the written Constitution (as originally understood) is the only valid source of norms of constitutional interpretation loses all pretense of self-evident validity.48 As I have emphasized already, prominent originalists candidly admit that much of contemporary constitutional law could not be explained or justiﬁed on originalist principles.49 Important lines of precedent diverge from original understandings;50 judges frequently take other considerations into account;51 and the public widely accepts the courts’ nonoriginalist pronouncements as legitimate52— not merely as ﬁnal, but as properly rendered.53 In short, if legal and constitutional validity depend on patterns of acceptance, those same patterns confer validity on at least some nonoriginalist norms, as even originalists implicitly concede in their embrace of nonoriginalist precedent. In urging that existing judicial practices should be altered, originalists thus are not pure positivists, who can claim that their position reﬂects what the law of the United States simply is or has to be in order for there to be law at all. Rather, originalists, like other participants in constitutional debates, carry a burden of normative justiﬁcation. They must attempt to establish that the constitutional regime would be a better one if originalist interpretive precepts were consistently followed. Indeed, as I argue below, many originalists implicitly acknowledge as much; like proponents of other theories, originalists commonly appeal to values associated with the rule of law, political democracy, and individual rights to defend their approach.

The Normative Case for Originalism When attempting a normative defense of originalist principles, prominent originalists characteristically begin by appealing to an ideal of the rule of law. Judge Robert Bork and Supreme Court Justice Antonin Scalia, perhaps the two most prominent contemporary originalists, are representative in this regard. Both maintain that only an originalist methodology can ensure the ﬁxity of legal meaning, the predictability of results, and the constraint on

20

Implementing the Constitution

judges that the rule of law requires.54 Each suggests that it is incompatible with the rule of law for judges to decide cases based on their own moral views, as they contend that judges will inevitably do unless they are bound by the historically understood meaning of the constitutional text.55 Originalist constraints are also needed, originalists such as Bork and Scalia maintain, to protect political democracy. Within a broad compass, they argue, political majorities should be able to determine public policy without being frustrated by judicial decisions that reﬂect the judges’ moral values.56 Finally, originalists—at least when pressed—typically argue that an originalist interpretive approach will help ensure effective protection of a reasonably just scheme of individual rights. Judge Bork, for example, talks recurrently about the balance that the Constitution strikes between the rights of the majority and the rights of minorities against the political majority.57 Although some of his claims could be understood as purely descriptive, he implies that the historically established balance reﬂects at least a sound approximation of substantive justice.58 According to Bork, “[t]he attempt to deﬁne individual liberties by abstract moral philosophy,” rather than by the original understanding, “is actually likely to make [those liberties] more vulnerable.”59 He describes this prospect as “terrifying.”60 Justice Scalia implicitly relies on a similar premise when he argues that an originalist methodology—which promises ﬁrm legal rules to steel judges against the temptation to decide cases in line with the prevailing sentiment of any particular era—may be necessary to ensure the effective protection of substantive rights.61 Why should we care about the effective enforcement of the Constitution to thwart political majorities, unless because the legal rights created by the Constitution are morally deserving of protection? However alluring on the surface, the normative defense of originalism cannot withstand close scrutiny. Contrary to originalists’ protestations, a sensible ideal of the rule of law does not require that judges’ decisions be determined in every case by ﬁxed, historical meanings. To cite just the most obvious example, common law judges have historically decided cases based entirely on judicial precedent, as interpreted in light of traditional principles of legal reasoning. It is often thought that the genius of the common law system lies in its adaptability.62 Yet common law decision making is almost universally seen as compatible with the rule of law.63 Indeed, common law systems are often held up as rule-of-law paragons. Nor is it quite possible to believe that even originalists can maintain a consistent position that the rule of law requires originalist adjudication. As I have emphasized already, most originalists accept the authority of nonoriginalist precedent.

Originalism

21

The originalists’ argument from democracy is more difﬁcult to assess. Too much freewheeling judicial invalidation of legislative decisions would undoubtedly be incompatible with democratic ideals. Signiﬁcantly, however, most constitutional adjudication presents no direct clash between courts and democratically accountable legislatures. In the overwhelming preponderance of constitutional cases, courts stand in review of actions by low-level ofﬁcials, such as police on the beat, and decisions of administrative bodies.64 Although administrative ofﬁcials in principle are subject to political control, case-by-case oversight is not something that legislatures are equipped to do well; there is little reason to believe that majorities either approve individual administrative actions or would not want judicial review. As Louis Jaffe argued, judicial review is a “necessary precondition, psychologically if not logically, of a system of administrative power which purports to be legitimate.”65 Even in cases in which courts sit in review of legislative judgments, arguments from democracy are complex. For one thing, originalist theory itself prescribes that judges should invalidate at least some legislation that is supported by political majorities—namely, legislation that is incompatible with the original understanding. For another thing, a number of important nonoriginalist Supreme Court decisions have actually helped to promote political democracy. Prior to the so-called one person, one vote decisions, political minorities enjoyed vastly disproportionate representation in the legislatures of many states.66 As a result of Supreme Court intervention, the political process is fairer, and presumably more responsive to majority sentiment, than before. Similarly, nonoriginalist First Amendment decisions have helped ensure the free ﬂow of information and ideas on which political democracy depends.67 Such decisions may be especially important at the local level, where authorities have often attempted to frustrate political protest by political and other minorities.68 Critics often charge that judicial review saps energy from the political process, and thereby undermines political democracy, by locating ultimate responsibility in the courts.69 As an empirical matter, however, there is a good deal of room for give and take between courts and legislatures.70 The Supreme Court’s ﬁrst pronouncement on an issue need not be its last; a persistent legislature can almost always provoke a judicial reconsideration, even if not always a change of view. In addition, it is at least arguable that nonoriginalist decision making by the Supreme Court has, in the long run, actually done more to abet than to retard legislatures in implementing democratically approved innovations. As Charles Black emphasizes, throughout

22

Implementing the Constitution

much of constitutional history the Supreme Court has played a vital role in “validating” the adaptation of governmental structures to the felt needs of changing times.71 Pervasive federal regulation of the economy, “independent” federal agencies such as the Federal Reserve Board, and a broad array of health and welfare programs all probably lie beyond the powers of the federal government as originally understood.72 But the Supreme Court has not only upheld such developments, all of which arose from democratic initiatives; it has also conferred upon them an imprimatur of constitutional legitimacy that they might otherwise have lacked. Finally, there is the goal of ensuring an acceptable scheme of individual rights. With respect to this aim, the Supreme Court’s historical performance has undoubtedly been uneven. Nonetheless, many of the rights that most Americans today hold most sacred would be hard if not impossible to justify in originalist terms. These include speech rights under the First Amendment, the right to school desegregation, various rights to freedom from discrimination, many now-accepted voting rights, and more. It is impossible to know what would have happened in the absence of judicial review. Conceivably, reformist energy would have gravitated to politics, not litigation, and similar or even better results would have ensued. Signiﬁcantly, however, a narrowly originalist conception of federal powers would have made innovation through federal legislation difﬁcult if not impossible in many cases, and amending the Constitution requires the concurrence of enormous supermajorities—two-thirds of both houses of Congress and threefourths of the states. In the sweep of history, it is at least highly doubtful that resolutely originalist adjudication would have produced a better regime of rights than we now have. It is true, of course, that currently established rights would not necessarily be threatened by originalist judges or Justices. As I have noted, most originalists do not claim that the Supreme Court should banish all nonoriginalist doctrines. In light of originalists’ acceptance of established, nonoriginalist precedent, I can imagine—though I have never heard—an argument for originalism asserting that we already have all the nonoriginalist doctrine that we ought to have. Whatever may have been the justiﬁcations for departures from the original understanding in the past, further adaptations in the structure of government are unlikely to be necessary or desirable; Americans already enjoy all the constitutional rights (including those needed to protect democracy itself) that a liberal democracy reasonably requires. As a result, the argument might continue, there is little if any remaining good

Originalism

23

that nonoriginalist decision making might do. At the same time, there is a risk that the Supreme Court, if not bound by the original understanding, will abuse its powers and simply impose its own values on the public under the guise of constitutional law. Thus, the argument might conclude, sound tactical considerations support the originalists’ real, rather than their rhetorical, position—not that nonoriginalist doctrines should be overthrown, but that the Supreme Court should eschew further, nonoriginalist innovation. This argument fails on at least two grounds. First, the most striking feature of unfolding history is its unpredictability. If any assumption is warranted, it is that the future—like the past—will generate unforeseen problems and opportunities and will bring changes in political, moral, and economic perspective. If nonoriginalist adjudication was desirable to deal with challenges presented in the past, it is likely to be equally necessary or appropriate in the future. Originalists may of course contend that there was no adequate justiﬁcation for past nonoriginalist decisions. My point is only that we should not assume that we have entered some ultimate historical stage in which there will be no fresh demands, no new insights, and no further need for adaptation in constitutional law. Second, the originalist prescription of “thus far and no further” with respect to nonoriginalist doctrine would be extremely difﬁcult to implement in a predictable, principled way. Suppose, for example, that this prescription were to be applied to First Amendment doctrine; and suppose, further, that the First Amendment was originally understood only to bar schemes of prior restraint that required authors and publishers to obtain approval before disseminating their works and possibly to forbid prosecutions for criticizing governmental ofﬁcials.73 How would the Internet and other new technologies be treated? Should doctrinally established (but nonoriginalist) free speech principles be applied, or should new technologies be governed by the original understanding? Presumably, some sort of jurisprudence would have to be developed to distinguish permissible applications from impermissible expansions of existing precedents, but the grounds for such distinctions—if different from those already used to identify the reach or meaning of precedents—would generate a swirl of complexities. Perhaps the rule should be that any First Amendment case that could fairly be classed as one of “ﬁrst impression” should be resolved against the claim of constitutional right. As I said, however, I have never seen any originalist urge this approach—at least not with respect to the First Amendment.74 The failure of originalists actually to adopt this position may rest on a view that I share: when existing

24

Implementing the Constitution

doctrine reﬂects sound principles that are well grounded in the constitutional text (even if not in the original understanding), it would be unacceptable to draw lines between cases that admittedly come under the same principle, but differ along some other dimension, such as factual proximity to a controlling precedent.

Lessons to Be Drawn In critiquing the originalist account of the Supreme Court’s proper role, I do not mean to overstate my case. Original understandings often do and should furnish important guidance in constitutional adjudication. To understand the constitutional text, we frequently need to know something about the purposes and understandings of those who wrote and ratiﬁed it. Beyond bare elucidation, historical understandings will often prove a genuine source of wisdom concerning what is fair, prudent, or otherwise normatively desirable.75 The central elements of the Constitution emerged from intensive trials and sustained, focused deliberation by enlightened statespersons and an aroused citizenry. Finally, especially in the recent aftermath of a constitutional amendment, respect for political democracy strongly counsels judicial adherence to original purposes and understandings.76 Nonetheless, originalism does not fully describe (or really pretend fully to describe) the role that the Supreme Court plays in our constitutional regime. Nor does originalism state a workable ideal for a polity with an aged constitution and a robust tradition of nonoriginalist judicial review that has produced a large body of nonoriginalist precedents. A general lesson can be learned here. Like legal theories generally, constitutional theories resist classiﬁcation according to the division, familiar in the social sciences and humanities, between “positive” or descriptive theories on the one hand and “normative” or prescriptive theories on the other.77 Few if any constitutional theories are purely normative.78 Most if not all claim to “ﬁt” or explain what they take to be the most fundamental features of the constitutional order.79 But few constitutional theories are purely descriptive either.80 Most also include prescriptions for reform.81 These prescriptions aim to bring constitutional practice more fully into accord with what the various theories, in their descriptive aspects, identify as the deepest, fundamental values of the constitutional order. Originalism aims to reﬂect the fundamental values of the constitutional order by ﬁtting the written Constitution. But a constitutional theory cannot

Originalism

25

offer useful guidance unless it ﬁts current constitutional practice, as well as the written Constitution, at least reasonably well. Interestingly, originalists creep to the verge of recognizing the signiﬁcance of constitutional practice when they acknowledge that at least some nonoriginalist precedent must be regarded as binding constitutional law, largely because it is so widely accepted as such. But originalists do not follow through on their insight. They remain captivated by an image of constitutional and judicial legitimacy, rooted in the commands of the framers and ratiﬁers, that is too out of touch with contemporary law and practice to serve as a sensible ideal.

CHAPTER

2 The Supreme Court as the Forum of Principle

Ronald Dworkin has characterized the Supreme Court as “the forum of principle.”1 Behind this and similar descriptions lies a set of interrelated ideas that, nearly as much as originalism, tends to transﬁx thought about the Court’s role. The central animating notion is that the Constitution reﬂects a national commitment to live by principle and that the speciﬁcation of constitutional principles is a relentlessly philosophical enterprise. Within this vision, the Court’s task is to ﬁnd the truth about what guarantees such as “freedom of speech” and “equal protection” mean. For a judge or Justice who believes that she has found the truth, there is no need for tactics, and compromise can have no place. Principle is all. Although Dworkin’s ideal theory is deeply illuminating, its enlightening power is only partial. The Court must craft doctrine as well as specify constitutional meaning through interpretation. To do so, the Justices must engage in empirical calculations and make tactical judgments that are informed, but not determined, by constitutional principles. For a variety of reasons, the Justices must also accept compromises.

Interpretation and the Search for Truth In contrast with originalism, which purports to equate constitutional meaning with the fact of historical understanding, Dworkin’s theory is pervasively “interpretive.”2 For him, among the most striking points about constitutional law is that no rulebook tells judges how to read the Constitution. To learn what counts as good, sound, or permissible, a judge or lawyer must look to the “practice” of constitutional law, its implicit standards, and its constitutive understandings. And within a practice-based framework, Dworkin asserts, a judge or lawyer must engage in interpretation at every turn—including interpretation of what goes on in constitutional prac26

The Supreme Court as the Forum of Principle

27

tice itself.3 As portrayed by Dworkin, interpretation is a pervasively “creative,”4 philosophical, moralized,5 and “protestant”6 activity; the task of the interpreter is to account for the central features of the text or practice being interpreted, but to do so in the way that casts the text or practice in the best moral light.7 Viewing American legal practice through his interpretive lens, Dworkin’s theory begins with a widely shared and appealing claim about the fundamentality of rights. Under our Constitution, people have rights, which it is the obligation of courts to enforce.8 According to Dworkin, courts cannot evade their obligation to enforce rights on the ground that enforcement would be imprudent, inconvenient, or otherwise contrary to the public interest. To the idea of the fundamentality of rights, Dworkin conjoins the notion that ours is a Constitution of principle, the full meaning of which cannot be derived directly from the intent of the framers or even from a narrow parsing of the text.9 Mocking the idea of a “constitution of detail,”10 to be applied on the model of a tax code,11 Dworkin argues for an understanding of constitutional rights as the reﬂections or entailments of constitutional principles. Principles, in the relevant sense, are general moral directives, the true meaning of which can be identiﬁed only by a process of interpretation and philosophical inquiry.12 Dworkin illustrates this point with the example of a parent’s instruction to his children “not to treat others unfairly.”13 This injunction, he argues, does not mean “Do not treat others in ways that I regard as unfair.” Instead, it means “Do not treat others in ways that really are unfair,” and thus calls upon the children to engage in moral reﬂection for themselves. So it is, Dworkin says, with constitutional guarantees such as free speech and equal protection.14 As a further aspect of his view that ours is a constitution of principle, Dworkin maintains that a principle need not be literally stated in the written Constitution in order to be a constitutional principle.15 Rather, a principle counts as a constitutional principle if it would appear in the philosophically best explanation of the written Constitution and of surrounding practice and judicial precedent.16 Once again, an example may clarify the point. Nowhere does the Constitution refer speciﬁcally to a right of married couples to use contraceptives, as recognized by the Supreme Court in Griswold v. Connecticut.17 Nonetheless, the best explanatory account of why the Constitution expressly confers certain other rights would include principles broad enough to encompass this speciﬁc liberty.18 If one phrase could capture the essence of Dworkin’s theory, it might be

28

Implementing the Constitution

the ideal of principled consistency or, to use his preferred term, “integrity”19 in the interpretation and application of constitutional law. The people want to live by moral principle, but their aspiration requires the work of judges with the skill, leisure, and detachment to identify the principles that best explain our constitutional institutions—including judicial precedent—and to apply those principles on the people’s behalf. As thus conceived by Dworkin, the role of a Supreme Court Justice is very like that of a scholar, preferably a scholar of moral philosophy, whose mission is to discover the truth both about the theory that best explains our institutions and about the rights that people have. To model his ideal of the judicial role, Dworkin asks us to imagine a judge or Justice Hercules, who successfully subsumes the entire body of law (including past cases decided by courts) under a single, elegant explanatory theory.20 Signiﬁcantly, Hercules works alone. Hercules makes no compromises. Hercules permits no gaps to open between the rights that people should have as a matter of constitutional principle and the rights that he will enforce. To countenance compromises or failures to enforce rights that are supported by constitutional principles would be to fail to take rights seriously.

Testing the Theory against Practice Although Dworkin’s theory purports to be practice-based, its account of the judicial role does not ﬁt our actual practice very well, nor, more importantly, does it establish sensible ideals against which the Supreme Court’s performance might be measured. The Court is indeed a forum in which issues of principle are properly raised and resolved. But to establish standards for the Court, we need a richer picture of the practical functions that we rely on the Court to perform. When the full range of the Court’s responsibilities is considered, it will become clear that some of Dworkin’s suggestions about the absolute priority of rights and principles must be modiﬁed, if not abandoned. Contrary to the impression conveyed by Dworkin, much of the Court’s work is concerned not so much with furnishing the best “moral reading” of constitutional language,21 with a preference for “stating . . . constitutional principles at the most general possible level,”22 as it is with the development of legal tests and doctrines that will work in practice—frequently at very low levels of generality—to protect constitutional values. In order to craft good doctrine, the ideal Supreme Court Justice would indeed be adept at philoso-

The Supreme Court as the Forum of Principle

29

phy, but she would also know a very good deal about economics, about the dynamics of various social institutions, and about human psychology.23 The doctrines imposing First Amendment restrictions on state libel law illustrate the kinds of practical considerations to which the Court must respond if it is to implement the Constitution successfully.24 In New York Times v. Sullivan25 and Gertz v. Robert Welch, Inc.,26 the Court confronted the question of what First Amendment protections, if any, should be accorded to libelous speech—false statements that cause harm to reputation. As a matter of what might perspicuously be called “interpretation,” the Court ﬁrst identiﬁed the values that the First Amendment reﬂects. In New York Times v. Sullivan, the Court emphasized the promotion of robust debate about political issues;27 in Gertz, the Court spoke more generally of a constitutional commitment to maintaining an open marketplace of ideas.28 Also as a matter of interpretation, the Court determined that false statements of fact possess no independent constitutional value.29 Such statements are themselves worthless or worse in political debates, and they contribute nothing of value to the marketplace of ideas. But these interpretive judgments did not, and could not, ultimately resolve the questions before the Court. As the Court recognized, mistakes are “inevitable in free debate,”30 and a rule making the media liable for all false and defamatory utterances would have a predictable effect of chilling critical commentary. Fearful for being sued for damages, the press would be less likely to print critical statements, in which case speech that possesses First Amendment value would be lost. The Court therefore set out to formulate doctrine that would ensure “breathing space” for First Amendment freedoms.31 To carry out this mission, it was not enough for the Court to weigh, in abstract or philosophical fashion, the First Amendment principle calling for protection of speech against the states’ interest in protecting reputations. The Court had to make more concrete, empirical, and predictive assessments.32 How much self-censorship would the press engage in under alternative liability regimes? To the extent that threats of liability deterred the press from reporting stories that it otherwise would have reported, how much of the lost speech would likely be truthful and how much untruthful? How should the harms to reputation caused by false speech, to the extent that false speech was afforded constitutional protection, be weighed against the beneﬁts of truthful speech that would be forgone under various, imaginable rules? What kinds of liability rules might be needed in practice to correct for predictable failures in the marketplace of ideas?

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Implementing the Constitution

In response to concerns such as these, the Court issued a rule under which public ofﬁcials, candidates for public ofﬁce, and so-called public ﬁgures cannot recover for defamation unless the defendant utters a false statement “with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard for whether it was false or not.”33 To my mind, this rule is a sound one, but not one that is most illuminatingly viewed as expressing the “meaning” of the First Amendment. As the Court recognized explicitly, there is no constitutional value in false statements of fact. Nor do I think that the process by which the Court arrived at the “actual malice” test would best be characterized as one of “interpretation” alone—though I recognize that someone could intelligibly develop a conception of interpretation that is somewhat broader than my own. What is crucial is that Sullivan and Gertz reveal the Court in the distinctly practical role of constructing doctrine based largely on empirical, economic, and strategic considerations. In light of the role that these considerations play, I would contend that the resulting doctrine is most aptly described as designed to protect, but not as precisely mirroring, constitutional values. In contrast with this account, Dworkin’s discussion of Sullivan and Gertz in his book Freedom’s Law frames the problem before the Court as requiring few if any instrumental calculations.34 In his view, the decisions should have rested ﬁrmly on the noninstrumental principle that a “just political society” must treat its citizens as “responsible moral agents” and that the government breaches this duty whenever it punishes speech on the hypothesis that citizens “cannot be trusted to hear opinions that might persuade them to dangerous or offensive convictions.”35 In light of this principle, Dworkin concludes that the Court should extend Sullivan’s “actual malice” rule even to libels of private ﬁgures. But bare principle could scarcely do the work that Dworkin assigns it. Sullivan did not involve dangerous “opinions” but admittedly false statements of fact; and it is far from obvious that the government insults people’s moral agency when it bars or sanctions false assertions of purported fact (including, for example, false claims by sellers of commercial wares about the risks or beneﬁts of their products). There are, to be sure, grave risks in allowing the government to determine which speech is true and which is false. A further risk is that the threat of libel actions will “chill” both some statements that lie close to the border between fact and opinion and some true statements of fact. But with considerations such as these we have left the

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31

domain of the pure philosophy and begun a set of calculations that Dworkin derides as “instrumental” and, quite misleadingly, purports to ﬁnd unnecessary.36 The instrumental calculations required in Sullivan and Gertz are by no means atypical. Nearly all Supreme Court decisions establishing doctrinal rules or tests rest on a complex set of empirical and predictive assessments.37 These commonly include judgments or assumptions about how people behave, about how behavior would be affected by the promulgation of alternative rules establishing duties and liabilities, and about which of the possible results should be deemed best or least costly in light of constitutional and other values.38 Recognizing that the Court must engage in empirical and strategic calculations in order to craft doctrine does not necessarily threaten the central claims of the forum-of-principle theory. Dworkin could easily amend his account to treat the task of enforcing constitutional values through doctrine as a secondary judicial function, complementing the more primary and important responsibility of identifying applicable principles. According to this model, the Court would ﬁrst identify constitutional meaning (or principles) through a process that is necessarily responsive to the circumstances of application and then attempt to ensure that the meaning is realized in practice to the fullest extent possible. For better or for worse, however, our constitutional practice belies this suggestion. As Lawrence Sager has long argued, some doctrines—for practical, prudential, and other reasons—deliberately fail to enforce underlying constitutional norms to “their full conceptual limits.”39 Perhaps the plainest example comes from the law of constitutional remedies. When a governmental ofﬁcial violates constitutional rights—for example, by conducting an unreasonable search or seizure in contravention of the Fourth Amendment—the only recourse available to the victim may be to sue for damages.40 (Damages will typically be the only effective remedy if the victim is innocent of any crime and thus cannot beneﬁt from the so-called exclusionary rule, under which the fruits of an unlawful search would held be inadmissible in a criminal trial.) Nonetheless, the Supreme Court has held that governmental ofﬁcials generally are “immune” from damages liability, even if their victims are denied a remedy as a result, unless the ofﬁcials violated “clearly established . . . rights of which a reasonable person would have known.”41 The result is a transparent gap between rights and remedies. For violations of con-

32

Implementing the Constitution

stitutional rights that were not “clearly established,” the law may provide no redress. The remedial gap is justiﬁed, the Court has held, by considerations of public policy. If threatened with liability even for “good faith” mistakes, governmental ofﬁcials might be chilled in the performance of their duties, and many able citizens would refuse to accept public ofﬁce.42 Doctrines deﬁning substantive rights often reﬂect similar concerns. This becomes clear, as I stressed in the Introduction, if we remember that primary responsibility for upholding constitutional norms typically rests with nonjudicial ofﬁcials. Against this background, judicial tests are sometimes better viewed as deﬁning “standards of review,” indicating the threshold necessary for a court to ﬁnd a constitutional violation, than as measures of underlying constitutional rights and responsibilities. A plain example, discussed in the Introduction, comes from the “some evidence” test that is used in certain cases brought under the Due Process Clause.43 Where this test applies, courts will reject challenges to administrative action, no matter how arbitrary or erroneous, as long as there is “some evidence” to support them. As a standard of review, the “some evidence” test is understandable. The Court does not wish to encourage judicial challenges to the fairness of individual, factspeciﬁc decisions such as those made by prison administrators in enforcing prison rules; it generally trusts frontline decision makers to implement the Constitution fairly. By contrast, the “some evidence” test could scarcely deﬁne the “meaning” of the due process guarantee. An ofﬁcial would not do her constitutional duty if she failed to apply law to fact in a genuinely fair and impartial way, even if there were “some evidence” tending to support an otherwise arbitrary or even malicious decision. Professor Sager has offered a more broadly applicable example of judicially “underenforced” constitutional norms, involving the Equal Protection Clause of the Fourteenth Amendment.44 In cases that do not involve a socalled suspect classiﬁcation, such as one based on race or gender, courts employ a “rational basis” test, which requires them to uphold any classiﬁcation that is rationally related to any actual or hypothesized state interest.45 According to Sager, the Equal Protection Clause expresses the principle that “[a] state may treat persons differently only when it is fair to do so.”46 If Sager is correct that this is the underlying constitutional norm, then the rational basis test falls dramatically short of reﬂecting the Constitution’s full meaning. To see the shortfall, it will again help to focus, not on what a court will en-

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33

force, but on the duties of nonjudicial ofﬁcials to implement constitutional norms. Imagine that a legislature enacts a statute that advantages optometrists and disadvantages opticians,47 and that the legislature in fact does so for the purpose of rewarding political contributions by optometrists to the majority political party. Under the rational basis test, the statute would probably be upheld; there is almost surely an imaginable basis on which the legislature might legitimately have enacted the statute, even though we are assuming that it actually acted for another, wholly self-interested reason. But while the hypothetical statute would likely pass judicial muster, it could not fairly be said that a legislator would be faithful to her constitutional obligation to afford “the equal protection of the laws” to all citizens if she voted to disadvantage opticians simply for the purpose of beneﬁting the optometrists who had contributed to her campaign.48 Rather, the best description of the situation would recognize a gap between constitutional meaning and judicially enforceable rights. The Court has determined, largely for institutional reasons, that it would invite excessive litigation and overtax the judicial competence for courts to make independent, case-by-case assessments of the fairness of statutory classiﬁcations.49 In light of this judgment, the applicable doctrine prescribes broad judicial deference to legislative decisions, even when the Court, if it permitted itself to make the inquiry, would conclude that the legislature had acted unfairly and thus violated the underlying constitutional norm of fair treatment. Once again, recognizing that the Court sometimes underenforces constitutional norms does not require rejection of Dworkin’s claims that the Court is a forum of principle that is obliged to take rights seriously. As Dworkin himself has sometimes emphasized, rights and principles such as those reﬂected in the Equal Protection Clause do not necessarily possess unlimited “weight”;50 the Court must sometimes recognize the signiﬁcance of competing “principles,” including separation-of-powers principles that call for judicial deference to legislative and executive judgments, in identifying judicially enforceable, “concrete” rights.51 Nonetheless, Dworkin’s theory remains at an important remove from what actually occurs in constitutional practice. His continuing depiction of constitutional adjudication as a pervasive contest of principles does not adequately reﬂect the role of the empirical, the contingent, the predictive, and the tactical. It is not enough for courts to identify constitutional values and weigh those abstract values against each other. As Gertz and Sullivan illustrate, courts must also ask what

34

Implementing the Constitution

the main threats to constitutional values are at any particular time, which rules would work more or less effectively to protect those values, and what the empirical effects of alternative rule structures would be.

The Obscuring of Reasonable Disagreement There is a further, more general sense in which Dworkin’s forum-of-principle model misconceives our constitutional practice and, in consequence, establishes false and unworkable ideals. The difﬁculty lies in Dworkin’s ideal judge, Hercules. Hercules is singular, all-knowing, and capable of discerning the “one right answer”52 to every legal and moral problem. When his interpretive labors yield that one right answer, Hercules must act on it. The model of Hercules is misleading in several respects. First, whereas Hercules is singular, the Supreme Court is a collegial institution,53 with collective responsibilities. As an institution, the Court is charged with producing a reasonably coherent, stable, and workable body of constitutional law. To satisfy this obligation, the Justices must labor for consensus, or at least for enough consensus to produce “opinions of the Court” in most cases. It should not be assumed that consensus can come without mutual accommodation. As I have emphasized, constitutional law is rife with reasonable disagreements. Some involve ultimate issues of constitutional meaning. Others concern the best or most appropriate design of implementing doctrines. Complicating the problem, the division of views may not always be binary— either about how the meaning of a constitutional provision would best be speciﬁed, or about the most appropriate doctrinal test to enforce it.54 These circumstances create legitimate institutional pressures for the Justices to compromise. I do not mean to suggest that every Justice is obliged to accept every “reasonable” compromise that might be offered. Constitutional judgments should always occur in light of, and indeed should reﬂect, ultimate ideals. Rather, my suggestion is that a Justice, in considering whether to join a majority opinion that he or she thinks less than optimal, or whether instead to concur separately or to dissent, should evaluate these alternatives partly in terms of their effects on the quality of the Court’s collective product.55 The phenomenon of reasonable disagreement, which necessitates compromises among the Justices themselves, signals a further dimension along which the model of Hercules generates a false, impractical ideal. In the person of Hercules, reasonable disagreement disappears. There is one right an-

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35

swer, and Hercules not only can discover it but also can present the arguments that demonstrate its correctness. When we engage in legal and moral argument, we may necessarily accept the premise that the debated questions have one right answer.56 But I also take it as a basic fact of social life in liberal democracies that there frequently will be reasonable disagreement about what the one right answer is.57 Our tools of moral reasoning are often contestable and imprecise. In the face of reasonable disagreements about what the Constitution means or how it would best be implemented, the Supreme Court—as I have suggested already and discuss at length in Chapter 5—familiarly accords deference to the judgments of other, politically accountable institutions about whether particular actions are necessary, proper, or acceptable in light of constitutional norms. This deference does not occur universally, nor should it. But it is especially appropriate when the Justices are unusually doubtful about what otherwise would be their own best judgment, when they reasonably anticipate that a particular ruling would encounter broad and deep resistance, and when the position undergirding that anticipated resistance is not itself unreasonable. Deference is also defensible in cases in which a more assertive judicial stance would invite widespread litigation with relatively little expected increase in overall substantive justice. Judicial deference takes various forms. Sometimes the Court says that it gives a presumption of constitutionality to challenged legislation.58 Other times the Court propounds doctrinal tests that fail to enforce constitutional norms to what the Court, if it were to pronounce on the question directly, might well regard as their conceptual limits. In noting that the Supreme Court often treats reasonable disagreement as a ground for judicial deference, I do not mean to assume that the Court is always correct to do so. Nonetheless, the issues raised by reasonable disagreement merit thoughtful attention. In cases of truly reasonable disagreement, when, if ever, should the Supreme Court’s judgment be preferred to that of more politically accountable decision makers? Does the Court’s exercise of authority to displace an admittedly reasonable political judgment reﬂect a fair allocation of political power? Hercules obscures questions such as these. Unlike Hercules, Supreme Court Justices do not possess omniscience or other superhuman abilities to gauge legal or moral truth. In specifying the role that would best or most appropriately be played by conspicuously fallible Justices, any thoughtful observer would want to reckon with the fact of reasonable disagreement and

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Implementing the Constitution

the question, in light of reasonable disagreement, of how far the Justices’ judgment should be privileged over the reasonable views of others. In sum, I do not deny that the Supreme Court is a forum of principle. But it is not a forum of principle in precisely the way that Dworkin suggests. There is room for accommodation and compromise in the speciﬁcation of constitutional rights, even though Dworkin is surely correct that a right, once concretely deﬁned, cannot be sacriﬁced in a particular case for reasons of sheer expediency. Moreover, although the Supreme Court is indeed a forum of principle, it is not only a forum of principle. The Court must perform a variety of distinctly practical, even tactical calculations in order to implement the Constitution effectively, especially under circumstances of uncertainty and reasonable disagreement.

CHAPTER

3 Constitutional Implementation

In criticizing originalism and the forum-of-principle approaches to understanding the Supreme Court’s role, I have suggested that normative theorizing should begin with a fuller picture of what the Court actually does and of what it is widely taken for granted that the Court should do. Among its defects, originalism cannot account adequately for the acceptance of nonoriginalist precedent as valid, binding constitutional law. A good theory of Supreme Court adjudication must come to terms with accepted practice. It must offer attractive, practicable speciﬁcations for how our existing constitutional regime might be improved without unacceptable costs. In comparison with originalism, Ronald Dworkin’s forum-of-principle account is not so much mistaken as incomplete and therefore misleading. The Court’s role is not exhausted by the speciﬁcation of constitutional principles. It is necessarily more practical and instrumental.

Implementation, Not Just Interpretation If we had to choose one word to characterize the proper role of the Supreme Court in constitutional adjudication, it should not be “interpretation” but “implementation.” Implementation is a function that is often, and sometimes necessarily, collective. No one, and no institution, could successfully implement the Constitution alone. Implementation is extended over time, and it requires collaboration. If we view the Court’s central role as implementing the Constitution, we can better understand why the Justices sometimes must compromise their own views about what would be best in order to achieve coherent, workable constitutional doctrine. We can also grasp why it might sometimes be appropriate for the Court to defer to other insti37

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Implementing the Constitution

tutions. As much as the Court itself, Congress, the president, and the states have a role in implementing the Constitution. In addition, “implementation” is a more aptly encompassing term than “interpretation,” capable of subsuming two conceptually distinctive functions: one of identifying constitutional norms and specifying their meaning and another of crafting doctrine or developing standards of review.1 In a few cases, this distinction may be sharp. I have twice alluded to the “some evidence” test, under which the Court will uphold certain decisions by administrative ofﬁcials against due process challenge, even if they are deliberately unfair, as long as there is “some evidence” to support them. In formulating this test, the Court has made a relatively transparent tactical decision not to enforce the fairness norm of the Due Process Clause to its full conceptual limit; the Court does not want the Due Process Clause to become a “font of tort law”2 that will invite federal litigation of myriad fact-speciﬁc cases unlikely to have broad impact.3 If such cases are to be litigated at all, the Court thinks it better that they should generally be brought in state court, raising claims based on state law.4 Admittedly, the “some evidence” test is an unusually stark example of a standard of review that is distinct from the constitutional norms it is crafted to enforce. I do not suggest that it is always easy to draw the line between a constitutional norm and its implementing doctrine, or even that it would typically make sense to try to do so.5 When, for example, the Court says that race-based discriminations are forbidden unless “necessary to serve a compelling government interest,”6 there may be no distinction between meaning and judicial test. I have maintained that the Court, in crafting doctrinal tests, frequently takes empirical and even tactical considerations into account; it must make assessments of individual psychology and institutional sociology, and frame rules that will work in practice to achieve their intended results at acceptable costs. This is an important point about the Court’s role, but not one that necessarily differentiates crafting doctrine from specifying norms in every case. The two aspects of the Court’s function may blend in another way as well. If doctrinal tests are framed to protect or implement constitutional norms, it might be thought that the Court’s reasoning would typically proceed in a two-stage sequence, with an inquiry into meaning coming ﬁrst, followed by a separate process in which a test is formulated. In fact, it often may happen that agreement on a doctrinal test comes ﬁrst and thus forestalls further inquiry into how, precisely, underlying constitutional norms would best be

Constitutional Implementation

39

speciﬁed. If, for example, the Court determines that the equal protection norm is adequately protected in most cases by a rational basis test, and that the legislation challenged in a particular case survives that test, the Court will have no occasion to specify what, exactly, the underlying norm of equal protection means or requires. In cases such as this, the distinction between the speciﬁcation of norms and the crafting of doctrine blurs at the shifting, permeable boundary between those two functions. On one side, doctrinal tests always reﬂect the meaning of constitutional norms, but do not always directly embody them. On the other side, constitutional norms must be speciﬁed to some extent for doctrinal tests to be created, but the process of speciﬁcation often need go no further than is minimally necessary for agreement on a doctrinal formula. Perhaps especially after it is acknowledged that the line between specifying the meaning of a constitutional norm and fashioning a doctrinal test is often fuzzy, the distinction may engender discomfort. The notion that there could be a gap between the meaning of constitutional norms and the tests governing their judicial enforcement cuts against the grain of traditional thinking. Since Marbury v. Madison proclaimed that “it is the duty of the judicial department to say what the law is,”7 we have tended to equate judicial pronouncements with constitutional meaning. Indeed, the Court itself occasionally appears to endorse this equation,8 possibly out of a sense that the legitimacy of its role somehow depends on a conceptual identity between constitutional mandates and judicial rulings. But this is a position that cannot be sustained, especially in a constitutional era dominated by multipart doctrinal tests; it is inconsistent with too much of what the Court does. In addition, a strict equation of judicial standards of review with constitutional meaning would reﬂect an excessively judicialized way of viewing the Constitution. As I have stressed, the primary responsibility for implementing the Constitution necessarily rests on other ofﬁcials and institutions. It is Congress that is charged to make no law abridging the freedom of speech; the states that are enjoined to afford due process and equal protection to all persons; and executive ofﬁcials who must desist from unreasonable searches and seizures. “Standards of review,” as they are sometimes called, frequently are and should be just that—not embodiments of the Court’s beliefs about how the Constitution would best be understood and applied by primary decision makers, but reﬂections of what the Court takes to be an appropriate judicial role in the shared project of constitutional implementation.

40

Implementing the Constitution

Within this shared project, the Court has a vital, distinctive function, which any enlightening theory of constitutional implementation should be at pains to emphasize. As I said in the Introduction, a core premise of our institutional scheme is that courts have a special capacity for addressing issues of constitutional principle. The Supreme Court, in particular, operates in a deliberative environment outside the hurly-burly of partisan politics. It can focus simultaneously on the concrete facts of a particular case, in which large abstractions become humanized, and on the relationship of statutes and decisions to presumably shared constitutional values. The Court is also in a uniquely good position to establish clear rules and tests that achieve a vital coordination function. Although the case is necessarily somewhat tenuous, we thus can reasonably hope that an institution such as the Court will produce better decisions of constitutional principle and better implementing rules than would other, less focused, less deliberative institutions. Even if the general case for relatively independent judicial review is persuasive, however, the Court frequently may have good, context-speciﬁc reasons not to enforce what would be the Justices’ best, personal understanding of the meaning and requirements of particular constitutional norms. For example, in some cases of reasonable disagreement, the Court may determine that it should not impose its own understanding of what a constitutional norm means or requires in preference to the reasonable judgment of others—especially if a contrary stance would invite extensive, costly, and unpredictable litigation, the ultimate beneﬁts would be small, and the degree of democratic resentment would be high. As I argue at length in Chapter 5, the “rational basis” test under the Equal Protection Clause embodies a determination of this kind. Or, in the face of uncertainty about whether it understands an institutional context, the Court may conclude that it would be imprudent not to defer to the judgments of others about what is appropriate under the circumstances. This, roughly, is what happens when the Court pronounces that it must give “deference” to the judgments of military authorities9 or prison ofﬁcials.10 The best understanding of its conclusion is not that the Constitution, within broad bounds, “means” whatever such ofﬁcials say that it means. Nor is it that constitutional guarantees have little meaning in some contexts. The Court’s judgment, rather, is that it is not well equipped to pronounce independently on what, precisely, the Constitution means or requires in certain environments and that it should, accordingly, apply a deferential standard of review. In cases such as this, deferential standards of

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41

review do not give conscientious ofﬁcials a license to behave as they choose. Rather, such standards share responsibility for specifying and implementing constitutional norms among courts and other ofﬁcials. Whereas judicial deference is appropriate in some situations, there may be other settings in which the Court reasonably concludes that ofﬁcials on the scene cannot be trusted to honor constitutional norms and, what is more, that the courts are not institutionally equipped to remedy resulting violations in the absence of a “prophylactic” rule. This, roughly, was the assessment that led the Court to lay down the so-called Miranda rule,11 discussed in the Introduction. Miranda is troubling to some, who see it as an example of judicial usurpation.12 As David Strauss has argued, however, the approach taken in Miranda should be no more troubling than that in New York Times v. Sullivan,13 discussed in Chapter 2, in which the Court laid down a rule protecting some false statements of fact that admittedly lack constitutional value in order to ensure that robust debate does not get “chilled.”14 In both cases, the Court’s aspiration was to ensure effective protection of constitutional values, and the only rules adequate to the task were ones that preclude some governmental action that would not inherently trench on constitutional values. As I said at the outset, I believe that the Court’s role in crafting doctrinal tests and especially standards of review is better captured by the term implementation than by the term interpretation. In particular, I ﬁnd it misleading to suggest that the Court’s function consists exclusively in the search for constitutional “meaning.” Again, however, the main thrust of my argument does not depend on semantics. My central claims involve the multifaceted and largely practical nature of the Supreme Court’s function within a shared project of constitutional implementation. These claims could be accepted even by someone whose conception of “interpretation” was broad enough to subsume the varied elements of what I call “implementation.”

Implementation and Doctrine If the Supreme Court’s function is conceptualized as involving constitutional implementation, the principal device through which the Court plays its role is “constitutional doctrine”15—a term that I use to embrace not only the holdings of cases, but also the analytical frameworks and tests that precedents establish.16 As I have emphasized already, doctrine reﬂects the Constitution’s meaning, but often is not uniquely determined by it. And, once in

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Implementing the Constitution

place, doctrine—as I shall explain—sometimes blocks direct appeal to underlying constitutional norms. The need for doctrine (and for a judicial role in implementing the Constitution) arises partly from uncertainty about which values the Constitution encompasses and about how protected values should be speciﬁed. For example, there are well-known disputes about whether the equality norm expressed in the Equal Protection Clause bars afﬁrmative action preferences17 and about whether the First Amendment encompasses a right to burn the ﬂag18 or disseminate obscenity.19 For the Constitution to function effectively as law, the Court must provide an authoritative resolution of disputes such as these. As I have suggested, however, the need for doctrine rests at least partly on another concern. Even when general agreement exists that the Constitution reﬂects a particular value or protective purpose, questions of implementation often remain.20 For example, it may be a purpose of the First Amendment to protect against governmental efforts to stiﬂe dissent21 or of the Commerce Clause to prevent “ ‘economic Balkanization’ and the retaliatory acts of other [s]tates that may follow.”22 But the norms reﬂecting purposes such as these are too vague to serve as rules of law; their effective implementation requires the crafting of doctrine by courts. The Supreme Court has responded accordingly. By no means illegitimately, it has developed a complex, increasingly code-like sprawl of two-, three-, and four-part tests.23 Critics have protested that the Court’s multipart tests are inappropriate because they do not plausibly reﬂect the Constitution’s true meaning.24 The critics may be correct about the gap between meaning and doctrine, but their protest is largely beside the point. The measure of the soundness of constitutional doctrine—including “prophylactic” rules as well as three- and four-part tests—is whether it implements the Constitution effectively. Once established, the Court’s doctrinal formulations matter enormously, at least if they are successful. Every police ofﬁcer should know the Miranda rule. Every public ofﬁcial should know that traditionally invidious, racebased classiﬁcations are constitutionally suspect and can be justiﬁed, if at all, only by compelling governmental interests. Lower courts must follow the Supreme Court’s formulations on pain of reversal. Indeed, a test established in one case will generally be viewed as thereafter binding the Justices themselves. In most cases in the Supreme Court, the argument among lawyers and Justices alike turns predominantly on the meanings of previous cases and on how their tests should be applied.25

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A Distinction and an Agenda The phenomenon of the Court’s adherence to doctrine gives rise to a very rough, admittedly permeable distinction between “ordinary” and “extraordinary” adjudication. In “ordinary” cases the Court—or at least a majority— treats the issue for decision as framed by established doctrine. Interestingly and signiﬁcantly, the Justices assume that their obligation of ﬁdelity to the Constitution is met by ﬁdelity to an established structure for implementing the Constitution, grounds for reasonable disagreement notwithstanding. By contrast, in “extraordinary” cases, the Court concludes that it cannot resolve the question before it without either crafting new doctrine or reconsidering the wisdom or applicability of an existing doctrinal framework.26 The Court cannot or does not understand itself as simply applying an established rule or test as authoritatively propounded for cases of this kind in an earlier decision. When the category of extraordinary cases is deﬁned in this way, it is not coextensive with the class of important, high-visibility, or momentous cases. A case of relatively narrow signiﬁcance can raise an unprecedented issue and thus qualify as extraordinary. But the converse does not hold. All cases of high importance are likely to be extraordinary, not ordinary, in the sense in which I use the terms. When a case is perceived as having large consequences, the Court is almost certain to review the suitability of any applicable rule or framework in light of ultimate principles and relevant, practical concerns. Having introduced a distinction between ordinary and extraordinary adjudication, I should acknowledge at the outset that there is often no clear line between applying an established principle or test and adapting a doctrinal structure to previously unforeseen circumstances. No strong convention determines when the Court will hold itself open to reexamining the validity of established precedents.27 In addition, even in cases in which the Court purports simply to apply a previously adopted framework, ultimate constitutional principles hover always in the background, as does the question whether a doctrinal test promotes underlying norms in a sensible way. This, again, is why the distinction between ordinary and extraordinary cases is necessarily permeable as well as blurry.28 But the permeability of the distinction does not so much erode it as endow it with interest. According to the originalist and forum-of-principle approaches, every case should furnish an occasion for judicial inquiry into the truth about what the Constitution means. Yet the Supreme Court patently does not function in this way. In

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Implementing the Constitution

most cases the Court proceeds on the tacit understanding that it will apply, without reexamining, frameworks that were crafted in earlier decisions. Because of the Supreme Court’s undoubted capacity to treat any case as extraordinary, it might be said the distinction between extraordinary and ordinary cases reﬂects the case-by-case decisions of the Justices, not an analytic or prescriptive rule binding on the Court. I would accept this formulation. As I explain in Chapter 6, however, I would resist any suggestion that by deciding to treat a case as ordinary the Court implicitly afﬁrms that the test or framework that it applies would deserve to stand if carefully reassessed in light of ultimate concerns. For a variety of practical reasons, the Court could not function effectively if it were required—for example, by a purported obligation of constitutional ﬁdelity—to consider ultimate questions of constitutional meaning and doctrinal optimality in every case. In the three chapters that follow, I develop a fuller account of the Supreme Court’s role by examining the Court’s formulation and application of constitutional doctrine in “extraordinary” and “ordinary” cases respectively. Chapter 4 discusses the various practical factors that inﬂuence the Court in extraordinary cases and the processes through which such inﬂuence occurs. Chapter 5 then reviews some of the kinds of tests that the Court ﬁrst crafts in extraordinary adjudication; the chapter’s premise is that these tests reveal a great deal about the Court’s understanding of its function. Chapter 6 considers ordinary adjudication and some issues of judicial role that arise when the Supreme Court decides not to engage directly with fundamental constitutional issues but, instead, to treat a case as calling only for the application of previously established doctrine.

CHAPTER

4 Extraordinary Adjudication

This chapter discusses extraordinary adjudication, in which the Supreme Court directly addresses questions of ultimate constitutional principle or establishes or reassesses implementing doctrinal frameworks. I begin by considering the kinds of factors that the Court characteristically and appropriately takes into account in resolving such cases and crafting doctrine for the future. Toward the end of the chapter, I write speciﬁcally about a few well-known, clearly extraordinary cases and about the light that they shed on the Court’s understanding of its functions. Finally, I consider the extent to which we should expect the Court, through extraordinary adjudication in momentous cases, to engage in morally “heroic” action on society’s behalf. My conclusion is that our expectations should be relatively modest. Although judicial review plays a healthy and important role in our constitutional democracy, the Court often serves best by proceeding cautiously.

Types of Constitutional Arguments and Their Interdependence In extraordinary cases that the Supreme Court regards as not properly resolvable through the simple application of established doctrine, the Court typically confronts arguments that vary not merely in substance, but also in kind. The implicit norms of our constitutional practice acknowledge the relevance of at least ﬁve distinct forms of constitutional arguments:1 (1) arguments about the plain, necessary, or permissible meaning of the constitutional text; (2) historical arguments about the original intent, purpose, or understanding of constitutional language; (3) arguments of structure or theory that identify the purposes in light of which particular provisions of the 45

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Implementing the Constitution

Constitution would be most attractive or intelligible; (4) arguments about the meaning or relevance of previously decided cases or historically entrenched practices;2 and (5) value arguments instancing considerations of morality or policy. Because of this diversity, it might be expected that constitutional debates would echo with claims about relative priorities among the various kinds of arguments. In fact, such arguments are by no means commonplace; participants in constitutional debates rarely acknowledge any disparity in the conclusions to which different types of arguments point.3 The explanation seems plain. Although the various kinds of constitutional arguments are sufﬁciently independent to permit separate identiﬁcation, there are strong potential interdependencies among them. For example, linguistic intuitions about the best understanding of constitutional language can sometimes be adjusted in light of precedent or constitutional theory. The “bugging” of a telephone thus comes within the category of a “search” or “seizure” against which the Fourth Amendment affords protection.4 Or, to cite a more controversial example, historical practice and precedent may warrant the conclusion that the prohibition against deprivations of liberty “without due process of law” establishes substantive as well as procedural rights.5 The potential for mutual inﬂuence among the categories of argument is by no means limited to arguments from the Constitution’s text. To take just one more example, the original understanding of a constitutional provision can sometimes be described at a relatively high level of generality in order to reconcile this consideration with a result prescribed by other arguments. Consider Brown v. Board of Education.6 It appears that the Equal Protection Clause was not originally understood to bar race discrimination in public education.7 Nonetheless, the original understanding of the Equal Protection Clause could probably be stated as including a prohibition against depriving any person of the equal enjoyment of basic or fundamental rights on account of race-based prejudice or hostility.8 Once this characterization is permitted, education might reasonably have been regarded as a basic or fundamental right by 1954, when Brown was decided, even if it was not so regarded in the 1860s, when the Equal Protection Clause was ratiﬁed.9 The interdependence of the various kinds of constitutional arguments supports what I have elsewhere called a “constructivist coherence” approach to constitutional adjudication.10 Within this framework, lawyers, judges, and Justices characteristically seek to ﬁnd understandings of arguments from text, the original or historical understanding, constitutional theory, and relevant values all of which point toward the same result. A provi-

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sional conclusion may be reached as to the balance of argument within each category. Perhaps more commonly, the decision-making process will be gestalt-like, as arguments of one kind are considered with all the others in mind. But if the conclusions diverge, then any or all may be reexamined and the results adjusted, insofar as plausible within prevailing conventions of constitutional analysis, in an effort to achieve a uniform prescription. Within an appropriately multifactored account of constitutional adjudication in extraordinary cases, there is room for debate about how, exactly, various kinds of arguments relate to one another. In particular, a large issue exists about how to assess the comparative priorities of different types of arguments when, for example, a relatively narrow conception of the original understanding would counsel one decision, while precedent or value arguments would support another. But two points should not be questioned. First, every ultimate conclusion must at least be reconcilable with the written constitutional text,11 even though, if there are countervailing considerations, the most linguistically natural interpretation will not necessarily prevail. Second, considerations within the general heading of “value arguments” often have a crucial role in shaping how lawyers, judges, and Justices read the text, describe the original understanding, construe the precedents, and so forth.12 Some Justices may perceive the Constitution as reasonably capable of bearing more than one meaning; they will need to determine explicitly which would be “best” in some sense of that term.13 For other Justices, or on other occasions, there may be no self-conscious experience of value-based judgment. Looking at the relevant materials, a Justice may simply experience one result as unambiguously correct—even while others see the opposite result as equally clearly determined. We tend to sort Justices into categories such as “liberal” and “conservative” not just because of the choices that they make explicitly, but because of the values and assumptions that shape their perceptions.

Some Varieties of Value Arguments Among the categories of constitutional arguments, “value arguments” are easily the most controversial. Originalists, among others, have protested that considerations of this kind have no proper role in constitutional adjudication. But the protestations are unconvincing. It is this category, perhaps more than any other, that gives constitutional adjudication its intensely practical aspect. A nonexhaustive list of relevant considerations includes the following.

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Many constitutional guarantees reﬂect moral values or Clearly relevant to constitutional adjudication is how those values or principles would best be speciﬁed as a matter of ultimate political morality. As Ronald Dworkin maintains, there should be little doubt that judges and Justices frequently strive to give a “moral reading” to the Constitution.15 Just as familiarly, judges and Justices disagree about what would count as the “best” moral reading. Confronted with disagreements of this kind, some critics, as I have noted, contend that the Justices should eschew moral judgment altogether.16 But this response misses the predicament in which the Justices ﬁnd themselves. If constitutional language, historical understandings, and judicial precedents will reasonably bear more than one interpretation, then there is at least a strong presumptive case that the Justices should adopt the interpretation that will make the Constitution, in Dworkin’s words, “the best that it can be” (without twisting it into something else).17 Where alternative interpretations are otherwise reasonably plausible, does anyone really think that a Justice should be indifferent to issues of ultimate right or fairness? In stressing the Justices’ legitimate concern to make the Constitution the best that it can be, I would note an important limit. When determining what would be the morally best interpretation of the Constitution in the face of reasonable disagreement, the Court appropriately acts in a representative capacity, charged with reasoning from principles that—at some level—can fairly be viewed as widely shared.18 The Justices should not attempt to implement a personal, such as a religious, morality. Rather, the Justices should act insofar as possible on the basis of ideals that are rooted in the public, political culture or in what John Rawls has called an “overlapping consensus” of reasonable moral views.19 This stricture leaves ample space for disagreement and personal vision. In moving from general principles to concrete speciﬁcations and particular legal conclusions, a Justice must inevitably make contestable judgments about how the community’s immanent morality would best be speciﬁed. Nonetheless, the role of individual moral judgment is bounded by a requirement that the Justices reason from norms that can fairly be imputed to a broad, inclusive constitutional community. U LT I M A T E I D E A L S O F C O N S T I T U T I O N A L J U S T I C E

principles.14

Beyond personal ideals, a Supreme Court Justice has institutional obligations as a member of a collegial body. In par-

INSTITUTIONAL CONCERNS

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ticular, Justices sometimes do, and should, temper their personal ideals in order to achieve majority opinions capable of producing clear and stable law.20 In identifying and enforcing constitutional rights, the Court regularly takes costs into account. Nearly all rights can be overcome by sufﬁciently compelling governmental interests.21 In cases in which it would be too costly to do so, the Court typically will not recognize any concrete, judicially enforceable right at all. Fourth Amendment rights against unreasonable searches and seizures are constrained by the Court’s concern about risks to police ofﬁcers and law enforcement.22 Rights to procedural due process are limited by the time and expense of increasingly formalized proceedings.23 Equal protection doctrine reﬂects that it would be too costly for the government not to be able to classify people based on very broad, often imperfect generalizations. For example, the Court has held that the Constitution would permit the government to presume conclusively that no one over age ﬁfty remains physically ﬁt to be a uniformed police ofﬁcer, even though some people over ﬁfty continue to be thoroughly ﬁt.24 In making calculations about when the costs of enforcing constitutional values would grow too great, the Court often describes itself as identifying and weighing governmental interests. But the constitutional text does little to guide this process.25 Precedent sometimes provides general help by identifying particular governmental interests as either “compelling” or not “compelling.” For the most part, however, the Court must proceed on the basis of widely shared values or common sense. C O S T S T O G O V E R N M E N TA L I N T E R E S T S

In determining which rights to recognize, the Court must make calculations about judicial capabilities and about the potential costs of authorizing judicial involvement. The shape of constitutional doctrine reﬂects this concern. To take one plain example, the Court has held that political gerrymanders—deliberate attempts to shape electoral districts to the advantage of one political party— are unconstitutional only if they systematically degrade the votes of another party’s voters on a statewide basis.26 This standard is almost impossible to meet, and designedly so. Unwilling to hold that political considerations can have no permissible role in electoral districting, the Court doubts its ability to craft and enforce more exacting standards limiting gerrymanders. (By JUDICIAL MANAGEABILITY AND ENFORCEABILITY

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contrast, the now-settled rule that electoral districts must be roughly equal in population is easily manageable by the courts.)27 Another example of manageability concerns is reﬂected in the distinction between “negative” and “positive” constitutional rights.28 Nearly all recognized constitutional rights deﬁne protections against adverse actions by the government. There are few recognized rights to have the government take afﬁrmative steps, such as protecting one citizen against private violence by others. The distinction between negative and positive rights is not ﬁrmly grounded in the written Constitution. For example, the guarantee of “equal protection” could be construed to require the government actually to provide everyone with equal protection against crime. Scholars have also advanced forceful arguments for constitutional rights to education, health care, and other practical prerequisites to the enjoyment of explicit constitutional guarantees.29 The argument for such rights takes much the same form as the argument supporting other recognized but not precisely speciﬁed rights, such as the right to freedom of association. Although neither a right to freedom of association nor a right to effective education is expressly enunciated in the Constitution, effective speech and political activity often require association and collaboration, and they often require education as well. If we want to know why the Court has recognized a fundamental right to free association30 but not to effective public education,31 the explanation surely involves the Court’s belief that the federal judiciary can sensibly enforce the former but not the latter. Implementing a right to effective public education would require assessments of educational quality that courts are poorly equipped to make (at least in the absence of the kind of benchmark that state law sometimes provides, but the federal Constitution does not).32 Perhaps more important, a right to effective public education could draw the courts into general oversight of the government’s budget process, in which decisions about educational funding cannot be separated from other taxing and spending policies. Considerations of judicial manageability are of course only one concern among others. If convinced that state and local ofﬁcials had allowed brutal injustices to occur in the sphere of education, the Court might countenance a limited judicial intrusion on state and local budgetary prerogatives, just as it has, for example, in prison reform litigation.33 Short of that, however, the Court clearly views issues of relative judicial manageability as counseling against the recognition of a fundamental right to effective public education.

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I have emphasized that decision making in constitutional cases frequently depends on factual assumptions. To revert to an example cited already, First Amendment doctrine reﬂects assumptions about how the threat of libel suits might “chill” news coverage. Similarly, Fourth Amendment doctrine protecting against “unreasonable” searches and seizures reﬂects assumptions concerning people’s reasonable expectations of privacy, the evidence-gathering techniques necessary for effective police work, and the risks to which police would be subject if they could not conduct certain types of searches. Although the Court necessarily makes psychological, sociological, and predictive assessments, its information is almost always less than optimal. From within a fog of uncertainty, the Court must assess the practical wisdom of rendering one or another ruling. Traditional teaching holds that courts should decide cases on the narrowest possible grounds to avoid precommitments that might prove unwise.34 But the Supreme Court could not act consistently on this maxim. Part of the Court’s job is to frame rules that will clarify the law and guide future decisions, not only by lower courts, but also by nonjudicial ofﬁcials.35 The Court must therefore attempt to achieve a delicate balance along several dimensions. It must consider the wisdom of alternative approaches in light of relative risks that crucial, underlying assumptions may be mistaken to one or another degree. Weighing the costs of continued legal uncertainty against the risk of a less than optimal rule, the Court must also determine how broadly or narrowly to frame a rule, test, or doctrine. Finally, the Court must consider whether, in light of the risks of error in specifying a doctrine or test, it might be unwise to articulate any applicable norm at all. R I S K S O F E R R O R I N T H E F O G O F U N C E R TA I N T Y

D E M O C R AT I C A C C E P TA B I L I T Y I N L I G H T O F R E A S O N A B L E D I S A G R E E M E N T Just as the Court can take reasonable disagreement into account in crafting tests to protect recognized constitutional values, so the Court can attach signiﬁcance to reasonable disagreement in determining, in some cases, which values the Constitution is best understood as encompassing at a particular time. To a considerable extent, immanent norms of constitutional practice call upon the Supreme Court to pursue ideals of substantive justice. As I have suggested already, the underlying hypothesis is that the Court is likely to reach better decisions about the relevance of principle to practical issues than would other institutions of government.36 I have also

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suggested, however, that the fair or equal allocation of political power is also a moral and constitutional ideal, especially in cases of genuinely reasonable disagreement about underlying substantive issues. The pertinence of this ideal to constitutional adjudication is a complex variable, not a constant (as is often misleadingly suggested). As I have noted already, in many and perhaps most constitutional cases, the challenged decision will have been made by a relatively low-level ofﬁcial (such as a police ofﬁcer) or a governmental agency that itself has only a dubious claim to represent the majority’s will.37 Moreover, even in cases involving challenges to statutes, the legislature often will not have addressed the precise issue framed for the Court. (There are some admitted exceptions, as discussed later in this chapter.) As a result, there typically will be no plausible argument that the Court should defer to the reasoned constitutional judgment of a decision maker with a strong democratic mandate. The concern has more to do with democratic acceptability, extended into the future. The Court can reasonably view itself as having a limited proxy to deliberate about constitutional issues on behalf of the people; if its judgment sufﬁciently sways opinion, the requirement of democratic acceptability will be met. The worry is whether the Court is justiﬁed in imposing its views when others will understandably resent the Court’s exercise of authority as intruding contestable values into a domain where it is reasonable to think that no constitutional problem exists. In perhaps the most inﬂuential work of constitutional theory in the past half-century, Alexander Bickel wrote that “the Court should declare as law only such principles as” it can reasonably expect “will—in time, but in a rather immediate foreseeable future—gain general assent. . . . The Court is a leader of opinion, not a mere register of it, but it must lead opinion, not merely impose its own.”38 If taken as an ultimate measure of what the Court should do, Bickel’s prescription is too strong. The Court must weigh a variety of considerations, including the demands of substantive constitutional justice. If, however, Bickel’s assertion is viewed as reﬂecting a value of democratic acceptability that must at least be accorded weight, it expresses an enduring insight.

Competition and Conﬂict among Value Arguments The kinds of value arguments that the Court may consider in extraordinary cases are not only diverse, but also can conﬂict with one another. Some

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kinds of conﬂicts are unremarkable, at least after the practical and institutional aspects of the Court’s role are recognized. For example, a Justice’s ideal conception of constitutional norms may be incapable of commanding a majority of the Court; institutional concerns may then militate in favor of compromise. In such a case, the Justice will have to make an all-things-considered, balancing judgment about how best to proceed.39 Ultimate constitutional ideals may also have to yield, in some but not all cases, in light of the costs of enforcement or problems of judicial manageability. In all of these cases, however, the Justices make an independent assessment of how the Constitution should best be interpreted or implemented. The value of democratic acceptability might appear to occasion a different kind of conﬂict. Uniquely among those that I have identiﬁed, that value might seem to call upon the Justices to cede their responsibility for independent judgment. But it does not. Ultimately, each Justice must decide for herself whether it would be better to proceed as she otherwise would have proceeded or to temper her judgment in light of likely democratic unacceptability (if that is indeed a probable prospect). Nonetheless, in making her all-things-considered judgment, a Justice may feel a conﬂict between what she otherwise would have thought best and her concern to achieve democratic acceptability. At least three considerations are relevant. The ﬁrst involves the Justice’s degree of conﬁdence in her own substantive judgment. The less conﬁdent she is that she is correct, the readier she should be to yield to concerns of democratic unacceptability. A second relevant consideration is the seriousness of the error or injustice that could result from yielding to concerns of democratic unacceptability. Not all errors or injustices stand on the same plane of gravity. A third set of obviously relevant factors involves the actual likelihood that a judicial ruling would indeed prove democratically unacceptable, the number of people who would feel the grievance, and the reasonableness and strenuousness of their objection. Assessments of future public judgments are always uncertain at least to some degree. The weight of this consideration, as others, varies from case to case. Perhaps an example will help to illustrate some relevant concerns. For a number of years, the Supreme Court has been deeply divided about how to interpret and enforce the Constitution’s Establishment Clause, which prescribes that “Congress shall make no law respecting an establishment of religion.”40 Under the so-called Lemon test,41 the Court has held that a law violates the Establishment Clause if it has either the purpose or the “principal

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or primary effect” of advancing religion. In recent years, a number of Justices have criticized the Lemon test. Some have taken the view that a law or policy violates the Establishment Clause only when it coerces religious practice;42 others have argued that the touchstone should be whether a reasonable observer would believe that the government has endorsed religion.43 Strikingly, however, not even those Justices most ardently committed to a strict separation of church and state have ever suggested that the government violates the Establishment Clause by emblazoning “In God We Trust” on the currency or by sponsoring a pledge of allegiance that refers to “one Nation, under God.” The Court has invalidated school prayer.44 It has divided about whether creches and Christmas displays violate the Establishment Clause.45 But the strict-separationist Justices have signalled their acceptance that “In God We Trust” can remain on the currency and the ﬂag salute can describe the nation as “under God.”46 Their formal explanation is that these words have lost their religious signiﬁcance. Yet if the words have any effect at all, it must surely be religious—and this, it would seem, should be enough to establish that these publicly sponsored references to God have a “principal or primary” effect of promoting religion that is forbidden by the Lemon test. That effect may be small, bordering on de minimis. But why should even a small effect be allowed? The answer, I would suggest, is that the Justices otherwise most committed to strict separation of church and state apprehend that judicial rejection of these entrenched practices would engender widespread anger and resentment—and perhaps not unreasonably so (even if not rightly) in light of historical understandings of what the Establishment Clause permits. The Court’s school prayer decisions of course triggered strong hostility and resistance. But the injustice to individuals in those cases might reasonably be thought much greater. The proselytization was more overt, was singularly directed at impressionable school children, and had a greater, divisive tendency to mark religious minorities as outsiders. Although I cannot prove it, I would speculate that the (relatively) strict-separationist Justices have weighed the anticipated democratic unacceptability of invalidation against the relatively small injustice wrought by “In God We Trust” on the currency and concluded that, all things considered, the balance of values tips against ﬁnding an Establishment Clause violation. If so, the calculation seems to me to be a generally sensible one, though by no means free of complications. At some point along a spectrum, concern about democratic acceptability

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may meld with considerations of “prudence”—a term that Professor Bickel famously associated with worry by the Court about whether its decisions are likely to lead to a public backlash against it.47 If Supreme Court decisions cause too much anger and resentment, Congress might attempt to curb the Court’s jurisdiction and thereby limit its capacity to decide cases at all;48 the Court’s size might be altered and the bench “packed” with Justices favoring a reversal of course; or, more likely, presidents and senators may attempt to use the power of appointment and conﬁrmation to achieve speciﬁc—and speciﬁcally different—outcomes with respect to particular issues. Not unreasonably, the Justices might consider any of these consequences to be undesirable. Moreover, they might reasonably regard the likelihood of any of these occurrences as a measure of the democratic unacceptability that, in cases of reasonable disagreement, they may appropriately take into account. With the reference to prudential efforts by the Court to preserve its own institutional status, however, matters grow knotty. As I have meant to emphasize in acknowledging the partial illuminating power of Ronald Dworkin’s theory, the Supreme Court in one important sense is indeed a forum of principle, even if it has other functions as well. A principal justiﬁcation for robust judicial review is that courts have a special mission and competence for bringing constitutional principles to bear on matters of practical governance that legislatures and executives do not. In my view, the Court can appropriately weigh matters of democratic acceptability in determining whether to assign to constitutional language a meaning that the language will bear, but that is not dictated by doctrinally entrenched understandings. But if the Court is to function as a forum of principle in the minimally requisite sense, the Justices cannot fail to enforce doctrinally entrenched rights in a particular case simply to avoid popular hostility. What makes the case of “In God We Trust” on the currency a troubling one is the question whether it could fairly be said that the Justices have merely failed to recognize a right in a case of reasonable disagreement (which would be permissible), or whether they have instead refused to enforce a doctrinally established right for reasons of calculated, institutional self-interest (which would be unacceptable). In the absence of any on-point precedent, and given repeated dicta that some practices become so woven into the fabric of American life as to lose their distinctive religious signiﬁcance in the eyes of the Constitution, I think the former characterization fairly ﬁts the facts. But the case is a close one.

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Some Cases It is instructive to consider Supreme Court decision making in some actual extraordinary cases. As I have deﬁned it, the category of extraordinary cases is not limited to renowned, and certainly not to epochal, decisions. It encompasses any case in which the Court ﬁrst articulates a constitutional principle, or prescribes a doctrinal test, or treats its prior holdings as open to serious reconsideration on the basis of ultimate concerns—any case, in other words, that the Court frames as not directly governed by accepted precedent. Moreover, given the uncertainty of the line between doctrinal innovation and doctrinal elaboration, there may sometimes be only a ﬁne difference of degree between extraordinary and ordinary cases—a point I emphasize in Chapter 6. In this chapter, however, I mostly discuss especially well-known and indisputably extraordinary decisions. Indeed, the landmark status of two of these cases has earned them acceptance as measuring rods for constitutional theories. In both legal consciousness and the popular imagination, Brown v. Board of Education49 exempliﬁes constitutional justice; a constitutional theory is widely thought to be disqualiﬁed from acceptance if it could not justify the result in Brown.50 Brown also stands among the signature decisions of the so-called Warren Court. Much more controversial than Brown, Roe v. Wade51 is the other prism through which contemporary debates about constitutional theory are most often refracted. Signiﬁcantly, Roe was decided by the Burger Court, and it bears at least some of the jurisprudential hallmarks of that era in Supreme Court history. But Roe’s story extends temporally into the period of the current Rehnquist Court, which reconsidered the decision’s validity, and only partly reafﬁrmed it, in Planned Parenthood v. Casey.52 Besides being an integral part of Roe’s legacy, Casey sheds interesting light on the styles of, and divisions among, some of the current Justices. I also consider the Rehnquist Court’s more recent decisions in the “right to die” cases53 and in City of Boerne v. Flores.54

Brown v. Board of Education As the historical record makes clear, the Court deciding Brown v. Board of Education plainly understood itself as engaged in a fundamental reexamination of constitutional principles and, relatedly, in a profound assessment of the nature and limits of its role. For most if not all of the Justices, it had be-

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come plain by the time of Brown that state-enforced segregation of school children was morally wrong.55 Moreover, the language of the Equal Protection Clause easily supports the conclusion that race-based segregation is unconstitutional. Still, the decision was agonizingly difﬁcult. From the perspective of the Court, the problem posed by Brown comprised several related parts. First, in a case decided in 1896, Plessy v. Ferguson,56 the Court had upheld state-mandated segregation on railroad trains and endorsed the doctrine of “separate but equal.” Second, in the wake of Plessy, legally mandated race-based segregation had suffused the social and political fabric of many states, especially in the South.57 If the Court were to mandate an end to Jim Crow legislation, strong resistance could only be expected, and not in the South alone. Throughout the nation, racism remained a powerful force. In the face of these obstacles, the Court, after hearing arguments once in Brown, set the case for a rare second argument. In preparation, the Court asked the parties to brief the question whether the Fourteenth Amendment was originally intended to bar segregation in the public schools.58 If the answer to this question had proved to be afﬁrmative, the Court would have felt buttressed in overturning the separate-but-equal doctrine; it could have assigned responsibility for the decision to the framers and ratiﬁers. But the history provided little solace. The Congress that enacted the Fourteenth Amendment apparently had no speciﬁc intent to abolish school segregation, which ﬂourished as much after the ratiﬁcation of the Equal Protection Clause as it had before.59 Indeed, as one of the Justices’ law clerks (the future Professor Alexander Bickel) concluded in a now-famous memorandum, the best that might plausibly be said was that the general, open-ended language of the Equal Protection Clause reﬂected a compromise: it permitted champions of the Fourteenth Amendment to deny charges that the amendment would require an immediate and politically untenable end to all race-based segregation, but “was sufﬁciently elastic to permit reasonable future advances” toward racial equality.60 Attempting to navigate these shoals, the Court began its opinion in Brown by pronouncing that historical sources “cast some light,” but could not “resolve the problem with which we are faced.”61 The Court then proceeded to argue that public education had become much more important in 1954 than it was in 1868 and, indeed, had emerged as a basic right of citizenship.62 “[W]e cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written,” Chief Justice Warren wrote in his opinion for the Court. “Today, education is perhaps

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the most important function of state and local governments.”63 Asserting that race-based segregation “generates a feeling of inferiority” among school children and “may affect their hearts and minds,”64 the Court pronounced that “[s]eparate educational facilities are inherently unequal.”65 Signiﬁcantly, the Court’s constitutional ruling did not end its opinion. Rather, the Court noted that the formulation of a remedy for school segregation “presents problems of considerable complexity.”66 It therefore set a third argument in the case, to be devoted to issues of remedies. A year later, in Brown II,67 the Court ruled that the primary responsibility for achieving school desegregation rested upon local school authorities. Federal courts would issue mandatory decrees only as necessary to ensure that public schools moved “with all deliberate speed” to implement race-neutral policies for student assignment.68 For a period of years, Brown was ﬁercely controversial, especially in the South, where political ﬁgures initially adopted a stance of “massive resistance.”69 Brown also attracted early criticism from a number of scholars who questioned the legal foundation for the Court’s decision.70 Today the questioning has largely ceased. In nearly all eyes, Brown reﬂects the Supreme Court at its best. If viewed as a “paradigm” of appropriate Supreme Court decision making,71 Brown v. Board of Education teaches at least three important lessons. First, under widely accepted norms of interpretive practice, the Supreme Court simply is not bound in every case by a narrow conception of the framers’ intent or the original understanding of constitutional language. Original understandings provide an important reference point for the assessment of constitutional meaning, but need not always prove decisive. Within limits, the Court is entitled to provide what Professor Dworkin calls a “moral reading” of the Constitution. Second, although the Court appropriately weighs considerations of democratic acceptability in determining whether to assign constitutional language a meaning that it will bear but does not require, this is only one concern among others. Moreover, the Court may reasonably hope that its decisions and reasoning will help to sway judgments of moral and constitutional right—though whether Brown actually succeeded in doing so has recently become much controverted.72 Third, for the Court to be able to promote effective constitutional implementation by other institutions, some devices of accommodation and compromise must be available to it. In Brown and especially in Brown II, the

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Court tempered its judgment of principle by placing initial responsibility for implementation on local school ofﬁcials and by charging them to respond, not necessarily immediately, but “with all deliberate speed.” Against this formula, Thurgood Marshall issued an anguishing complaint that “the argument [to postpone enforcement of a constitutional right] is never made until Negroes are involved.”73 Marshall’s claim bears the sting of truth, but it is not the whole truth. Within our constitutional scheme, no one-to-one correlation exists between constitutional rights and individually effective constitutional remedies.74 Damages remedies are frequently unavailable to the victims of rights’ violations. “Sovereign immunity” often bars suits for damages relief against the government itself,75 while “ofﬁcial immunity” doctrines commonly preclude monetary recoveries from governmental ofﬁcials.76 Moreover, just as immunity doctrines sometimes preclude damages remedies, well-established principles call for courts to “balance the equities” before determining what injunctive relief, if any, to grant.77 Not only in Brown, but more broadly, limitations on constitutional remedies played a crucial role in the Warren Court’s expansion of constitutional rights. In a 1965 decision in Linkletter v. Walker,78 the Court asserted power to deny full retroactive effect to its pathbreaking decision in Mapp v. Ohio,79 which established the “exclusionary rule” requiring state courts not to admit evidence seized in violation of the Fourth Amendment. Although the exclusionary rule applied to all future cases in the states’ trial courts, previously obtained convictions did not need to be reversed. The Warren Court also denied full retroactivity to Miranda v. Arizona.80 As a practical matter, it was much easier for the Court to establish the Miranda rules, for example, when it knew that its decision need not trigger the immediate release of every felon whose conviction depended on a confession obtained without the requisite warnings.81 Similarly, immunity doctrines are not necessarily hostile, on balance, to the interest in securing and enforcing a defensible “moral reading” of the Constitution. If holding for the plaintiffs in Brown had necessarily meant that state and local governments would have had to pay damages to all who had attended discriminatory schools in the past, the Court might have felt disabled from ruling school segregation unconstitutional at all.82 These are crucial, practical facts about our constitutional system, and the Supreme Court’s role within it, that both originalist and forum-of-principle accounts too often ignore.83 Even against this background, however, the remedial approach in Brown required a further step, as Thurgood Marshall aptly noted: the Court counte-

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nanced delayed relief in Brown—although it expressly said otherwise84— mostly because it knew its decision would be opposed because of race-based prejudice and hostility.85 Had the Court attempted to insist on immediate desegregation, who knows what consequences might have ensued? Possibly the result would have been swifter justice; possibly it would have been more resistance, more violence, and even greater division and hostility than developed anyway. Whether or not the Court ultimately reached the right decision, its weighing of likely consequences in prescribing the remedial approach of Brown II was not wholly out of line with accepted judicial practice, nor was it inappropriate. The Court must be concerned about the efﬁcacy of its rulings and also about the costs, notably those borne by the intended beneﬁciaries of the rights that it establishes.86 Threats of violence and hostility could not be a matter of indifference. The Court was also right to consider how state and local ofﬁcials might best be persuaded to accept responsibility for desegregation, rather than experiencing themselves as the alienated targets of a morally distant command. Critics of positions such as this protest, often eloquently, that the Court’s legitimacy resides in its unwavering commitment to principle and, in any event, that the Court is ill suited to the political arts of compromise and accommodation. This criticism is troubling, because of the genuine difﬁculties toward which it points, but it is not ultimately persuasive. Constitutional principles do not stand in pure, crystallized form for the Court to identify exclusively through originalist historical inquiry or abstract philosophical reﬂection. Neither do particular remedies stand to rights as invariable logical entailments. As an institution charged with implementing the Constitution successfully, the Court must take reasonable disagreements and practical costs into account in determining how contestable principles should be speciﬁed and then enforced. It is true that the Court may get its calculations wrong, and perhaps especially its calculations concerning likely resistance and democratic acceptability. But the Justices may not always be adept at providing a pure “moral reading” of constitutional language either. Nor is it any accident that Supreme Court Justices are lawyers instead of philosophers, for their historic charge is to develop doctrines and remedial mechanisms that realize ideals successfully in practice. In Brown v. Board of Education, the Court could not responsibly have mandated a social revolution and then, having done so, disavowed responsibility for the consequences.

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Roe v. Wade and Its Aftermath Roe v. Wade87 was a lawsuit brought by an unmarried, pregnant woman challenging a law that rendered her “unable to get a ‘legal’ abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy.”88 As in Brown, the Court heard arguments ﬁrst in one session, and then set the case for reargument a year later.89 At the time of Roe’s decision, a majority of the states, like Texas, had restrictive antiabortion legislation. Nonetheless, many abortions were performed in the United States—by some estimates, well over a million each year.90 Most of these occurred in the minority of states where abortion was legal. Because some states authorized abortion, a woman’s access to legal abortion was partly a function of wealth; the more money a woman had, the easier it was to travel out of state. In addition to legal abortions, however, thousands of illegal abortions were performed in the United States each year.91 The death rate for illegal abortions was staggeringly higher than for legal abortions.92 The obvious should probably be stated as well: the most direct burdens of antiabortion legislation fell on women, not men. At roughly the same time as Roe, the Court was beginning to treat explicitly sex-based classiﬁcations as semisuspect, and thus as subject to heightened scrutiny, in challenges under the Equal Protection Clause.93 As Roe v. Wade came to the Court, however, it was a “substantive due process” rather than an equal protection case. Roe claimed that the Texas antiabortion statute deprived her of liberty “without due process of law.” That the claim sounded in “due process” was a double embarrassment. First, substantive due process challenges have been derided by some as oxymoronic; in John Ely’s memorable phrase, “ ‘[S]ubstantive due process’ is a contradiction in terms—sort of like ‘green pastel redness.’ ”94 According to those who hold this view, the Due Process Clause should be limited to guaranteeing fair legal procedures. Second, the line of substantive due process cases associated with Lochner v. New York,95 in which the Court had invalidated a great deal of economic and regulatory legislation, had come to be almost universally reviled as well as abandoned. The Court was chary of repeating the mistakes of the Lochner era. At the same time, the American constitutional tradition has long recognized a judicial authority, not necessarily linked to any speciﬁcally enumerated guarantee, to invalidate truly arbitrary legislation.96 Among widely ac-

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cepted examples, in a companion case to Brown v. Board of Education,97 the Court had held that federally enforced segregation in the District of Columbia schools violated substantive due process. It was simply unthinkable, the Court wrote, for the federal government to be permitted to discriminate in this way, even though the Equal Protection Clause (on which the Court relied in Brown itself) applies only to the states.98 In addition, the Court had recently recognized (in a confusing equal protection case invalidating restrictions on access to contraceptives) that unmarried as well as married people have a fundamental liberty right to determine whether to “bear or beget a child.”99 From the beginning of their deliberations in Roe, a majority of the Justices apparently regarded sweeping prohibitions against abortion—with exceptions only to save the life of the mother, for example—as imposing an arbitrary and constitutionally intolerable burden on women.100 A majority clearly also wanted some kind of compromise that would acknowledge the validity of the state’s interest in protecting fetal life and permit regulations of late-term abortions. The task of drafting an opinion that met these speciﬁcations fell to Justice Harry Blackmun, who offered Roe’s famous division of pregnancy into trimesters.101 Within this structure, Blackmun concluded that it is only in the third trimester, when the fetus becomes viable, that the state’s interest in fetal life becomes “compelling” enough to justify an absolute prohibition against abortion.102 During the ﬁrst trimester, the state has no legitimate power to regulate abortion at all.103 During the second, the state may impose regulations designed to ensure medical safety, but cannot prohibit abortion altogether.104 Its ultimate framework aside, the Court’s opinion in Roe v. Wade is puzzling, disappointing, almost embarrassing to read. Justice Blackmun offers page after page on the history of abortion,105 but mostly to no clear legal point. In a few brisk paragraphs, he then cites a number of the Court’s own precedents as authority for ﬁnding a fundamental right to abortion protected by the Due Process Clause.106 Under established due process precedent, however, “fundamental rights” must yield to “compelling” governmental interests. Justice Blackmun must therefore determine whether the state interest in fetal life counts as “compelling.” At this point, it is little exaggeration to describe Blackmun’s opinion as bereft of reasoned argument. He ﬁrst says that the Court need not resolve the question when “human” life begins.107 He then simply asserts that the state’s interest in potential human life becomes “compelling” only at the point of viability. According to

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Justice Blackmun, “This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb.”108 As John Ely has noted, this argument mistakes a deﬁnition for a syllogism.109 It is true by deﬁnition that a fetus can live outside the womb only if it is “viable”; but this deﬁnition cannot resolve the weight of the state’s interest in protecting the life of an admittedly nonviable human fetus. A further ground for disappointment is that the centrality of abortion as a distinctive concern of women comes remarkably close to being effaced.110 Justice Blackmun repeatedly characterizes abortion decisions as “medical” judgments, which the states must not take from the hands of “physicians.”111 Without exception, his references to physicians employ male pronouns. In the years since Roe v. Wade, its defenders have labored tirelessly to demonstrate how the opinion should have been drafted. Books and articles have attempted to show that the right to abortion has a ﬁrmer philosophical foundation than the Justices comprehended.112 Feminists and others have argued forcefully that abortion presents an equal protection rather than a substantive due process issue;113 rarely if ever are men required to endure comparable bodily intrusions—for example, by being a kidney donor—to preserve the life of another.114 On the other side, ﬁerce opponents of the abortion decision have insisted that the Court lacked either a textual or a moral warrant for overriding the state’s interest in protecting fetal life.115 In retrospect, Roe v. Wade appears, oddly, to be a somewhat characteristic decision of the Burger Court. Richard Nixon, who nominated Warren Burger to be Chief Justice, had campaigned against the Warren Court in the 1968 presidential election and pledged to ﬁll the bench with law-and-order and “strict constructionist” Justices.116 On the whole, Nixon got the former but not the latter. By any political measure, the Burger Court was distinctly more conservative than the Warren Court, but it was also undisciplined— prone to what Vincent Blasi termed “rootless activism.”117 For better and for worse, the Burger Court often made bold attempts to set matters right (as seen through the eyes of nine well-off lawyers) on an issue-by-issue basis. Plunging into the abortion thicket with excessive optimism and incautious good will, the Justices largely postured themselves as arbitrators of a charged dispute, with the aim of forging a compromise that they thought should prove reasonably acceptable to all concerned. I have argued that the Supreme Court properly takes reasonable disagreement into account and that it should worry, in some cases, about the demo-

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cratic acceptability of assigning to constitutional language a meaning that it will bear but does not require. Having done so, I can hardly fault the Burger Court for treating concerns of democratic acceptability as relevant in Roe v. Wade. As I have meant to acknowledge, however, attempting to plumb the democratic acceptability of judicial initiatives involving matters of deep social signiﬁcance is a hazardous mission that can go dramatically awry. In Roe, the Justices badly misapprehended the depth and even the nature of the moral passion of the two contending positions. To one side, abortion was like murder. To the other, nearly all abortion restrictions were an affront to the dignity and equality of women. When the Justices decided Roe v. Wade, they undoubtedly felt that they had deﬁnitively resolved the largest issues about the permissibility of abortion regulations. Events proved otherwise. Opponents of abortion continued to press for restrictive legislation. Presidential candidates promised to appoint only pro-life Justices.118 Reversal of Roe v. Wade became an agenda item in Republican Party platforms.119 As abortion cases continued to come before the Supreme Court, the majority squarely supporting Roe shrank from 7-2 in 1973 to 5-4 by the mid-1980s.120 As the Court prepared to decide Planned Parenthood v. Casey121 in 1992, it was widely assumed that the political agenda of securing conservative, pro-life Justices had ﬁnally succeeded, and that Roe was about to be reversed. Casey brought a major surprise. Four Justices indeed took the position that Roe was a grievous methodological mistake that the Court should overrule.122 According to these Justices, the Court should invalidate legislation on substantive due process grounds only to protect rights that are expressly recognized in relatively speciﬁc historical traditions.123 At the other end of the spectrum, Justice Stevens joined Justice Blackmun—the sole remaining member of the original Roe majority—in continuing to maintain that Roe was rightly decided, though with a shift of emphasis concerning rationale. Arguments that abortion was a medical issue faded from view; interests of women in sexual equality and freedom from subordination rose to the forefront.124 With six Justices thus divided, the dispositive votes were cast by three Justices—Sandra Day O’Connor, Anthony Kennedy, and David Souter—who were appointed by Republican presidents and were widely assumed to be anti-Roe. In a joint opinion, these Justices ruled that although the details of the Roe framework should indeed be altered, Roe’s “basic holding” that women have a right to procure early-term abortions should not be overturned.125 Two considerations appear to animate the plurality opinion in Casey. The

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ﬁrst is a belief that even if Roe represented a judicial mistake at the time of its initial decision, it was at least not an obvious mistake. An unwanted pregnancy imposes large and unique burdens on women; and the conclusion that the state may not require women to bear that unwanted burden ﬁnds support in, even if it is not directly dictated by, cases affording constitutional protection to the right to use contraception.126 The second, more remarkable theme involves a connection between the Court’s perceived “legitimacy,” or moral or legal right to pronounce deﬁnitively on controverted questions, and its perception by the public as an institution that lies beyond political manipulation and does not vacillate in the face of public resistance.127 In its insistence that “to overrule [Roe] under ﬁre”128 would do “profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law,”129 the Casey plurality’s rhetoric was overwrought. Nevertheless, the joint opinion shone a spotlight on a central tension of judicial review. The justiﬁcation for judicial review requires that the Court be reasoned, deliberative, and principled—not “political” in the pejorative sense. Yet the Court’s decisions must also be democratically acceptable (which is not to say they must be democratically applauded), and democratic acceptability must be measured by reference to actual or anticipated views or responses, sometimes as reﬂected in manifestly political actions. With Roe v. Wade behind it, the plurality felt that it could not abandon Roe entirely without appearing too overtly to follow the election returns,130 but neither could it ignore the pressures from the other side. In this respect following the model of Roe itself, the joint plurality opinion in Casey thus adopted a compromise, slightly adjusted from that reﬂected in Roe. Under Casey, even in the ﬁrst two trimesters it is permissible for the states to attempt to persuade women to consider carefully before ultimately opting for abortion, as long as they do not put “undue burden[s]” in the way of those committed to having an abortion.131 It remains to be seen whether Casey’s compromise will hold better than its predecessor.132 If Roe v. Wade and its history convey one clear moral, it may be that we ask and sometimes expect more of the Court than any institution could plausibly deliver. For originalists, Roe is of course an easy case. Abortion was not forbidden by the original understanding of the Due Process Clause. But if originalism is not a sound theory in general, there is no warrant for trotting it out in substantive due process cases. From the perspective of most adherents of the forum-of-principle model, Roe would appear to have been rightly decided, with considerations of democratic acceptability and political

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backlash lying beyond the domain of principled judicial concern. Whatever the conclusion about Roe’s ultimate rightness, however, dismissal of concerns of democratic acceptability seems to me to be myopic. Even apart from the substantive values supporting abortion regulation, issues of fair allocation of political power are involved, and it could hardly be irrelevant, to my mind, that Roe helped to trigger a dramatic and unhealthy increase in the politicization of judicial appointment and nomination processes. When substantive, democratic, and instrumental concerns are matched against the sad losses of life from botched illegal abortions and the impediment of legal restrictions on abortion to women’s full social equality, the case presented a “tragic choice.”133 Moral and constitutional deliberation must proceed on the hypothesis that every question has one right answer.134 But the practical reality is that the Court must sometimes make painful selections among competing values and that there frequently would be reasonable disagreement about any imaginable decision. As a practical matter, there sometimes may be no good answer, only some that are less bad than others. Even after all these years, it is still not clear (to me, anyway) what the least bad answer in Roe would have been.

The “Right-to-Die” Cases Recent years have witnessed increasing controversy about various forms of an asserted “right to die.” Some of the controversy has involved heroic medical treatment, such as respirators and intravenous feeding.135 Other debates have focused on when, if ever, “euthanasia” or one person’s active “mercy killing” of another should be permitted.136 In the most recent right-to-die cases heard by the Supreme Court, the precise legal issue was whether terminally ill patients have a right to be assisted by willing doctors in committing suicide. In one of the cases, Washington v. Glucksberg,137 the question was whether a right to physician-assisted suicide is, like abortion, a fundamental liberty protected by the Due Process Clause. In the other case, Vacco v. Quill,138 the plaintiffs claimed that a ban on physician-assisted suicide violated the Equal Protection Clause. They argued that New York law created an arbitrary and unequal distinction between two classes of terminal patients: those needing heroic care to remain alive, who were permitted to end their lives by ordering the cessation of treatment, and those not receiving heroic care, who were denied the possibility of hastening death through physician-assisted suicide.

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One would have to speculate that the Court did not welcome Glucksberg and Vacco onto its docket. The continuing controversy surrounding Roe v. Wade could not have been far from the Justices’ minds. In Roe, the Court handed down a broad, rule-like opinion aimed at removing from politics a moral issue that engendered passionate, frequently reasonable disagreement. In retrospect, many believe that Roe’s perhaps premature constitutional ruling frustrated the potential capacity of the political process to reach a balance of competing views.139 Surely none of the Justices could have been eager to inject the Court into a comparably thorny debate, at least until more facts were known and the contending positions were more thoroughly tested. Yet two lower courts had forced the High Court’s hand by ﬁnding that state statutes precluding physician-assisted suicide violated the Constitution. Once these decisions were rendered, the Court felt an institutional obligation to determine whether the judicially invalidated statutes were indeed unenforceable. In Glucksberg and Quill, the Court decided by the seemingly remarkable vote of 9-0 that the plaintiffs’ claimed right to physician-assisted suicide should be rejected. Chief Justice Rehnquist wrote the majority opinions in both cases. In Glucksberg, the Chief Justice held that fundamental rights under the Due Process Clause must be limited to those rooted in history and tradition and must be deﬁned narrowly, again by reference to history.140 An asserted general right to physician-assisted suicide could not satisfy this standard. In the Vacco case, the Chief Justice found that New York law did not offend the Equal Protection Clause by permitting terminal patients to hasten their deaths by terminating or refusing medical treatment, while at the same time forbidding physician-assisted suicide.141 Despite the 9-0 votes in both Glucksberg and Vacco, the Court was far from united on many basic issues. Chief Justice Rehnquist’s majority opinions were joined by only four other Justices. Five Justices wrote concurring opinions,142 including Justice O’Connor, who also joined the Chief’s opinion. As a further element of complication, Justice O’Connor’s concurring opinion was not wholly consonant with the majority’s. As critics have noted, the Court’s stated approach to substantive due process in the Glucksberg case was pointedly narrow: the Court will vindicate only those rights speciﬁcally rooted in tradition.143 Signiﬁcantly, however, no Justice claimed that “substantive due process” is an oxymoron, nor did any Justice take an avowedly originalist position. Instead, the Justices joining the Court’s opinion acknowledged that the Due Process Clause “provides

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heightened protection against government interference with certain fundamental rights and liberty interests.”144 This acknowledgement may have been necessary to hold the votes of Justices Kennedy and O’Connor, who in previous cases have denied that the rights protected by due process can be cabined by any rigid formula.145 But the other Justices joining in the majority opinion (Chief Justice Rehnquist, Justice Scalia, and Justice Thomas) have themselves all relied on the Due Process Clause as the source of a substantive prohibition against afﬁrmative action by the federal government.146 Equally signiﬁcant is that, although refusing to recognize a right to physician-assisted suicide, the majority appeared to acknowledge that certain other rights sometimes denominated as “rights to die” actually are protected by substantive due process. Based on dicta (rather than holdings) in previous cases, the majority included a “right to refuse unwanted lifesaving medical treatment” at the end of a list of fundamental rights already recognized under the Due Process Clause.147 The Court made similarly favorable reference to “ ‘a constitutionally protected right to refuse lifesaving hydration and nutrition.’ ”148 In addition, Chief Justice Rehnquist’s opinion in Glucksberg grudgingly acknowledged that the door remained open for challengers claiming that the New York and Washington statutes were unconstitutional as applied to particularized facts.149 The concurring opinions differ from the majority partly in their substantive due process methodology and partly in their greater willingness to anticipate issues that the Court did not yet need to confront. Conspicuously, none of the ﬁve concurring Justices (except for Justice O’Connor, who joined the Court’s opinion) embraced the view that due process decision making should be limited to enforcement of traditionally respected rights. Among the concurring Justices, there was an openness to modestly robust judicial review in substantive due process cases, but with an emphasis on the word modestly. All of the concurring Justices appeared speciﬁcally open to the possibility that a state would violate due process if it were to deny “a mentally competent person who is experiencing great suffering” the right to “control[] the circumstances of his or her imminent death.”150 Just as none of the Justices championed originalism in the right-to-die cases or otherwise attempted wholly to foreclose substantive due process decision making, neither, interestingly, did any portray the Court as bound to act as a forum of ultimate principle in every case. For the concurring Justices as much as for the majority, it mattered enormously that public debate about matters of death and dying was currently under way.151 In an eloquent submission to the Court styled “the Philosophers’ Brief,” Ronald Dworkin and

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ﬁve other leading philosophers argued that democratic ferment was irrelevant to the questions of principle that the right-to-die cases presented.152 Their arguments assumed that the Justices must decide, each for him- or herself, whether the best “moral reading” of the Constitution would identify a right to physician-assisted suicide. If so, the Justices must vindicate that right. As I have meant to emphasize, this argument reﬂects an inﬂuential and in many ways alluring picture of the Court’s proper role. But the Court rejected that conception, and I would say characteristically and rightly so. The Justices’ job is not just to reach personal judgments about how the Constitution, viewed in light of correct moral principles, would best be read as a matter of substantive ideals. The Justices’ role is also, at least as importantly, one of taking into account and sometimes accommodating the reasonable views of others. In the context of the right-to-die issue, the earnestness of the surrounding political discussions reduced and perhaps eliminated the Justices’ comparative advantage in formulating relevant principles and bringing those principles to bear on constitutional issues. The Justices’ role, moreover, is not exclusively one of truth telling about the meaning of the Constitution (as seen in their best personal lights), but is sometimes one, even predominantly, of carrying on a necessarily cooperative project of implementing the Constitution. Success in that project may require knowledge of facts as well as values. At the time of its decisions, the Court had little of the information that might have helped most to inform a sound decision. Conspicuously lacking were reliable studies concerning the impact of rules permitting assisted suicide on the terminally ill, on their doctors and families, on organizations funding and providing health care, and on public attitudes toward life, death, and dying. Under the circumstances, the Justices correctly apprehended that they would have been unfaithful to their roles if, trying to do too much too fast with inadequate resources, they prematurely spoke the truth as they personally saw it and crafted bad doctrine that frustrated reasoned debate and democratic experiment.

City of Boerne v. Flores Although the right-to-die cases represent a characteristic approach of the Rehnquist Court, they do not exhibit the current Court’s only mode of proceeding. To speak very roughly, the Rehnquist Court is cautious and deferential in deﬁning and enforcing individual rights, but much more assertive in matters of constitutional federalism. Prominent among the Court’s recent efforts to protect the prerogatives of state and local governments by restrict-

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ing national authority153 is City of Boerne v. Flores,154 involving the meaning of Congress’s power to “enforce” the Fourteenth Amendment. Especially in Section 1, the Fourteenth Amendment establishes some of the Constitution’s most important individual rights, including the guarantee that no state shall deprive any person of due process or equal protection. The amendment then concludes with Section 5, which states that Congress shall have the authority to “enforce, by appropriate legislation, the provisions of this article.”155 As is plain on the surface, questions about Section 5 power are separation-of-powers questions involving the intersection between congressional and judicial authority to deﬁne and enforce Fourteenth Amendment rights. But issues of “enforcement” of the Constitution against state and local governments also implicate federalism. In an important but cryptic and confusing decision, the Warren Court had once suggested that Congress, acting pursuant to Section 5, had the power to expand, but not contract, the judicially deﬁned bounds of enforceable constitutional rights.156 But this “ratchet” theory was not necessary to the decision, and it had been undermined—though never decisively rejected— by subsequent cases.157 By 1997, the question of Congress’s Section 5 power plainly needed fresh consideration in City of Boerne v. Flores. Boerne arose against the background of the Supreme Court’s earlier decision in Employment Division v. Smith,158 which cut back sharply on previously recognized rights to the “free exercise” of religion. (Although the Free Exercise Clause appears in the First Amendment, the Court has held that it was made applicable against the states by the Fourteenth Amendment; as a result, free exercise rights are eligible to be “enforced” by Congress under Section 5.)159 Before Smith, the Court had ruled that statutes that signiﬁcantly burdened religiously motivated conduct were unconstitutional unless necessary to promote a compelling governmental interest.160 Smith rejected this formula, which effectively required the courts to conduct multifactor, case-by-case inquiries into whether the government was constitutionally obligated to exempt religious believers from otherwise applicable requirements. Under Smith, Free Exercise Clause protection generally extends only against laws that target religious practices for distinctive prohibition; neutral laws of general applicability (such as the one in Smith generally forbidding the use of the drug peyote) may be enforced even in circumstances where they restrict religious exercise (such as the ingestion of peyote as a religious sacrament by members of the Native American Church).161 Smith’s pruning of free exercise rights drew sharp and widespread criticism. Constitutional scholars mounted attacks, as did representatives of a

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broad coalition of religious organizations. By overwhelming majorities, Congress responded by invoking its Section 5 power and enacting the Religious Freedom Restoration Act (RFRA).162 RFRA purported to restore by statute what Congress took to be the pre-Smith doctrinal structure: “substantial burdens” on the exercise of religion could not be sustained unless shown to be the least restrictive means of advancing a compelling government interest.163 In Boerne, the Court adopted a narrow view of Section 5 and held RFRA unconstitutional. In an opinion authored by Justice Kennedy and joined by ﬁve other Justices,164 the Court rendered two doctrinally important pronouncements. First, and most fundamentally, the “enforcement” power given by Section 5 does not encompass a power to “alter[] the meaning” of constitutional guarantees.165 Second, although Congress can provide remedies for violations of judicially deﬁned rights and can enact statutes reasonably aimed at preventing violations, remedial and preventive legislation must be “congruen[t]” and “proportional[]” to the violations that it aims to remedy.166 Since the Court’s watershed ruling in McCulloch v. Maryland in 1819,167 exercises of congressional authority normally are tested only for whether they are rationally adapted to realize permissible ends. Subsequent decisions indicate that Boerne’s congruence and proportionality test will be substantially more searching.168 From the perspective of the Justices, Boerne looks to have been a relatively easy case, despite its high signiﬁcance for both congressional and judicial power. Even the dissenting opinions did not contest the majority’s interpretation of Section 5 and its speciﬁcation of the line separating judicial from legislative authority. The three dissenting Justices instead argued that Smith—the decision that RFRA effectively aimed to displace—should itself be reconsidered.169 Several factors appear to support the Court’s conclusion that Congress cannot “alter[] the meaning of” constitutional guarantees.170 First, the legislative history of the Fourteenth Amendment suggested that Congress’s enforcement power was not originally understood as a power to deﬁne and enforce against the states rights not already established by the Constitution.171 Some of the Justices profess to regard the original understanding as presumptively dispositive; all view it as at least relevant to constitutional analysis. Second, recognition of a congressional power to deﬁne substantively enforceable constitutional rights would have worked a potentially signiﬁcant diminution of the Court’s central role in interpreting and implementing constitutional norms. Almost without doubt, the Court believes that there is

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good reason to have matters of ultimate constitutional principle resolved by a deliberative institution (itself) relatively free from the pressures of electoral politics, rather than by Congress. Finally, the decision in Boerne both reﬂected and helped to advance a vision of constitutional federalism. The Court’s holding protects state and local governments from the dictates of the national government about when, for example, they should bear the cost and inconvenience of exempting religiously motivated conduct from otherwise applicable laws. Despite (or perhaps because of) the Court’s ﬁrm and apparently unanimous conclusion that Congress cannot “alter[] the meaning” of constitutional guarantees, the analysis in Boerne moves too quickly and, in its haste, never really confronts the deepest issue that the case presents—which is also a question about the proper scope of its own power. As Michael McConnell has pointed out, the Court contemplates only two possible roles for Congress under Section 5.172 The ﬁrst is that Congress might “alter[] the meaning” of constitutional guarantees. The second is that Congress might provide remedies for violations identiﬁed under judicially developed tests. Omitted is any serious consideration of what McConnell terms an “interpretive” conception of Congress’s Section 5 authority.173 Under this view, in cases of reasonable disagreement about what the Constitution means, and especially when the Supreme Court has previously adopted a test that fails to enforce constitutional norms to their full conceptual limits (as it very arguably had done in Smith),174 Congress would be permitted to substitute its reasonable judgment for that of the Court. This interpretive conception would not threaten the Court’s position as ultimate constitutional decision maker. The Justices would retain the last word on whether Congress’s statutorily prescribed approach lay within the bounds of reasonable interpretation or implementation. In cases of reasonable disagreement, however, Congress’s power to “enforce” the Constitution would encompass a power to interpret and implement the Constitution through appropriate legislation. Much commends this “interpretive” approach. Unlike broader claims of congressional power to create rights by legislation, the notion that Congress has a limited interpretive power generally coheres with the legislative history of the Fourteenth Amendment.175 More vitally, an interpretive conception promotes interests in the fair allocation of political power. Insofar as genuinely reasonable disagreement is concerned, and insofar as congressional majorities have assumed responsibility to deliberate expressly about the precise question in issue, why should the Court’s views always prevail? Why should Congress not have a role—albeit a limited one—in cases in which

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democratic majorities want broader protections for constitutionally based liberties than the Court has provided? Because the Justices did not address this question directly, their response can only be inferred, but inference is not difﬁcult. For at least ﬁve of the Justices, the question in Boerne was not whether democratic majorities should receive deference, but whether the Court should defer to Congress, which enacted RFRA, or to the institutions of state and local democracy to which RFRA attempted to dictate. The national majority will not always be the local majority; and ﬁve Justices seem strongly committed to the view that because local democracy is closer to the people, it is likely to be more responsive and accountable and therefore better. Taken on its own terms, the ideal of effective, accountable state and local democracy is an attractive one, but it is also an abstraction that sporadic judicial invalidations of congressional legislation can do little to realize effectively. If Boerne stood in isolation, the federalism-based supporting argument would therefore be quixotic. In fact, however, Boerne does not stand alone. As I discuss more fully in Chapter 5, it instead reﬂects a Court that is at least ﬂirting with attempting a revolution in constitutional federalism. This is a highly precarious enterprise that is likely, in the long run, to raise deep problems of national democratic acceptability. Among other things, Boerne (like other cases in the incipient federalism revolution) arose against a historical background—including but not limited to the ﬁasco of the so-called Lochner era176—revealing peculiar difﬁculties in crafting workable doctrines to enforce federalism values. For present purposes, however, another concern is equally fundamental. As much with respect to issues of constitutional federalism as with respect to issues of individual rights, reasonable disagreement is possible. In the context of possible reasonable disagreement about the pertinence of constitutional norms, robust judicial review is most strongly justiﬁed when governmental ofﬁcials have acted without deliberating thoughtfully and responsibly about issues of constitutional principle. When Congress legislates under Section 5 of the Fourteenth Amendment, this strongest rationale for nondeferential judicial review generally does not apply. By invoking Section 5, Congress—the one institution in which all the nation’s people are represented—assumes a responsibility to determine, responsibly and deliberatively, how the Constitution should be understood or enforced. The Supreme Court should be especially willing (rather than, as Boerne suggested, especially unwilling) to defer to Congress’s reasonable judgments in this context.

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At least since Marbury v. Madison,177 defenders of robust judicial review have argued that more overtly political institutions should not be trusted to deﬁne their own powers. This argument is forceful but not unproblematic. Similar concerns arise when the Supreme Court must deﬁne and protect its own constitutional prerogatives. Even in such cases, the Court’s traditions and deliberative protocols establish it as the institution best suited to make thoughtful determinations not unduly inﬂuenced by short-term pressures and narrowly political self-interest. Still, no less than other institutions, the Court can be gripped by enthusiasms and is not immune from defensive impulse. The ancient question retains its capacity to unsettle: Who will guard the guardians? The Constitution is not a charter for the courts alone; it is the collective heritage of all the people of the United States. Responsibility for implementing the Constitution can, should, and indeed must be shared. The terms of sharing should be broad enough to command judicial deference to Congress’s reasonable interpretive judgments under Section 5 of the Fourteenth Amendment.

Some Realism about Supreme Court Heroism As I emphasized earlier in this chapter, not all extraordinary cases—those requiring the Court to address questions of ultimate constitutional principle or develop or reconsider implementing doctrinal frameworks—are of potentially enormous signiﬁcance. Taken in the aggregate, the Court’s decisions in vast numbers of lower visibility cases, some of which are genuinely path breaking within their limited domains, are at least as important. Nonetheless, the subcategory of extraordinary cases dealing with broadly salient, highly charged issues rivets the attention of theorists as well as the public and frames many of the largest questions about the judicial role. For several generations, Brown v. Board of Education178 has exempliﬁed the Supreme Court at its best. As Brown testiﬁes, our constitutional tradition sometimes authorizes the Supreme Court to play a heroic role in deﬁning previously unrecognized constitutional rights. But while moral heroism is permitted, it is seldom required. Nor should this be a cause for regret. The Justices are not Hercules, nor should they pretend to be. Even and perhaps especially in extraordinary cases of high public importance, the Justices must ﬁnd grounds for reasonable accommodation among themselves, and they should attend to the democratic acceptability of the decisions that they

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reach. The Justices must recognize that the project of implementing the Constitution is a shared one. Information matters. For the most part, the Court should not move too far, too fast. In thinking about the Supreme Court’s role, theories that develop a judicial ideal can sometimes be helpful, but a dose of realism is vital too. No less than the rest of us, the Justices are likely to be creatures of their time. Looking backward at history, we sometimes regret the Justices’ unwillingness, as we see it, to assume a greater responsibility for the justice of prevailing social practices. To speak personally, I feel pain each time I reread the Court’s opinion in Plessy v. Ferguson,179 which upheld the constitutionality of race-based segregation under a regime of “separate but equal.” A part of me insists that the Justices must have apprehended the injustice that they ratiﬁed; cravenness alone explains the result; the Justices should have shown more courage. But then as I reﬂect further, I tumble into uncertainty about what Justices living in a segregated society in 1896 actually may have thought.180 In any event, in the sweep of history, there are plain and painful instances in which the Court’s attempts at moral, political, or even constitutional heroism proved colossal failures, and in which more modesty and deference would have served the Constitution better. Prior to the Civil War, the Court held that the Constitution protected the institution of slavery against federal legislative interference.181 For a period of decades culminating in the 1930s, the Court kept up a rearguard defense of common law liberty and property rights that stymied democratic experiment and ultimately threatened to wreck the New Deal.182 If we ask the Supreme Court to play a relatively robust part in promoting constitutional justice, it should not be in the expectation that the Justices will prove to be moral or political heroes distinguished by prophetic vision. As empirical studies have shown, the Court has seldom if ever stood ﬁrm for very long against determined opposition by current political majorities.183 In addition, some the Court’s boldest stands have been substantively misbegotten. The claim and aspiration should be more modest. By according the Court substantial ﬂexibility in extraordinary cases, and especially in extraordinary cases of potentially large signiﬁcance, we may hope to achieve slightly more constitutional justice than we otherwise would have achieved, slightly sooner than we otherwise would have achieved it, without too much damage to the interest in a reasonably fair and democratic allocation of political power.

CHAPTER

5 Doctrinal Tests and the Constitution

In one subcategory of extraordinary cases, the Supreme Court directly considers questions of ultimate constitutional meaning—for example, does commercial advertising come within the freedom of speech protected by the First Amendment? In an analytically distinct subcategory, the Court propounds tests to identify violations of recognized rights or other constitutional norms. For example, having ﬁrst held that commercial advertising came within the general coverage of the First Amendment,1 the Court later established a relatively precise formula to determine whether particular restrictions on commercial advertising are permissible.2 Some extraordinary cases of course require the Court both to specify the meaning of a constitutional norm and to propound an implementing framework. Although an analytical distinction can often be drawn between the constitutional norms that doctrinal tests protect and the tests themselves, the Court’s opinions seldom identify a process of norm speciﬁcation distinct from that of doctrinal implementation. In the extraordinary cases in which doctrine gets made, it is more typical for the Court simply to formulate and apply a test. As a result, constitutional tests provide a valuable window on the Court’s understanding of its own role, and of the limits of that role, within the constitutional scheme. For better or for worse, it is largely through the formulation (and subsequent application) of tests that the Court discharges its responsibilities for constitutional implementation. In keeping with the nature of its subject (doctrinal tests), this chapter is long and somewhat sprawling; readers without a strong background in constitutional doctrine may want either just to skim it or possibly even to skip it entirely. Although I believe that full understanding of the Court’s role requires immersion in details, the chapter’s main thematic contribution is eas76

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ily summarized: In developing constitutional tests and other doctrinal formulas, the Supreme Court must struggle to meet challenges that neither the originalist nor the forum-of-principle model can adequately explain. After looking at history (among other considerations) to identify underlying values, the Court must turn to the present and future to determine what kinds of doctrinal protections are necessary, feasible, and appropriate. As it does so, the Court must go beyond the abstract moral principles rightly celebrated by the forum-of-principle model; the Justices must draw on psychology, sociology, and economics to craft doctrines that will work in practice, without excessive costs, and that will prove democratically acceptable. This chapter begins with a catalogue of seven kinds of tests that the Court frequently employs in enforcing constitutional guarantees of individual rights (such as “the freedom of speech” and “the equal protection of the laws”).3 I then consider the relative prominence of the various kinds of tests and offer speculations about why the Court makes greater use of some and lesser use of others. Finally, at the end of the chapter, I offer brief remarks on the Court’s efforts to develop doctrinal tests to enforce structural norms involving federalism. My assumption throughout the chapter is that the Court’s choice of a test always occurs in light of judgments of constitutional meaning, but that constitutional meaning seldom dictates with full precision what the doctrinal test or formula ought to be. The Court must make a further, practical judgment about the appropriate judicial role in implementing the Constitution.

A Catalogue of Constitutional Tests There is no canonical list of the kinds of tests employed by the Supreme Court to deﬁne and protect constitutional rights. The list that follows is a bit of a hodgepodge. It does not pretend to completeness, nor does it distinguish systematically between tests that trigger particular types of judicial scrutiny (such as a test singling out statutes that discriminate on the basis of race for skeptical analysis) and tests that deﬁne the content of particular types of review (such as “strict scrutiny,” which almost always yields the conclusion that a statute is unconstitutional, and “rational basis” review, which nearly all statutes survive).4 Among my reasons for not sharply differentiating tests that trigger review from tests that prescribe a form of substantive scrutiny, I believe that this distinction is less sharp than is sometimes thought. More-

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over, division of constitutional tests into two basic categories may tend to minimize the options available to the Supreme Court in protecting constitutional values. One kind of test identiﬁes statutes, regulations, or policies as absolutely unconstitutional based on their content. An example is the rule that the government may not compel prayer.5 A statute violating this rule is per se unconstitutional; no assessment of the government’s interest in enacting the statute is called for.

FORBIDDEN-CONTENT TESTS

Suspect-content tests mark certain kinds of statutes as presumptively, but not necessarily, unconstitutional. A prominent example is the rule that race-based classiﬁcations are permissible only if necessary to serve a compelling governmental interest.6

S U S P E C T- C O N T E N T T E S T S

B A L A N C I N G T E S T S In the most paradigmatic kind of balancing test, the Court explicitly purports to assess competing considerations in order to determine whether a challenged statute or other governmental action is constitutionally permissible.7 Alternative means by which the government might achieve its ends may also be considered.

Non-suspect-content tests call for judicial scrutiny pursuant to standards reﬂecting strong presumptions of constitutional validity. Perhaps most familiar is the “rational basis” test applied to gauge the constitutional permissibility, under the Due Process and Equal Protection Clauses, of legislation that neither classiﬁes on “suspect” lines nor implicates a “fundamental” right. A relatively typical formulation is as follows:

N O N - S U S P E C T- C O N T E N T T E S T S

In areas of social and economic policy, a statutory classiﬁcation that neither proceeds along suspect lines [e.g., race, national origin, religion, or alienage] nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classiﬁcation. . . . This standard of review is a paradigm of judicial restraint. . . . [A] legislative choice is not subject to courtroom fact-ﬁnding and may be based on rational speculation unsupported by evidence or empirical data.8

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Some constitutional tests focus not on the explicit content of a statute or policy, but on its effects. For example, the Court has sometimes applied effects tests to statutes that impose high costs on those appealing criminal convictions and other legal judgments of especially large consequence.9 Insofar as such statutes have the effect of precluding appeals by the poor, they may be deemed to violate the Due Process and Equal Protection Clauses. EFFECTS TESTS

Where purpose tests apply, legislation or other governmental policies are invalid if developed or applied for constitutionally illegitimate reasons.10 For example, the Court has held that legislation violates the Equal Protection Clause if it is enacted for the purpose of harming a politically unpopular group, such as homosexuals. PURPOSE TESTS

A P P R O P R I A T E D E L I B E R A T I O N T E S T S A ﬁnal kind of constitutional test goes beyond narrow, purpose-focused inquiries and asks more generally whether a challenged statute or policy resulted from fair or appropriate deliberative processes.11 For instance, the Supreme Court has suggested that the permissibility of legislation discriminating on the basis of gender depends at least partly on whether the legislature relied on unthinking stereotypes.12

Combinations and Permutations The seven kinds of constitutional tests that I have distinguished are not always, or perhaps even typically, stark alternatives to one another. On the contrary, many doctrines incorporate a mix of tests. An example comes from United States v. O’Brien,13 which established a test for determining the constitutionality under the First Amendment of statutes that regulate conduct, not speech, but nevertheless interfere with the communication of ideas—for instance, by banning the burning of ﬂags or draft cards. Under O’Brien, a restriction on so-called expressive conduct will be upheld only “if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”14 Scrutiny under the O’Brien formula is triggered by an effects test; only

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when a prohibition against conduct (such as ﬂag burning) has the effect of burdening expressive activity does the First Amendment even come into play. The O’Brien test presupposes a negative result to a suspect-content test: the challenged statute must not discriminate against expressive activity on the basis of content, or strict scrutiny would apply. O’Brien also calls for what might roughly be called a “balancing” assessment15 of whether the challenged statute advances an “important” governmental interest and whether “the incidental restriction” on First Amendment freedoms is no greater than necessary.16 In addition, the query whether the government might have achieved its end with less of an adverse impact on protected interests may serve as a surrogate for inquiry into governmental purpose. If the government could have achieved its goal without trenching on constitutional values, but chose to do so anyway, there is reason to suspect that the decision was purposeful, not innocent.17 Even when they are not explicitly combined, the tests that I have distinguished can function as complements to one another. A governmental action may be held invalid when it fails any of a number of tests. For example, a statute forbidding “potentially pregnant persons” to engage in certain hazardous activities would trigger inquiry under a suspect-content test: Is the statute facially discriminatory against women? Even if that question were answered in the negative, the statute would invite scrutiny under a purpose test: Was the legislation passed for the purpose of harming women? An appropriate deliberation test might also apply: Did the legislature act on the basis of stereotyped assumptions? Alternatively, a statute or policy may be upheld unless it fails more than one test. For example, political gerrymanders will apparently survive judicial scrutiny unless they have both the purpose and the effect of systematically degrading the votes of one political party.18 Despite the possibility of combinations and permutations, distinguishing among seven kinds of constitutional tests remains useful. Among other things, viewing them as distinguishable invites questions about the different tests’ relative advantages and disadvantages. Examination of the Supreme Court’s tendency to prefer particular kinds of tests may also provide a valuable measure of how the Court conceives its functions and capacities—especially if one believes, as I intend to argue, that constitutional meaning frequently fails to determine the precise form that doctrine ought to take. The Court must exercise practical, occasionally tactical judgment.

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The Relative Prominence of Different Kinds of Tests To attempt to chart the precise, comparative signiﬁcance of different types of constitutional tests would be a heroic agenda, which I make no pretense of undertaking. In addition, I repeat that the tests that I have identiﬁed by no means exhaust the universe of judicial standards; my list reﬂects recurring formulations from First Amendment, equal protection, and due process doctrine much more than it does mechanisms used to enforce provisions of the Bill of Rights that guarantee fair criminal procedure, for example. I want, nonetheless, to establish four general points that, in turn, support a single, overarching thesis. The ﬁrst of the general points is that, although some commentators have characterized the current era of constitutional law as an “age of balancing,”19 balancing tests have relatively less inﬂuence within constitutional doctrine than is often thought. Second, forbidden-content, effects, and appropriate deliberation tests play relatively small roles in contemporary doctrine. Third, suspect- and non-suspect content tests dominate large, important areas of constitutional law. Fourth, contemporary constitutional doctrine reﬂects a larger concern with the legitimacy of governmental purposes than is often appreciated. Many doctrines prescribe invalidation of actions taken for forbidden reasons; other tests function as surrogates for direct inquiries into governmental purposes. My general thesis is that the best explanation for the relative prominence of various kinds of tests relies heavily on the phenomenon of reasonable disagreement, by which I mean a lack of consensus or convergence that results from the absence of shared premises, gaps in current knowledge, and the limits of human reason. Reasonable disagreement—which much of the best recent political theory identiﬁes as framing among the most difﬁcult challenges confronted by liberal democracies20—affects the Court’s thinking about doctrinal tests in at least three ways that writers in the originalist and forum-of-principle schools have generally ignored. First, reasonable disagreement may make it difﬁcult for the Justices to arrive at a single, shared conclusion about how the Constitution should be construed or implemented. In such circumstances, the Justices may need to compromise among themselves. Second, the Justices sometimes apprehend that reasonable disagreement about constitutional issues provides a reason for judicial review to be deferential. If reasonable people could differ, by what right does the Court impose its own views? As I argued in the Introduction, our tradi-

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tion of judicial review is relatively robust, founded on the notion that even in cases of reasonable disagreement some judgments may be better than others. To say that reasonable people can differ is not to say that there is no right or wrong of the matter, or that there is no such thing as better and worse judgment. Nevertheless, there may be circumstances in which the Court is especially doubtful of its own judgment, or believes that the costs of stringent review would be too great (by leading to excessive litigation, for example), or concludes that repeated exercises of independent judicial judgment would prove democratically unacceptable. Third, in devising doctrinal tests, the Court must consider the likelihood that any particular kind of test would give rise to further, reasonable disagreement at the point of application. In light of the aim of law to provide clear guidelines for human conduct, the Court should typically—although not always—prefer more over less determinate formulas.

Balancing Tests in Constitutional Law Some critics have lamented what they perceive as the dominant, even pervasive role of balancing tests in constitutional law.21 Their descriptive claim is only partly correct. To assess the signiﬁcance of balancing tests, it is necessary to distinguish two types of balancing. One is an aspect of the process by which the Court crafts doctrine in the ﬁrst instance. The other is a doctrinal test to be applied by lower courts and by the Court itself in resolving individual cases.22 Supreme Court judgments about which kind of test to employ typically require the kind of multipart assessment that the metaphor of “balancing” reﬂects. Such an assessment becomes necessary whenever, after the identiﬁcation of a constitutional norm or value, a further question remains about how that norm or value is best implemented in light of contingent empirical conditions, institutional competencies and pathologies, and predictive judgments about the effects of alternative tests. Maryland v. Wilson,23 which involved the circumstances in which police can require passengers to exit a vehicle during a routine trafﬁc stop, illustrates the point. The case arose under the Fourth Amendment’s prohibition against unreasonable searches and seizures. As viewed by the Court, the question was whether the reasonableness of exit requests should be decided BALANCING IN THE SHAPING OF DOCTRINAL TESTS

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under a case-by-case balancing test, or whether all requests to passengers to exit a stopped vehicle should be deemed categorically reasonable and therefore constitutionally permissible. To resolve this question, the Court needed to make a number of assumptions about likely consequences and, having done so, to reach a multifactored assessment concerning the kind of test that was most appropriate. In Wilson, the Court selected a bright-line rule permitting requests for passengers to get out of a vehicle; to constrain police discretion would subject ofﬁcers on the scene to too much risk, the Justices concluded. By contrast, in many other contexts under the Fourth Amendment, the Court has opted for case-by-case, totality-of-the-circumstances assessments to determine when searches and seizures are “reasonable.”24 But the Fourth Amendment does not make the choice between these two approaches, nor does the process of constitutional interpretation furnish any controlling algorithm. No member of the Court, not even the Justices most drawn to “originalism,” suggested otherwise. “Balancing” competing considerations, the Court determined—and there is no irony in this—that the reasonableness of ordering passengers to exit stopped vehicles should be determined pursuant to a per se rule, not a case-by-case balancing process.25 It is among the defects of the originalist and forum-of-principle models that they fail to illuminate (or sometimes even to acknowledge) the necessity for practical, implementing judgments of the kind that the balancing metaphor identiﬁes. B A L A N C I N G W I T H I N C O N S T I T U T I O N A L D O C T R I N E Balancing also has a role within a signiﬁcant number of doctrinal tests. To cite just one example, the leading case of Mathews v. Eldridge26 prescribes a balancing inquiry to determine the requirements of procedural due process—whether, for example, a governmental employee can be ﬁred without a hearing; whether the hearing, if there is one, must precede the termination or can come afterwards; whether there is a right to be represented by counsel; and so forth. I also classify tests calling for so-called midlevel scrutiny, in which the court asks whether a statute is substantially related to an important state interest, as balancing tests. Any claim for the pervasive inﬂuence of judicial balancing could not, however, rest solely on tests such as these. That claim depends on a broader characterization of balancing—one that encompasses suspect-content and non-suspect-content tests.27 There is undoubtedly a sense in which these tests could count as balancing tests. Both require courts to assess whether a

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statute ought to be upheld, in light of the governmental interests that it serves, despite its impact on constitutionally protected values. Nonetheless, more illumination is lost than gained by failing to distinguish relatively evenhanded balancing tests from suspect- and non-suspect-content tests. Even if something approaching the form of balancing is observed, suspectcontent tests that are “strict in theory,” such as that applied to race-based discrimination, almost invariably prove “fatal in fact.”28 Conversely, judicial scrutiny under rational basis review is typically so deferential as to amount to a virtual rubber stamp.29 C R I T I C I S M A N D P R A C T I C E The limited number of doctrinal tests that the Court has construed to call for serious, nondeferential balancing reﬂects at least two distinct anxieties—one misplaced, the other not. One prominent criticism challenges the coherence of balancing methodologies.30 According to this critique, the factors that are supposed to be “weighed” against each other are frequently “incommensurable”;31 it makes no more sense to ask whether a right is outweighed by a governmental interest than to ask whether a rock is heavier than a line is long.32 This strong criticism is mistaken if “balancing” is conceived, as it should be, as a metaphor for (rather than a literal description of) decision processes that assess the relative signiﬁcance of diverse factors. Understood in this way, the term balancing does not signify that decision making proceeds by reducing all relevant considerations to a single metric, assigning them quantitative values, and then weighing them against one another with the precision of a scale.33 If balancing is viewed as a metaphor for multifactor decision making, the “incommensurability” objection becomes either too strong or too weak.34 It is too strong to be credited—because too inconsistent with the deepest assumptions of practical reasoning—if it suggests that, when different kinds of considerations bear on a decision, there can be “no basis in our knowledge of value” to say that one decision is rationally preferable to another.35 In contrast, if the claim allows that rational “comparability” is possible (even if “commensurability,” in the sense of measurement according to a single metric, is not), then it is too weak to show that balancing should be abandoned as an approach to legal or practical decision making. Indeed, as I have argued above, it is hard to imagine how a multifactor decision process (such as “balancing” is intended to signify) possibly could be replaced in the deliberations through which the Supreme Court frames doctrinal tests to implement recognized constitutional values.

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It is a separate question, however, whether multifactor balancing tests may not tend to produce an excessive number of reasonable disagreements at the stage of application. Critics have suggested that reasonable disagreement must frequently be expected when doctrinal tests call for serious, nondeferential balancing.36 As a result, they have argued, legislatures and executive ofﬁcials will be unsure of the limits of their authority; citizens will not know their rights; and the burdens of litigation will increase. In light of considerations such as these, Justice Scalia has inveighed against balancing tests and comparably open-ended standards on the ground that the “rule of law” requires a “law of rules.”37 Taken in its strongest form, this claim is exaggerated. The common law, for example, is not a law of rules in Justice Scalia’s sense, but may nonetheless satisfy the functional desiderata of the rule of law.38 Nevertheless, concerns about notice, predictability, and excessive litigation cannot be dismissed cavalierly. Under conditions of widespread reasonable disagreement, doctrines that call for serious, case-by-case judicial balancing are frequently less than optimal.39

Less Inﬂuential Tests Forbidden-content tests, which provide clear and categorical notice of what the Constitution forbids and requires, reﬂect many people’s ideals of the form that constitutional rules ought to take. Yet while forbidden-content tests are by no means insigniﬁcant in constitutional law, their scope is less than might be expected. Most of the doctrinally prominent tests under the First Amendment and the Equal Protection Clause, for example, are suspect- rather than forbidden-content tests: a statute that regulates speech based on content, or that discriminates facially on the basis of race, is not per se unconstitutional (as it would be if a forbidden-content test applied), but only presumptively so; the statute may be upheld if necessary to serve a compelling governmental interest.40 For reasons involving actual or potential costs, the Court hesitates to say that the government may never enact suspect legislation, no matter how great the perceived emergency. Its thinking is more practical or prudential than historical or categorical. FORBIDDEN-CONTENT TESTS

Modern constitutional doctrine places relatively little reliance on effects tests—at least when the term is used to refer to tests that call for heightened judicial scrutiny of statutes that have an adverse impact EFFECTS TESTS

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on minority groups or on constitutionally protected interests in cases in which suspect-content rules do not apply. The central equal protection case is Washington v. Davis,41 decided in 1976, which held that statutes and regulations do not trigger strict judicial scrutiny merely because they impose disproportionate burdens on racial or other minorities.42 On its facts, Washington v. Davis ruled that the District of Columbia bore no special burden to justify a test for prospective police ofﬁcers on which the failure rate for blacks was roughly four times greater than the failure rate for whites. More generally, the Court has held that statutes that reach a broad range of prohibitable conduct are subject only to deferential review even if they have the “incidental” effect of burdening constitutional rights, such as the right to free exercise of religion. Effects tests have not vanished entirely. To take perhaps the most prominent example, restrictions on conduct become subject to First Amendment scrutiny under the test of United States v. O’Brien43 insofar as they have the effect of burdening expressive conduct. In addition, the Court has still not formally overruled the much maligned test for Establishment Clause violations introduced by Lemon v. Kurtzman,44 which holds statutes invalid if they have the primary effect of promoting religion. Signiﬁcantly, however, the current status of the Lemon test is in doubt,45 and there has even been some uncertainty concerning the kind of effect in burdening expressive activity that is necessary to trigger First Amendment scrutiny under O’Brien.46 The reason for the Court’s chariness of effects tests seems clear: the Justices believe that for courts to invalidate every governmental act that incidentally infringes constitutional rights or disproportionately burdens minorities would unduly burden the promotion of legitimate governmental interests.47 And, in circumstances of reasonable disagreement, for courts to engage in open-ended balancing assessments of all acts that incidentally affect constitutionally protected interests would invite too many costly inquiries that are too little determined by legal rules. The Court’s particular conclusions are debatable, but there should be little doubt about the Justices’ entitlement to weigh considerations such as these in framing constitutional doctrine. Apparently for similar reasons, the Court only rarely employs appropriate deliberation tests. Despite arguments by so-called republican revivalists that the Constitution aims to create a deliberative democracy,48 in which the legislature defaults on its obliga-

A P P R O P R I AT E D E L I B E R AT I O N T E S T S

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tions if it fails to give careful, sympathetic consideration to the interests of all groups, the quality of governmental deliberation—or indeed its absence—is generally held irrelevant under most constitutional provisions, including the Due Process, Equal Protection, and Takings Clauses.49 This generalization does not lack exceptions. As noted above, the government may apparently differentiate based on gender only if its deliberation is thoughtful, not corrupted by stereotypes. In another set of exceptional cases, current doctrine sometimes calls for inquiry into the quality of governmental deliberations when the government takes race into account for inclusionary reasons. Under Justice Powell’s still controlling opinion in Board of Regents v. Bakke,50 educational institutions may consider race in making individualized judgments about applicants’ capacities to contribute to “diversity” in their student bodies.51 But while race can count as a “plus,”52 it apparently must not count too heavily. The Court has taken a similar approach to the question whether legislatures can deliberately create so-called majority-minority voting districts in which traditional minority groups constitute more than half of the electorate. According to the Court’s recent decisions, legislators may treat race as a relevant factor, but not as the “predominant” consideration in drawing district lines.53 When the doctrinal norm is conjoined with its exceptions, the pattern seems clear. The Court generally eschews inquiry into the quality of governmental deliberations, but makes exceptions in some cases in which governmental decision making involves reliance, ostensibly for noninvidious purposes, on considerations that the Court regards as morally suspect. Possibly because of the social salience of race and gender, the Court thinks it crucial that norms forbidding race and gender discrimination should not go signiﬁcantly underenforced, and it appears willing to bear the costs of especially difﬁcult and sensitive inquiries to minimize underenforcement.54 Sometimes for better and sometimes for worse, the Court is much more serious about the protection of some identiﬁed constitutional values than it is about others.

Suspect- and Non-Suspect-Content Tests Suspect-content tests, especially when deployed in tandem with non-suspect-content tests, are hugely inﬂuential in implementing the Equal Protection and Due Process Clauses. Statutes or policies that classify on suspect bases or infringe on fundamental rights are strongly presumptively uncon-

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stitutional; they can be upheld only if necessary to serve a compelling governmental interest.55 By contrast, statutes and policies outside the suspect category enjoy a robust presumption of constitutionality under traditional rational basis review.56 Suspect-content tests also play a large role under the First Amendment. Outside a few delimited categories,57 regulations based on the content of speech trigger the most exacting judicial scrutiny.58 John Ely offers the most plausible explanation for the Court’s central reliance on suspect-content tests in equal protection and First Amendment law—and, relatedly, for the highly deferential review accorded under the Equal Protection and Due Process Clauses to nonsuspect statutes, regulations, and policies.59 Ely’s explanation links concerns about reasonable disagreement in constitutional law with claims about when such disagreements should be resolved by democratic processes. Roughly summarized, Ely’s theory holds that courts, in interpreting the Constitution’s more open-ended provisions, should generally defer to the judgments of politically accountable decision makers.60 Reasonable people will disagree about whether, for example, legislation beneﬁting some groups and harming others is fair or unfair; no reliable method exists for resolving the moral disputes;61 and, in such circumstances, the basic commitment of the American Constitution is to permit decision by democratic majorities and their elected representatives.62 Given the Constitution’s central commitment to political democracy, the crucial role of the courts is not to secondguess the substantive decisions of the political branches but to ensure the integrity of the democratic process.63 In performing this function, Ely’s theory holds, courts should strictly scrutinize statutes of the kinds most likely to trigger suspect-content tests under current doctrine.64 Somewhat more particularly, courts should strictly scrutinize statutes that discriminate against “discrete and insular” minorities, since statutes of this kind are likely to reﬂect prejudice that renders the democratic process untrustworthy.65 Under Ely’s “representation-reinforcing” approach, courts should also apply strict scrutiny to statutes that restrict the ﬂow of speech and ideas on which political democracy depends and that otherwise clog the channels of political change.66 In suggesting that Professor Ely’s theory helps to explain the Court’s widespread utilization of suspect- and non-suspect-content tests under the Due Process and Equal Protection Clauses and of suspect-content tests under the First Amendment, I do not mean to claim that the Court has accepted either his assumptions or his prescriptions on a global basis. With respect to his as-

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sumptions, the Court—rightly, in my view—at least sometimes rejects the idea that there can be no “right” (or at least better and worse) answers to questions of substantive constitutional justice, including those arising under what Ely characterizes as relatively open-ended constitutional provisions such as the Equal Protection Clause. With respect to prescriptions, many important constitutional doctrines are impossible to reconcile with Ely’s theory.67 These include doctrines that subject some types of legislation (such as prohibitions against abortion) to searching judicial scrutiny on “substantive due process” grounds,68 that apply strict judicial scrutiny to afﬁrmative action programs beneﬁting minority groups,69 and that provide heightened scrutiny of all gender-based classiﬁcations, regardless of whether they disadvantage men or women.70 Nonetheless, there are notable convergences between Supreme Court practice and Ely’s commended approach. First, the Court manifestly worries about courts substituting their judgment for that of politically accountable institutions in areas of reasonable disagreement. This is especially true in the broad, politically contestable domain of economic regulation that is subject to challenge under the Due Process and Equal Protection Clauses. Second, non-suspect-content tests reﬂect a deferential judicial stance based largely on this worry. Third, prominent suspect-content tests are plausibly viewed as aimed at correcting process deﬁciencies that would render the decisions of political bodies singularly unworthy of judicial deference.

Purpose Tests and Their Likely Surrogates The doctrinal tests framed and employed by the Supreme Court reﬂect broader concerns with the legitimacy of governmental purposes than is usually appreciated.71 A number of constitutional doctrines call for direct inquiries into governmental purposes. Other doctrines employ tests that might plausibly be viewed as surrogates for purpose tests.72 They adopt presumptions of unconstitutionality or assign burdens of proof reﬂecting suspicions that when the government regulates on suspect bases, or when legislation has certain troubling effects, the government has an illicit purpose. When purpose tests and their surrogates play a central role, at least part of the explanation frequently lies in phenomena arising from reasonable disagreement about what the Constitution means or how it ought to be applied. Otherwise divergent views and theories often converge on the conclusion that statutes enacted for certain purposes offend the Constitution. As dis-

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agreement with respect to other matters proliferates, purpose tests thus emerge as increasingly prominent and even practically necessary devices of constitutional implementation—for reasons more obscured than illuminated by originalist and forum-of-principle theories. Little more than one-quarter century ago, the Supreme Court could claim with some plausibility that the government’s actual purposes in enacting legislation were constitutionally irrelevant.73 Today, numerous doctrines explicitly inquire into governmental purposes. With no pretense to exhaustiveness, a few examples should make the point. The Equal Protection Clause. In the leading case of Washington v. Davis,74 discussed above, the Supreme Court expressly rejected arguments in favor of effects and balancing tests and made discriminatory purpose the touchstone of equal protection inquiries involving statutes that do not facially discriminate against racial or other protected minorities but that, nonetheless, have disproportionately unfavorable effects on minorities and their interests.75 When the government’s motives are discriminatory, a facially neutral statute is invalid.76 But if the government has no discriminatory purpose,77 a statute will be upheld despite a racially disparate impact as long as the statute is not arbitrary or irrational.78 The government’s purpose is also crucial in equal protection challenges to statutes that discriminate against classes not ordinarily protected by heightened judicial scrutiny. The Supreme Court has held that a bare desire to harm an unpopular group is not a constitutionally legitimate interest.79 On this basis, the Court has invalidated legislation intended to harm hippies,80 people with mental retardation,81 and homosexuals.82 The Free Speech Clause. It is axiomatic under the First Amendment that the government may not prohibit speech or expressive activity because of its disagreement with particular ideas.83 If the governmental purpose is censorial, the relatively relaxed standards that would otherwise be used to gauge the permissibility of “time, place, and manner” regulations and of restrictions on expressive conduct do not apply.84 The Establishment Clause. In Lemon v. Kurtzman,85 decided in 1971, the Supreme Court summarized settled doctrine as establishing that legislation is invalid under the Establishment Clause if, among other things, it was enacted for the purpose of promoting or inhibiting religious exercise. Even if the much-criticized Lemon test86 were replaced, it continues to be relatively EXPLICIT INQUIRIES INTO FORBIDDEN PURPOSES

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uncontroversial that a statute passed for the purpose of deterring religious practice should be held unconstitutional87—under the Free Exercise Clause, if not the Establishment Clause.88 Moreover, the “endorsement” test that has been favored by some Justices in recent years as a measure of Establishment Clause violations retains a place for inquiries into whether the government’s purpose is to signal approval of religious practices.89 The Free Exercise Clause. A strong majority of the Supreme Court has held that legislation enacted for the purpose of burdening or discouraging religious practice violates the Free Exercise Clause.90 Substantive Due Process. Under the framework of Planned Parenthood v. Casey,91 the constitutionality of some abortion regulations may depend on the legislature’s purpose.92 For example, the government may enact “incidental” regulations designed to ensure that a woman has made an informed decision about whether to have an abortion,93 but (at least on one reading of Casey) a state may not legislate for the purpose of stopping a woman who has made an informed decision from implementing her choice to abort a nonviable fetus.94 T E S T S P L A U S I B LY V I E W E D A S S U R R O G A T E S F O R P U R P O S E T E S T S

On the surface, forbidden-content, suspect-content, and effects tests appear to be alternatives to purpose-focused inquiries. On closer examination, however, many content-based and effects-based tests can reasonably be viewed as surrogates for purpose tests. As an initial matter, the notion that other kinds of tests could be surrogates for purpose tests might appear to suggest that purpose tests enjoy a kind of primacy. This suggestion may therefore seem incompatible with my earlier insistence that the tests employed in constitutional law typically all stand on the same footing, as available but seldom necessary mechanisms for implementing the Constitution. The explanation for treating other kinds of tests as sometime surrogates for purpose tests rests on the premise that within the project of implementing the Constitution, in which courts frequently rely on other branches of government to respect constitutional norms that are judicially underenforced, actions taken for unconstitutional purposes typically constitute especially egregious breaches of constitutional trust—seldom mitigated by considerations of reasonable disagreement, for example. If the underlying constitutional norms are not relatively fully protected by other kinds of tests, there thus may be an especially urgent interest in ensuring judicial protection against violations of this kind. Although purpose tests obviously offer the

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most straightforward protection against unconstitutionally motivated ofﬁcial action, it sometimes may be difﬁcult to prove in particular cases that the government acted for a forbidden reason. Moreover, because such a determination may be insulting, courts may hesitate to reach this conclusion on a case-by-case basis.95 In light of history and familiar psychology, however, some types of actions—as identiﬁed either by their contents or their effects—can be seen in the aggregate as likely to reﬂect forbidden purposes.96 When this is so, a sensible doctrinal response is to elevate the applicable level of scrutiny as a means of “smoking out” illicit purposes. Suspect classiﬁcations under the Equal Protection Clause. Under the Equal Protection Clause, statutes that discriminate on the basis of race and other suspect and semisuspect classiﬁcations trigger heightened judicial scrutiny.97 Among the considerations supporting this rule is that statutes drawing distinctions on suspect bases are likely to reﬂect forbidden purposes.98 The Supreme Court’s afﬁrmative action jurisprudence, though formally framed in suspect-content terms, manifests a clear preoccupation with what the Court takes to be constitutionally forbidden purposes.99 Two relevant themes run through the Court’s cases. First, although government bodies have a compelling interest in remedying their own past discrimination, the purpose of race-based redistribution for its own sake is an impermissible one.100 Second, an important reason for subjecting afﬁrmative action programs to strict scrutiny is to unmask impermissible, covertly redistributive (rather than remedial) motives.101 The Free Speech Clause. “Content neutrality” has emerged as perhaps the most important concept in modern free speech doctrine.102 The Court applies a balancing test to statutes that regulate speech in a content-neutral way—for example, by prohibiting all picketing, regardless of content, within one hundred feet of an elementary school.103 By contrast, statutes that restrict speech on the basis of content are presumed unconstitutional.104 As a result, it may sometimes be permissible under the First Amendment for the government to enact a relatively broad ban, such as a prohibition against all picketing close to elementary schools, but not to enact a narrower regulation that would actually permit more speech, such as a prohibition against all picketing except labor picketing.105 The most convincing explanation for this seeming anomaly involves a presumption about governmental purposes: when the government regulates speech on the basis of content, there is reason to suspect that it has acted for the forbidden purpose of shielding citizens from ideas that the government ﬁnds objectionable.106

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Another First Amendment doctrine reﬂecting concern about impermissible purposes demands relative determinacy in schemes for licensing the use of public streets, parks, and sidewalks for parades, demonstrations, and so forth.107 For example, a town can prohibit parading without a permit, but only if the standards for awarding permits leave little room for discretion.108 Otherwise, licensing ofﬁcials might favor some speakers and disfavor others on forbidden bases.109 The distinction between direct and incidental burdens. The Supreme Court has sometimes characterized burdens as “incidental,” and thus as not triggering heightened judicial review, even when they stand directly and indeed exclusively in the way of exercising a fundamental right.110 Examples include statutes that mandate waiting periods before a woman can have an abortion111 and those that compel people to undergo blood tests before they marry.112 When courts ﬁnd that statutes impose only incidental burdens on fundamental rights, the explanation cannot be that the statutes are not targeted directly at constitutionally protected conduct. Instead, the doctrine deems burdens such as these to be incidental when they do not make the ultimate exercise of a right too difﬁcult and, equally crucially, when the Court views their purposes as legitimate.113 For example, the Court would almost surely not regard a blood-test requirement as incompatible with the values supporting the right to marry.114 More controversially, it does not see the purpose of encouraging women to deliberate before having an abortion as inconsistent in principle with the abortion right.115 The most familiar explanation of the relevance of governmental purpose in constitutional law builds on Justice Holmes’s aphorism: “Even a dog distinguishes between being stumbled over and being kicked.”116 The point, I take it, is that we often cannot even characterize an act without understanding what motivated it. Within deeply entrenched ethical structures, what people (like dogs) are often owed is concern, care, or respect, and not necessarily a particular outcome.117 When constitutional doctrine is viewed against this background, there is nothing mysterious about the idea that the quality of governmental acts, and hence their constitutionality, should sometimes depend on their purposes. Although it is relatively easy to see why action for forbidden motives offends constitutional norms, important questions remain unanswered. Why, for example, does the Supreme Court, which frequently underenforces conPURPOSE-BASED TESTS AND THE JUDICIAL ROLE

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stitutional norms, rely so heavily on purpose tests? Purpose tests represent one important mechanism, but not always a necessary one, for protecting constitutional values. As I noted earlier, little more than twenty-ﬁve years ago, the Court could plausibly maintain that governmental purpose was irrelevant under existing constitutional doctrine. Indeed, the Court continues to reject purpose-based inquiries in at least some areas of constitutional law.118 A related question emerges from comparison of the prominence of purpose tests and their surrogates with the lesser roles played by some of the other kinds of constitutional tests discussed earlier. Why, under existing doctrine, does proof of unconstitutionality so often depend on satisfying either a purpose test or a test that is plausibly viewed as a surrogate for a purpose test? The answer to these questions begins to come into focus when we view the Justices of the Supreme Court not as historians or philosophers, but as practical lawyers charged with agreeing on mechanisms through which the Constitution can be implemented effectively. First, within a doctrinal regime in which the Court frequently treats the possibility of reasonable disagreement as a ground for judicial deference, purpose tests single out a class of cases in which deference to the judgments of the political branches would be singularly misplaced. When political ofﬁcials act for constitutionally illegitimate reasons, they forfeit any reasonable claim to judicial deference. Second, as currently framed by the Supreme Court, purpose-focused constitutional doctrines respond to at least some of the problems arising from reasonable disagreement among the Justices themselves about the appropriate structure of constitutional doctrine. To see why, it is useful to consider which motives or purposes tend to be deemed constitutionally impermissible. It is difﬁcult to generalize about this issue, because whether a purpose is forbidden often depends on the particular constitutional provision against which it is tested.119 Nevertheless, it seems fair to say that, with few exceptions, the purposes that are deemed forbidden tend to reﬂect an overlap of, or consensus among, otherwise competing outlooks or theories.120 For example, commentators have advanced a host of theoretical justiﬁcations for the First Amendment’s Free Speech Clause.121 Yet virtually all of the leading theories would hold it impermissible, albeit for different reasons, for the government to attempt to stiﬂe communication based on its hostility to particular ideas.122 There is a similar competition among views about the reach of the Free Exercise Clause.123 Again, however, all prominent theories agree that the government may not purposely single out religiously motivated conduct for disfavored treatment.124

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There tends, if anything, to be even stronger consensus supporting those constitutional tests that might plausibly be viewed as surrogates for explicitly purpose-focused inquiries. In cases where such tests apply, some theories, and some Justices of the Supreme Court, might view elevated scrutiny as independently justiﬁed by the likely effects of challenged regulations. But modern doctrine explicitly eschews effects-based review in many areas. By contrast, virtually all can agree that there should be strict scrutiny of classiﬁcations likely to reﬂect purposes of disadvantaging minorities or censoring speech based on its substantive message, for example. Because convergence of competing theories is an important factor in determining which purposes are deemed constitutionally impermissible, as well as when tests that function partly as surrogates for purpose inquiries ought to be employed, purpose tests and their surrogates are frequently examples of what Cass Sunstein has called “incompletely theorized agreements.”125 In articulating or enforcing a purpose-based test, the Supreme Court typically does not, and probably could not, provide a full explanation of why a particular purpose is constitutionally forbidden; there may be no agreement on the reason, despite consensus concerning the judgment.126 Nonetheless, the conclusion that particular purposes are forbidden, or that forbidden purposes are likely to underlie particular kinds of regulations, can be an important one. Such conclusions can provide the basis for stable legal agreement among those with differing background theories. When no further agreement is possible and the Justices are unwilling to adopt balancing tests (for reasons discussed above), purpose-based tests and their surrogates frequently deﬁne doctrines that are sharply limited in protective scope. In this setting, purpose tests and their surrogates tend to reﬂect not only an overlapping consensus but also a lowest common denominator. The Justices may be able to agree on purpose tests as a device for implementing the Constitution, even when they cannot agree about what the Constitution means.

Deferential Tests, Reasonable Disagreement, and Political Democracy It is time to draw some strands together. Although balancing plays an important role in the Supreme Court’s selection of doctrinal tests, the most prominent doctrines enforcing individual rights do not characteristically call for open judicial balancing on a case-by-case basis. Instead, some of the most important doctrines sort constitutional challenges into a two-tier framework

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involving the suspect and the nonsuspect. In both their strict and their deferential aspects, doctrines of this kind typically reﬂect an aspiration to defer to the judgments of political institutions except in cases in which the political process is manifestly or presumptively untrustworthy. Purpose-focused constitutional doctrines both ﬁt with and help to implement the agenda of affording deference when deference can plausibly be given. As Professor Ely most notably suggests, the conjunction and overlap of purpose-focused constitutional doctrines and of highly deferential judicial review in many cases not involving suspect-content rules may appear to be a conspicuously, almost tautologically, “democratic” response to the problem of reasonable disagreement in constitutional law.127 Except when the legislature restricts speech or political activity, or expressly employs “suspect” classiﬁcations, the Court generally prescribes deference to the political process. In the domain of reasonable disagreement, democratic majorities are entitled to rule. “Democracy” is a much contested term, however, and the theory of political democracy that is reﬂected in purpose-focused constitutional doctrine and two-tiered review is quite minimal.128 Comparison with modern versions of republican political theory129 and with the kind of democratic theory often associated with efforts by the Warren Court to protect “discrete and insular minorities”130 may illustrate the point. Modern republican theory grounds the legitimacy of governmental action in an ideal of reasoned deliberation by representative decision makers in which all are accorded equal concern and respect; the majority’s moral entitlement to coerce the minority depends on its responsiveness to minority views and interests.131 Whereas some versions of republican theory would support judicial application of what I have called “appropriate deliberation” tests to ensure that majorities have satisﬁed the (asserted) deliberative requirements of democratic legitimacy, purpose tests and non-suspectcontent tests establish no judicially enforceable ideal of reasoned deliberation.132 There is a similar contrast with the democratic theory often associated with judicial efforts to protect “discrete and insular minorities.”133 Traditional minorities may suffer two disadvantages in the political process. One is prejudice. The other is a relative dearth of sympathy, empathy, or concern.134 Whereas some democratic theories support effects and appropriate deliberation tests to protect minorities from a lack of equal concern, purpose-based tests and non-suspect-content tests do not authorize courts to hold the legislature to ideals of sympathetic consideration of all groups’ in-

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terests. Again, to the extent that purpose and non-suspect-content tests reﬂect a theory of democratic legitimacy at all, that thin democratic theory accepts the validity of any governmental action that is not manifestly irrational or speciﬁcally taken for prohibited purposes. In an era characterized by widespread reasonable disagreement, it should probably come as no surprise that constitutional doctrines reﬂect at most a thin conception of the democratic processes—and the associated ideal of democratic legitimacy—to which they commonly prescribe judicial deference.135 There is as much reasonable disagreement about the substantive content of the ideal of constitutional democracy as about the appropriate scope of fundamental rights.136 For better or for worse, the Court does not agree on any robust ideal—with the partial exception, discussed below, that ﬁve Justices of the current Court are increasingly militant in their preference for state and local over national democracy. The result is a body of law that is dramatically incompletely theorized, not least in its democratic pretensions. Nevertheless, the basic emphases of current doctrine are plain enough. They reveal a Court that is generally disposed to be deferential to political decision makers, largely because of diverse problems of practicality and fairness associated with reasonable disagreement, both outside the Court and within. Whether one applauds or condemns the Justices’ performance, any fair assessment must go beyond history and philosophy and acknowledge the practical burdens and obligations that shape the judicial role. Especially in the face of reasonable disagreement, implementing the Constitution effectively is a complex, multifaceted, relentlessly practical task.

Coda: Federalism and Hints of Doctrinal Revolution In cases involving the separation of powers and federalism, the Supreme Court has not so regularly relied on a recurring selection of tests as it has in enforcing individual rights. Accordingly, I do not proffer a catalogue of judicial tests for enforcing the Constitution’s structural provisions. Neither, however, can I wholly ignore the Court’s approach to the deﬁnition and enforcement of structural norms in a book about constitutional implementation. At the risk of oversimpliﬁcation, I therefore offer just a few words about the challenges that the Court confronts in framing doctrines to enforce federalism principles. Federalism issues are of special interest for two reasons. First, such issues have recently ﬁgured prominently on the Court’s

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agenda. Second, as I noted in Chapter 4, the current Court has shown far less disposition to deference and restraint in federalism cases than in those involving individual rights. Although the Constitution clearly embodies principles of federalism,137 the Court has historically had extraordinary difﬁculty in specifying those principles and formulating workable tests to implement them.138 During the so-called Lochner era,139 the Court strove to protect a sphere of distinctively state authority by enforcing restrictions on the reach of federal legislation. But that effort foundered in the Great Depression. Beginning in the late 1930s, the Court largely renounced attempts to promote federalism through doctrines that limit Congress’s power.140 More recently, a determined ﬁve-member majority—consisting of Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas— has manifested a strong commitment to general federalism principles,141 but so far has had only mixed success in developing commensurately robust implementing doctrines. Many believe that we are in the midst of a doctrinal revolution. If so, the old order has been compromised, but not yet toppled. It remains unclear what terms of settlement may emerge. The judicial battle involving constitutional federalism is currently being waged along a number of fronts, with roughly the same 5-4 division among the Justices prevailing in each. First, against a long background of deference to Congress, the Court held in a 1995 case, United States v. Lopez,142 that Congress lacked adequate authority under the Commerce Clause to prohibit the possession of guns within school zones, even though the presence of guns in schools is likely to have both short- and especially long-term effects on commercial activities (if guns in schools disrupt education and thus produce a less well-educated work force). The meaning of Lopez is less than wholly clear. Among other things, despite its startling result, Lopez did not purport formally to revise the reigning doctrinal test, ﬁrst established when the Court renounced its Lochner approach, under which no previous federal statute had been invalidated for more than ﬁfty years: [W]e have identiﬁed three broad categories of activity that Congress may regulate under its commerce power. . . . First, Congress may regulate the use of the channels of interstate commerce. . . . Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. . . . Finally, Congress’ commerce authority in-

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cludes the power to regulate those activities that . . . substantially affect interstate commerce.143

A more recent case, Morrison v. United States,144 applied Lopez to invalidate a statute making violence against women a federal crime. Morrison suggests that when Congress enacts legislation on the basis that an activity substantially affects interstate commerce, the regulated activity must itself by commercial in some sense. Only time will tell whether the Court will use Lopez and Morrison as foundation stones for new Commerce Clause doctrines that sharply restrict congressional power in the name of constitutional federalism. In the background, however, the experience of the Lochner era stands as a warning. The Court tried before to protect state regulatory prerogatives by restricting congressional power. In the end, because of its inability to draw lines that were both tolerably clear and democratically acceptable, it succeeded only in covering itself with disgrace. A second line of federalism cases addresses Congress’s capacity under the Commerce Clause and the Tenth Amendment to regulate the activities of state and local governments themselves. In 1976, in National League of Cities v. Usery,145 the Burger Court reversed an earlier precedent and suggested that Congress could not permissibly regulate the performance by states of traditional governmental functions that were somehow integral to state sovereignty.146 Like the formulas of the Lochner era, however, the vague and amorphous National League of Cities test proved difﬁcult if not impossible to administer. Relying heavily on this consideration, the Court, by 5-4, reversed its earlier decision in Garcia v. San Antonio Metropolitan Transit Authority, decided in 1985.147 Garcia held that the states’ constitutional protection against congressional overreaching must come principally if not exclusively from political “safeguards inherent in the federal system.”148 More recently, the profederalist majority has moved to recover some of the ground that Garcia gave up. In New York v. United States149 and Printz v. United States,150 the Court has held that the Constitution protects the states against federal “commandeering” of state ofﬁcials (other than the courts) to carry out a federally mandated agenda. Applying this principle, New York held that Congress could not compel the states to enact legislation. Printz ruled that state law enforcement personnel could not be made to conduct background checks on would-be purchasers of handguns under the Brady Handgun Violence Protection Act. In interesting contrast with United States v. Lopez—in which ﬁve Justices

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united on a result, but apparently were unable to agree on a sharply etched, federalism-protective test—New York and Printz lay down a clear, easily administrable “forbidden content” rule: Congress cannot compel state legislatures and executive ofﬁcials afﬁrmatively to enforce federal law. But that rule is narrow. Although it gives strong protection to constitutional federalism, it does so only in a small category of cases. Meanwhile, in a third line of federalism cases, the same ﬁve Justices who joined the Court’s opinions in Lopez and Printz have held that the Eleventh Amendment and the doctrine of state sovereign immunity preclude Congress from using its legislative powers under Article I to make the states suable for money damages, even when they violate binding federal law.151 The Court’s sovereign immunity decisions afford the states signiﬁcant protections. Nevertheless, sovereign immunity remains subject to important limits.152 It is a doctrine about the suability of states, not about the obligations imposed on states by the Constitution, or even about Congress’s power to bind the states by enacting substantive regulatory legislation. Moreover, although sovereign immunity protects the states from damages liability, it generally does not apply to suits seeking injunctive relief (such as the order to desegregate the schools in Brown v. Board of Education).153 Nor, interestingly, does it shield local governments (as opposed to the states themselves) from suit.154 As a result, it is hard to imagine a profederalism doctrinal revolution built solely, or even principally, on sovereign immunity rulings. Finally, in a line of cases beginning with City of Boerne v. Flores—discussed at length in Chapter 4—the Court has sharply limited Congress’s power to regulate state and local governments under Section 5 of the Fourteenth Amendment. These rulings possess unquestioned signiﬁcance. Even so, the principal vehicle for congressional regulation is the Commerce Clause. For a large alteration of federalism to occur by judicial ruling, the Court would have to expand well beyond United States v. Lopez and hazard a reencounter with the difﬁculties of the Lochner era. Viewed collectively against the background of doctrines protecting individual rights, the Court’s recent federalism support a number of important conclusions. First, as I have emphasized, judicial restraint and deference are not necessary postures in all contexts. The Court has broad ﬂexibility, especially with respect to issues of relatively little popular and political salience that do not raise strong concerns of democratic acceptability. As the Court manifests an increasing willingness to invalidate recent, popular congressional legislation, one may speculate that considerations of democratic accept-

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ability may loom larger in the future, but it may be too early to pronounce with conﬁdence. Second, the Court can have an agenda. A determined ﬁve-Justice majority has made the reconstruction of federalism doctrine a foremost priority. The Court’s role in implementing the Constitution is by no means entirely passive and reactive. Third, for a variety of reasons, even an agenda shared by a majority of the Justices can prove difﬁcult to implement. Rather clearly, the strongly profederalism Justices ﬁnd it easier to agree on the importance of a general federalism principle than to develop broadly efﬁcacious implementing tests—as manifest, for example, in their inability to formulate a clear test in Lopez and the narrowness of the tests deployed in New York and Printz. The federalism revolution, if such it is, thus has produced many famous battles, but still no decisive rollback of congressional power under the Commerce Clause—the principal vehicle for federal regulation since the New Deal. Finally, the narrowness of the majority in the most important recent federalism cases testiﬁes to the precariousness of the Court’s achievements. In the long run, ﬁve Justices cannot carry off a sweeping doctrinal revolution without signiﬁcant support, or at least acquiescence, from the nation as a whole.

CHAPTER

6 Ordinary Adjudication

Ideally, the Supreme Court would always conﬁrm the validity of a previously articulated constitutional principle or test before applying it. Providing rational justiﬁcations is partly constitutive of constitutional justice, as well as instrumentally valuable in promoting it. In light of this ideal, the category of “ordinary” adjudication, which I have deﬁned as comprising cases in which the Court applies preexisting doctrine without reconsidering its validity or wisdom (and in which it sometimes explicitly refuses to address issues of constitutional principle directly), provides a fascinating prism through which to reﬂect on the Court’s role and, in particular, on its obligation of constitutional ﬁdelity. Ordinary adjudication is inherently a species of second-best, which is not easily explained, if indeed it can be explained at all, by either originalist or forum-of-principle theories. Nonetheless, second-best is indeed a species of “best,” and ordinary adjudication as I have deﬁned it is an important phenomenon in American constitutional law. This is so even though, as I have taken pains to point out, the line that separates ordinary from extraordinary adjudication is both blurry and inherently permeable, since it is always open to the Court to reconsider either a previous articulation of constitutional principle or a surrounding doctrinal structure. Despite its permeability, the line between ordinary and extraordinary adjudication most often holds. As a practical matter, it is hard to imagine how the Supreme Court could function without a practice of ordinary adjudication and the doctrine of stare decisis that supports it.

Stare Decisis The doctrine of stare decisis, which is by no means peculiar to constitutional law, reﬂects the Latin maxim “stare decisis et non quieta movere—stand by the 102

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thing decided and do not disturb the calm.”1 Familiar justiﬁcations include the effects of stare decisis in promoting fairness, efﬁciency, predictability, and stability.2 Stare decisis also furnishes a functionally crucial response to the phenomenon of reasonable disagreement. First, stare decisis establishes a presumption that the result reached by a prior Court was at least reasonable, even if not the best possible.3 Second, and closely related, treating precedent as presumptively authoritative means that precedent becomes a “focal point” for possible agreement among Justices who are motivated to reach a coordinated resolution4—that is, a majority opinion—on reasonable terms.5 Even if a precedent does not reﬂect every or even any sitting Justice’s view of how the Constitution would optimally be implemented, it may, because of its status, reﬂect the result best situated to win majority acceptance as a reasonable accommodation of competing considerations.6 In recent years, commentators have questioned whether stare decisis actually carries weight in the Supreme Court.7 The skeptical commentaries draw their plausibility from two phenomena. First, the Court not only can overrule its own precedents, but actually does so with some frequency.8 Second, with respect to many contested issues, the Justices who dissent from one decision refuse to abandon their positions in subsequent cases.9 In fact, however, these phenomena merely demonstrate that the principle of stare decisis is not absolute. It exerts some inﬂuence, but does not determine every case that comes within the maxim. As a result, stare decisis not only makes possible the distinction between ordinary and extraordinary adjudication, but also—as I have said repeatedly now—leaves that distinction permeable. Although many litigated issues seem plainly marked for the “ordinary” rather than the “extraordinary” category, the Constitution stands as a looming presence in every constitutional case in the Supreme Court.

Constitutional Doctrine and the Judicial Agenda The Supreme Court’s disposition to treat settled doctrine as a focal point for stable equilibrium plays a large, recognized role in shaping the Court’s agenda.10 Once resolved, some questions are subsequently assumed to be off the table, even though they had been sharply contested and could conceivably become controverted again. At the present time, for example, the Court appears uninterested in arguments disputing that the Fifth Amendment establishes an equal protection norm that binds the federal government;11 that the Equal Protection Clause protects against discriminations involving vot-

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ing rights;12 or that the Establishment Clause, as incorporated by the Fourteenth Amendment, forbids state as well federal establishments of religion.13 Any of these claims might well be contested if the issues were treated as ones of ultimate principle.14 In addition, as I have suggested already, no formal obstacle precludes a party from raising any of the aforementioned issues for fresh consideration.15 Nonetheless, a clear majority of the Justices regards these issues as settled. Moreover, and in some ways more interesting, probably none of the Justices would feel compelled to treat any of the issues listed above as requiring serious reconsideration even if a litigant pressed the demand. If not, why not? Part of the answer undoubtedly lies in stare decisis. Yet it seems doubtful that stare decisis, as a principle of only limited weight, could establish that it would be afﬁrmatively wrong, independent of the merits, to reject any of the settled propositions that I recited. If so, it seems fair to conclude that the Justices understand their personal obligations of ﬁdelity in implementing the Constitution as partly deﬁned and limited by the views of others. This is a defensible position. When an argument seems destined for rejection by a majority of the Court, the obligation of constitutional ﬁdelity does not absolutely require individual Justices to take that argument seriously—even if, were they to do so, some of the Justices might be disposed to conclude that it deserved to prevail. Given the practical character of their roles, the Justices are entitled to some ﬂexibility in choosing their occasions to revisit ultimate principles.

Principled and Pragmatic Acceptance of Tests It takes a test to beat a test. To decide a case, the Court must apply some constitutional standard. Clearly, however, the Justices feel no obligation to resolve every case pursuant to the test that they, personally, would regard as best. To cite a well-known example, for nearly three decades the Court has recurrently used a three-part test ﬁrst articulated in Lemon v. Kurtzman16 to identify Establishment Clause violations. That test has attracted widespread criticism; it has been clear for many years that a majority of the Justices regards it as far from optimal. Nonetheless, the Lemon test continues to be applied because no majority has so far been mustered for a test to replace it. Similarly, Justice Scalia has sometimes complained that balancing tests are, at most, barely compatible with the rule of law.17 Yet he not only joins,18 but from time to time will actually author,19 decisions in which the Court follows precedent and applies a balancing test.

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The task of crafting a new rule or test—or even a serious proposal for one—is hard work, requiring resources that may not always lie at hand.20 In implementing the Constitution, the Justices appropriately weigh the costs of delay against the risk of injudicious innovation. Sometimes in constitutional law, as in medicine, the governing principle should be: “First, do no harm.”21

The Avoidance of Fundamental Principles I have described as “rough” and “permeable” the line between “ordinary” adjudication, in which the Court resolves cases in light of precedent without explicit reexamination of underlying constitutional principles, and “extraordinary” adjudication, in which questions of guiding principle are squarely in issue. Sometimes some Justices will insist that a fundamental question be addressed, while others resist the demand. M.L.B. v. S.L.J.,22 decided by the Court in 1996, furnishes an interesting example. M.L.B. presented the question whether Mississippi could enforce a rule requiring the prepayment of costs for civil appeals against an indigent mother who wished to challenge a probate court order terminating her parental rights. By a 6-3 vote, the Court accepted the mother’s argument that the Mississippi rule created a scheme of unequal justice forbidden by the Fourteenth Amendment.23 This argument drew its plausibility from a number of cases, most rendered prior to the mid-1970s, holding that the states must sometimes waive rules that otherwise would preclude indigents from pursuing appeals or attempting to vindicate claimed legal rights.24 Several of these decisions rested on a confusing mix of equal protection and due process grounds.25 In addition, two cases from the 1980s had established that state procedures for terminating parental rights affected unusually important interests and, accordingly, that the requirements of due process were heightened.26 For Justice Thomas, who dissented, M.L.B. raised issues that called for reexamination of doctrinal premises.27 The petitioner relied on cases decided under the Due Process Clause. But the Court, in accordance with precedent, acknowledged that due process does not require a state to provide appeals at all; a single fair trial would sufﬁce.28 Given that the state could bar appeals altogether, Justice Thomas could not understand how due process could require the waiver of ﬁnancial barriers to appeals.29 As a matter of principle, Justice Thomas therefore concluded, M.L.B.’s claim had to rest on the Equal Protection Clause. But the Court had held, in the watershed case of Washington v. Davis,30 that statutes do not violate the Constitution, or even

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trigger heightened judicial scrutiny, merely because they have an adverse impact on an identiﬁable group. The test of a constitutional violation is whether the state acted with discriminatory intent. On this understanding of the Equal Protection Clause, Justice Thomas argued, M.L.B.’s claim deserved to be rejected;31 there was no plausible argument that Mississippi established fees for appeals for the purpose of harming the poor. In Justice Thomas’s view, older cases that supported M.L.B.’s argument should be reexamined and possibly overruled.32 In any event, he argued, the Court needed to confront underlying questions of principle, both to resolve the case before it and to chart a doctrinal course for the future. Writing for the Court, Justice Ginsburg rebuffed Justice Thomas’s challenge. As framed by the Court’s majority, the case called for a relatively straightforward application of precedents under the Due Process and Equal Protection Clauses.33 Justice Ginsburg suggested that the equal protection grounds for decision predominated, but she by no means disavowed reliance on due process.34 Nowhere did she address the deep issues of principle that Justice Thomas raised.35 Instead, by a process of analogy and distinction, she determined that M.L.B.’s case was most like those in which state rules impeding appeals by indigents had had to yield. M.L.B. stands as a paradigmatic example of what Cass Sunstein calls judicial minimalism:36 the opinion is “incompletely theorized”37 in at least one sense, and probably in two. First, the opinion offers no broad theory of either due process or equal protection. Second, it is quite likely that at least some of the Justices constituting the majority were themselves uncertain how to give a deep, principled account of why the judgment was correct. Doctrine clearly abets incompletely theorized judgments by furnishing a framework in which determinations can be reached and explained as defensible, even if the framework is not itself justiﬁed by any broader theory. Given doctrine, the Justices frequently need not agree on much (including the grounds justifying the doctrine itself) in order to reach an agreed result. Moreover, as M.L.B. demonstrates, the Justices obviously believe that a shallow justiﬁcation in terms of precedent at least sometimes satisﬁes their obligation of ﬁdelity to the Constitution. In writings celebrating the virtues of “incompletely theorized agreements,” Professor Sunstein argues that we should be relatively sanguine about this state of affairs. In his view, we have more reason to trust judges’ quasi-intuitive, case-by-case judgments than we have to trust their capacity to frame broad, justifying theories.38 As Sunstein recognizes, however, this is

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a generalization, not a rule.39 Moreover, the best test of moral, political, and legal claims frequently involves their coherence with other propositions that we have good reason to accept.40 Seen in this light, the Court’s determined avoidance of questions of underlying principle in M.L.B. is, at best, a secondbest approach. As I have suggested already, however, the same might be said of ordinary, precedent-based adjudication in general. Despite the possibility of reasonable disagreement in constitutional law, we trust the Supreme Court to decide contested issues, largely on the ground that the Court’s decisions will at least be disciplined by the demands of principle41 and by the requirement of articulate justiﬁcation.42 And justiﬁcation, within the domain of constitutional law, potentially runs deep. When the Court’s majority declines a dissenting opinion’s express challenge to justify its decision at a deeper level, it refuses to accept the full discipline of articulate reasoning that substantially underwrites judicial review. Even so, there sometimes is no preferable alternative. Given reasonable disagreement about deep justiﬁcations, it may be impossible to muster a majority for any deeply reasoned response to a challenge such as Justice Thomas’s in M.L.B. In light of reasonable disagreement, shallow reasoning is all that is possible. Due to the possible absence of a better, practicable alternative, to label the approach of the M.L.B. majority as second best is not necessarily to condemn it. Nonetheless, we should not delude ourselves about the gap between second best and the constitutional ideal. To think clearly about the Supreme Court’s role in our constitutional regime, we need to think—in ways not illumined by the originalist and forum-of-principle models—about the role of second best.

Doctrinal Adaptation and “Ordinary” Overruling I should not leave the impression that ordinary constitutional adjudication, focused mostly on precedent, leaves little room for doctrinal adaptation. The Supreme Court regularly deals with difﬁcult cases that call for contestable judgments about the meaning of precedents and their analogical force. In addition, established constitutional tests are often far from determinate. As one decision follows another, constitutional doctrine can change relatively profoundly, without direct reassessment of underlying principles. A striking illustration emerged in Agostini v. Felton,43 a case decided in 1997. With very little reference to deep issues of principle, the Court’s 5-4

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majority in Agostini actually overruled two important Establishment Clause cases on the ground that their rationales had been undermined by intervening decisions. At issue in Agostini, as in the two earlier cases of Grand Rapids v. Ball44 and Aguilar v. Felton,45 were programs under which public school teachers enter parochial school classrooms to teach secular classes. In Ball and Aguilar, the Court, by a 5-4 vote, found that the challenged programs violated the Establishment Clause. More particularly, the Court ruled that the programs’ “primary effect” was to advance religion in violation of the “effects” prong of the three-part Establishment Clause test of Lemon v. Kurtzman.46 According to the Ball and Aguilar majorities, public employees on the premises of religious schools were likely to contribute to those schools’ mission of religious inculcation.47 In addition, the mixture of religious and secular education created a symbolic union of church and state and helped to ﬁnance religious education by sparing religious schools some costs that they might otherwise have borne.48 In overruling Ball and Aguilar, Agostini struck no blows at the continuingly resilient Lemon test. Carefully parsing cases, Justice O’Connor’s majority opinion ﬁrst reasoned that a subsequent decision permitting a state-employed sign language interpreter to assist a deaf student in a parochial school had “abandoned the presumption . . . that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion.”49 Justice O’Connor then argued that the Court had also “departed from the rule relied on in Ball that all government aid that directly aids the educational function of religious schools is invalid.”50 In support of this proposition, the Court pointed to Witters v. Washington Department of Services for the Blind,51 which had upheld a state’s provision of a vocational tuition grant to a blind person attending a Christian college and pursuing education for the ministry. In light of these intervening developments, Justice O’Connor concluded, the effect of governmental programs remained crucial to Establishment Clause inquiries,52 but the applicable effects test—or, perhaps more precisely, the presumptions guiding its application—had changed. Under more recent precedents, public employees are no longer categorically forbidden to work in parochial school classrooms,53 and the evenhanded provision of beneﬁts to students in religious as well as secular schools does not, without more, evidence a forbidden effect of promoting religion.54 Through ordinary adjudication, proceeding by narrow if contestable arguments about how

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agreed tests should be applied or prior decisions understood,55 the Court concluded that the framework of constitutional law had not only changed but had changed sufﬁciently dramatically to justify overruling Ball and Aguilar.

Shadows of Principles in Ordinary Adjudication Ordinary, doctrine-based adjudication purports to focus on the correct application of closely analogous precedents and agreed upon tests. On the surface, the disputes involve technical canons constituting “the artiﬁcial reason of the law.”56 When is a precedent distinguishable? When is a case on point? When is an analogy a good one?57 According to one possible account, the doctrinal disputes characteristic of ordinary adjudication are substantially independent of debates about ultimate constitutional principles. On this view, doctrine blocks recourse to principle, much as rules, in order to function as rules, must bar all-thingsconsidered judgments. The difﬁculty with this position is obvious: in cases in which there really is room for reasonable disagreement about how doctrine would best be applied, debates about application, if divorced from issues of constitutional principle, would be not only arid but obtuse. Ordinary adjudication—in a case such as Agostini, for example—ineluctably occurs in light of the Justices’ sometimes divergent conceptions of underlying constitutional norms, as mediated by what I have called “value arguments,” even if the Justices neither advert explicitly to ultimate conceptions of constitutional meaning, nor attempt to defend or attack the doctrinal framework within which ordinary adjudication takes place. Even in ordinary adjudication, in other words, views about matters of background principle almost certainly dominate the interstices of doctrinal argument and guide contestable judgments. Nonetheless, the central debate is often submerged. If the submersion of what is most fundamentally at stake can be justiﬁed, it must again be on the ground that this characteristic feature of ordinary adjudication is a second-best way of implementing the Constitution under circumstances of reasonable disagreement. To cite just one example, the ﬁve Justices who constituted the majority in Agostini have disagreed, sometimes bitterly, about the precise principles that Establishment Clause jurisprudence ought to reﬂect.58 Reasonably disagreeing (or, being aware of grounds for reasonable disagreement, individually uncertain) about how guiding principles would best be speciﬁed, a majority of the Justices may nonethe-

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less agree about a result and about a shallow explanation, and they may further agree to keep intact a doctrinal structure that they believe helps to implement constitutional values reasonably well. Recognition that ordinary adjudication is only a species of second best may help to explain why some of the best constitutional theory literature explicitly offers an idealized or reconstructed account of constitutional adjudication, not a descriptive theory of what actually happens.59 It is a bit discomﬁting to recognize how much of the contest of principle occurs in the interstices of doctrinal frameworks that may themselves be accepted only on second-best grounds, and equally discomﬁting to acknowledge how much of the inﬂuence exerted by differing views of principle is implicit rather than explicit. Nevertheless, an ideal of what would be ﬁrst best should not obscure the practical need for approaches that are second best. Any adequate account of the Supreme Court’s role must reﬂect this insight. The Justice are not only, or even primarily, historians or moral philosophers. Their job description requires them to function as practical lawyers, attempting to devise morally tolerable means of constitutional implementation in the face of reasonable, irresolvable disagreements.

CHAPTER

7 Legitimacy and the Unwritten Constitution

In preceding chapters I have argued that the Supreme Court’s characteristic role is to implement the Constitution by developing and applying doctrines that reﬂect, but do not always embody, the Constitution’s meaning. I must now address a potentially powerful challenge to my account, based upon the Court’s recognized obligation of constitutional ﬁdelity.1 According to this challenge, the Court is necessarily unfaithful to the Constitution, and therefore behaves illegitimately, if it declines to enforce the Constitution’s full meaning in properly litigated cases, or if it establishes rules that overenforce the Constitution,2 or possibly if it accords authority to precedents that distort the Constitution’s true meaning.3 My response will take some time to develop, but its essence can be stated brieﬂy: the United States has an unwritten as well as a written constitution.4 In one of its aspects, the unwritten constitution recognizes sources of constitutional law that go beyond the written Constitution. For example, judicial precedent and entrenched historical practice both enjoy at least limited constitutional authority; both may sometimes dictate different results to constitutional cases than would be reached under what otherwise would be the best interpretation of the written Constitution. In another, partly overlapping aspect, the unwritten constitution furnishes adjudicative norms that structure judicial decision making. Under the unwritten constitution, the Supreme Court is not only authorized but also required to make practical, predictive, and sometimes tactical judgments of the kind that I have described. I should emphasize that the unwritten constitution, in both of its aspects, supplements or mediates the written Constitution, rather than displaces it. I know of no case in which the unwritten constitution calls for results that cannot at least be reconciled with the language of the written Constitution, 111

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even if reconciliation sometimes depends on tenuous or even specialized interpretations (as in the case of “substantive due process” adjudication).

What Is the Constitution? Recent writers on constitutional theory have recurrently asked various forms of the question: “What is the Constitution of the United States?”5 Underlying their otherwise diverse positions is a shared sense that our constitutional law cannot plausibly be explained solely by reference to the document denominated as “the Constitution” in the National Archives and its formally enacted amendments—that is, the written Constitution as it would naturally be understood by an ordinary speaker of English, with some historical understanding but no knowledge of specialized arts of constitutional interpretation. (I do not generally repeat this cumbersome formulation, but my subsequent claims that “the Constitution” and “the written Constitution” do not exhaust what I describe as the small-c constitution of the United States should be understood to incorporate it.) One response to this situation, adopted by at least some originalists, is to conclude that much of our constitutional law is illegitimate.6 But others, emphasizing the necessary roots of law in social practices, have concluded that our “constitutional law”—used in a familiar sense to encompass at least the bulk of judicial doctrine—certainly must be recognized as law, and thus have argued that we must expand our understanding of what “the Constitution” is.7 My suggestion (which is novel only in its details) is slightly different. I would save the term the Constitution to refer to the written Constitution and its formally recognized written amendments, but acknowledge that the written Constitution is not the exclusive source of valid constitutional law in the United States. There are other valid sources, provided that they can be reconciled through interpretive practice with the authority of the written Constitution. In conjunction, these other sources of valid constitutional norms effectively give us an unwritten constitution to supplement the written one.

Deﬁning Features of a Constitution There are various paths to the conclusion that the written Constitution is not the only valid source of constitutional norms, all premised on the assumption—defended in Chapter 1—that the foundations of law and consti-

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tutional law necessarily lie in practices of acceptance. The route that I shall follow proceeds from a deﬁnitional question: What are the deﬁning features that make a constitution, in the generic sense, something more than just another set of legal norms among others?8 Although this question has no canonical answer,9 I think there is wide agreement that certain standard elements must normally characterize a nation’s “constitution.” First, a constitution establishes the supreme law that prevails in collision with all other law.10 Second, a constitution literally constitutes the fundamental elements of government and deﬁnes the powers of the most central institutions.11 Third, the term constitution connotes relative stability in comparison with other, more ordinary legal norms.12 If these suggestions are correct, then the written Constitution does not, by itself, furnish all of the constitution of the United States. The written Constitution—that is, the document in the National Archives as it would be understood by an ordinary speaker of English, with some historical understanding but no knowledge of specialized arts of interpretive practice—does not always prevail in collision with all other law, nor does it exhaust the law that constitutes the government and deﬁnes the power of its most important institutions.

The Unwritten Constitution: Sources of Constitutional Law Although it is widely presumed that the written Constitution is the supreme law that must prevail in clashes with all other law, the reality is much complicated by the authority of precedent.13 Under the doctrine of stare decisis (discussed in Chapter 6), the Supreme Court routinely enforces precedents that it would think unjustiﬁed as an initial matter unless some special reason—going beyond the mere fact of error—justiﬁes overruling.14 Indeed, so far as I am aware, no Justice has ever taken the position that initially erroneous constitutional precedent should always be overruled. The most persuasive explanation of how erroneous precedent could command the allegiance of the Justices15 appeals to norms of constitutional “practice.”16 Law owes its status as such to practices of acceptance. And practices of acceptance sometimes establish judicial precedent as the binding law of the United States, even when it prescribes outcomes different from those dictated by what otherwise would be the best interpretation of the written, capital-C Constitution. The authority of precedent should not be overstated. As I have suggested already, it is probably most illuminating to

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regard precedent as a source of constitutional law that does not so much displace the written Constitution as mediate it. Nonetheless, if we ask whether the written Constitution, by itself, performs all of the characteristic functions of a constitution in the small-c sense, then the answer must be negative. Entrenched historical practices are also a source of constitutional law, which also may dictate results different from those that otherwise would be reached under the written Constitution.17 For example, more as a result of historical practice and acquiescence than of formal judicial decision, the president has acquired constitutional powers that could not otherwise be justiﬁed, especially in the realm of foreign affairs.18 Executive powers tracing as much to the unwritten as to the written Constitution include those to order the armed forces into sustained battle without congressional authorization19 and to enter so-called executive agreements. Although often not approved by Congress in any way, executive agreements possess the same force of law as statutes and treaties.20 To save the idea that the Constitution is the supreme law that must prevail in collision with all other law, a skeptic of my claim might adopt any of three positions. A ﬁrst, obvious stance is that permitting precedent and practice to prevail over what otherwise would be the best interpretation of the written Constitution is itself unconstitutional and violates the Supreme Court’s obligation of constitutional ﬁdelity. As we saw in Chapter 1, some originalists take this view, but most do not. There are both practical and theoretical difﬁculties with this position. As a practical matter, if a large gap exists between doctrine and Constitution (as many originalists believe), then rejecting all erroneous precedent would be costly and possibly chaotic. As a theoretical matter, the difﬁculty with the view that what otherwise would be the best interpretation of the written Constitution must always prevail over erroneous precedent is that settled practices of acceptance deﬁnitively resolve the question the other way. Among Supreme Court Justices and within the constitutional community more generally, there exists a strong convergence of views that certain constitutional conclusions are not reasonably open to reconsideration, even if they were initially in error.21 In defense of the view that the written Constitution stands alone as the supreme law that must always prevail over other law, a second possible stance is that judicial precedent and seemingly settled practices somehow become part of the Constitution on a par with the text itself. But this view could not explain why ﬁdelity to the Constitution sometimes requires that

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erroneous precedent and misbegotten practices should be rejected. Precedent and practice are sources of constitutional law distinct from the written text. A third position is that the written Constitution actually provides for its own partial displacement or at least for its own mediation by judicial precedent and, possibly, by judicial decisions to treat otherwise dubious but entrenched practices as constitutionally valid.22 The argument would be that the Constitution plainly contemplates courts’ exercising “judicial power”; that judicial power is power not only to interpret the written Constitution but also to establish reasonable implementing norms and to endow precedents with binding effect; and that according authority to Supreme Court precedents and possibly to norms necessary to justify entrenched practices is therefore authorized by the Constitution itself. This argument, however, proves either too much or too little. If it proves that the Constitution authorizes courts to develop doctrine as they will, then it proves too much; if the Constitution made itself wholly subject to judicial revision, it could not provide a solid foundation for any conclusion. If, instead, the argument proves that the Constitution contemplates the bounding of judicial and other powers (for example, to establish precedent with binding authority) by legal norms that cannot themselves be derived from the written text, then the argument proves too little; it effectively concedes both the necessity and the existence of an unwritten constitution. Just as the written Constitution does not always furnish the law that prevails over all other law, at least when the term written Constitution is used to exclude the mediating effect of judicial precedent and unwritten constitutional norms, neither does it conclusively bound the powers of the most important institutions of government. Many of the relevant points have emerged already. The recognized powers of the legislative and executive branches have been shaped by historic and accepted practices, often developed under pressures of felt practical necessity. For example, the currently prevailing bounds of presidential powers in the domain of foreign and military affairs,23 or of congressional power under the Commerce Clause,24 could not plausibly be derived from the written Constitution without heavy reliance on unwritten constitutional norms. A similar situation obtains with respect to the power of the judicial branch. As I have suggested, the Supreme Court’s authority to endow its precedents with power to trump what otherwise would be the best interpretation of the written Constitution cannot be derived from the written Con-

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stitution alone. Rather, the authority of Supreme Court precedent—which is inseparable from the authority of the Court itself—ultimately traces to practices of acceptance that constitute judicial power as we know it.25

The Unwritten Constitution: Adjudicative Norms Beyond the Supreme Court’s power to establish binding precedents, nearly the entire scope of judicial power to interpret and implement the written Constitution is deﬁned by norms that are themselves extra-Constitutional in the capital-C sense. For example, standards specifying the relevance of historical understandings, the proper roles of principle and prudence, and the deference due to other institutions of government cannot be derived directly from the written Constitution. Nonetheless, in view of the importance of norms of adjudication both in deﬁning the scope of judicial power and in specifying the criteria for identifying the supreme law, such norms deserve to count as constitutional in status.26 There is, I recognize, an obvious problem about counting norms of adjudication as part of the unwritten constitution: just as it is impossible to derive such norms directly from the written Constitution, so it may prove impossible to base their authority squarely on acceptance. Within constitutional practice, methodological disagreement is rampant; the status of many purported norms is widely controverted. To take just a single well-known example, Justices Scalia and Thomas frequently profess adherence to originalist norms;27 other Justices deny that those norms always hold ultimate authority.28 Nor does anyone believe that disputes such as these could be resolved decisively by a Supreme Court majority in a particular case. The Justices generally feel free to reject those purported adjudicative norms with which they disagree.29 This is a forceful objection to treating norms of adjudication as aspects of an unwritten constitution, but ultimately not a fatal one. For one thing, there is in fact broad consensus that many adjudicative norms exist—for example, the norms that courts should follow even erroneous precedents in the absence of a strong reason not to do so30 and that statutes should be interpreted to avoid constitutional difﬁculties.31 Disagreement persists about precisely how the relevant obligations should be stated and applied, but this is equally true with respect to many provisions of the written Constitution. Furthermore, it is simply impossible to participate in constitutional argu-

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ment without assuming the existence of binding adjudicative norms. We cannot make sense of our practice, or account for the constraints that we feel when participating in it, or intelligibly attempt to persuade others to come to our views about how particular matters ought to be resolved, except on the assumption that unwritten norms exist.32 Under these circumstances, the claim that there are no unwritten norms of constitutional adjudication has no foundation in the felt experience of those who participate in constitutional debates in good faith. To be sure, the culture of constitutional debate is diverse and argumentative. Different participants may assume or posit the existence of different unwritten norms, or may make different assumptions about agreed norms’ extension or weight. Even so, the disagreement among active participants in constitutional practice is not about whether adjudicative norms exist, but about how those norms would best be speciﬁed. In this context, to speak of norms of adjudication (and of an unwritten constitution) is partly to refer to a convergence of views (about matters such as the authority of precedent), but partly also to refer to what anyone must assume or posit in order to participate intelligently in constitutional debate.

An Objection Answered When I assert that the written, capital-C Constitution does not exhaust “the constitution” of the United States, and thus that an important part of the American constitution is “unwritten,” a critic might object that I am only playing with labels. It is familiarly understood that courts must interpret the Constitution. In addition, most observers would probably recognize that norms of constitutional interpretation are distinct from the Constitution itself. What point, it might therefore be asked, is served by introducing the further idea of an unwritten constitution?33 Distinguishing between the written and unwritten constitutions helps illuminate two kinds of limits on the role played by the written Constitution in our constitutional order. Some are the necessary limits of logic and language. No written constitution could provide all the rules for its own interpretation; the question could always arise how those rules should be interpreted, and there would need to be appeal to some extra-Constitutional authority.34 In some sense, the existence of an authoritative, written, capital-C Constitution (whether in the United States or anywhere else) there-

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fore requires the existence of rules or practices that the Constitution does not itself create. Crucially, however, the limits on the role of the written Constitution in our constitutional order cannot all, or even mostly all, be traced to logical or linguistic necessity. Some reﬂect the particularly large signiﬁcance of unwritten norms in contemporary American constitutional practice. Neither logical necessity nor ordinary linguistic practice requires that judicial precedent and norms reﬂected in entrenched practice should sometimes prevail over what otherwise would be the best understanding of a written constitution. In another constitutional regime, the powers of central institutions of government might be ﬁxed much more deﬁnitively by the ordinary meaning of constitutional language, as it would be understood by an intelligent native speaker with some grasp of history and context but no specialized training in constitutional argument and adjudication. We therefore learn something important when we grasp the enormously signiﬁcant role played by our unwritten constitution (for better or for worse) in authoritatively providing the law that prevails over all other law and establishing and bounding the powers of central institutions of government. To understand American constitutional law, anyone needs to know a great deal more than how the words of the written Constitution were historically understood or what they would naturally be taken to mean as a matter of ordinary English usage. The American constitution—in the small-c sense—is largely constituted by norms of a highly specialized argumentative and adjudicative practice.

Questions of Legitimacy The notion that much of the Supreme Court’s role is authorized by an unwritten constitution might be cited as an indication of what many observers—and particularly those who object to judicial practices that depart from the original understanding—have portrayed as a legitimacy crisis in constitutional law.35 The term legitimacy is a slippery one, often invoked but too seldom deﬁned.36 For the most part, legitimacy arguments refer to concerns about, and ultimately assert or imply answers to, a compound question such as: “By what moral right does the government, or an institution of the government such as the Supreme Court, hold the powers that it holds, and by what moral right does it then exercise those powers in a particular way?”37 The unwritten constitution does indeed raise legitimacy issues, but they are

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not so different from those presented by the written Constitution as is often thought.

Questioning the Legitimacy of the Unwritten Constitution Nearly everyone assumes the legitimacy of the written Constitution. Nearly everyone also accepts the legitimacy of exercises of power that can be shown to be directly authorized by the written Constitution, though there is much disagreement about what should count as direct authorization. By contrast, many view the legitimacy of what I have termed the unwritten constitution, if any, as acquired by what Justice Scalia has called “a sort of intellectual adverse possession.”38 The idea seems to be that nonoriginalist precedent, for example, or the adjudicative norms that permit the Supreme Court to create doctrines that do not perfectly reﬂect constitutional meaning, need to be accepted as less bad than the alternative but should be regretted nonetheless. On this view, although it is too late to turn back, it would be better if our written Constitution had played the largest possible role, and unwritten norms had played the smallest part imaginable, in furnishing the supreme law and deﬁning the powers of governmental institutions. This is certainly a possible position, but I sometimes question whether anyone truly holds it. Despite evidence suggesting a contrary historical understanding,39 how many originalists really think that it would have been better for the Supreme Court to tolerate legislative apportionment schemes that allowed political minorities to dominate state legislatures, or to have ruled that the First Amendment’s Free Speech Clause establishes only narrow prohibitions against administrative censorship and possibly “seditious libel” prosecutions, or to have decided Brown v. Board of Education the other way? (At least one prominent originalist, Judge Robert Bork, has advanced improbable arguments purporting to justify all of these decisions on originalist grounds—leading Judge Richard Posner to conclude that Judge Bork is really a “pragmatist” in originalist guise.)40 To the extent that this rhetorical question has bite, it is admittedly directed only at originalists and not against those who, for example, might think it impermissible for the Court ever to underenforce constitutional norms. Nonetheless, I remain doubtful that many critics could sustain a consistent, principled objection to unwritten constitutional norms that permit the Court to create a gap between constitutional meaning (as they would specify it) on the one hand and enforcing doctrine on the other.

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The Impossibility of Grounding Legitimacy in Consent Claims about constitutional legitimacy typically presuppose that legitimacy, if it exists at all, must rest on either actual or implied consent.41 The written Constitution, it is widely assumed, enjoys the legitimacy that consent confers, whereas the unwritten Constitution does not. In truth, it is impossible to predicate constitutional legitimacy on consent at all. Legitimacy rests instead on the partly analogous but weaker, often passive, and therefore appropriately contested foundation of widespread acceptance of reasonably just institutions. Many appear to believe that consent legitimates the written Constitution in much the way that Ulysses’ consent justiﬁed his being bound to the mast.42 In this view, we know, for example, that there should be broad freedom of speech, even for the thought we hate, but we fear that we will weaken in times of stress and therefore have willingly bound ourselves to the First Amendment. Similarly, we know that race discrimination is wrong, but worry too that we may succumb to prejudice, and thus bind ourselves to the Equal Protection Clause and authorize the Supreme Court to hold us to our own ideals. The image is beguiling, but it fails to ﬁt the reality.43 First, there is the fact of plurality and reasonable disagreement. Never has every individual consented to the Constitution. Moreover, even if most people actually did consent, the legitimacy of coercing dissenters would surely depend on the justice of the regime that the Constitution establishes; majority consent could not legitimate tyrannizing the minority. A further, deeper problem is that most native-born citizens living today have never consented to the Constitution as a means of limiting our own future choices. Most of the Constitution was written and ratiﬁed over two hundred years ago. The framers and ratiﬁers may have wanted to bind themselves and their posterity, but the choice of the Constitution as the instrument of restraint was theirs, not ours.44 In the face of the temporal gap between us and the framers and ratiﬁers, efforts to legitimate the written Constitution by consent necessarily rely on a notion of “constructive” rather than actual consent.45 Perhaps everyone, or nearly everyone, either would or ought to consent to be bound by the written Constitution. The argument might go like this: Every reasonable person would want there to be a constitution—a charter establishing a government, identifying the law that prevails in collision with other law, and deﬁning the

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powers of governmental institutions in ways that respect individual rights. In light of widespread disagreement about ultimate ideals, no one could reasonably demand a constitution that she thought perfect; if motivated to reach agreement, reasonable people would accept compromises.46 Moreover, if motivated to accept a reasonable compromise, most Americans might, or perhaps should, accept the written Constitution as a focal point for agreement. Even if not perfect, our Constitution is sufﬁciently fair and representative of nearly everyone’s values so that everyone could reasonably be expected to consent to it, as long as enough others were willing to consent to it also. Hypothetical consent arguments are notoriously treacherous.47 I may have made this one especially so by failing to work out crucial details. Yet I see no reason to go further. However carefully the details were elaborated, any argument for hypothetical consent to the written Constitution seems doomed to falter over the following difﬁculty: surely not everyone could be reasonably expected to agree to the written Constitution if it were somehow severed from the unwritten constitution, so that it did not clearly forbid invidious discrimination based on race and gender, or establish the one person, one vote principle, or forbid sectarian prayer in the public schools, and so forth. Whether we talk about the extent to which people living today would actually consent to the Constitution or whether we talk about what people could reasonably be expected to consent to, the discussion will be artiﬁcial and misleading insofar as anyone claims consent to the written Constitution in abstraction from the unwritten constitution. Contemporary understandings of the written Constitution are simply too suffused by unwritten constitutional norms. This is not to suggest that what I have called the unwritten constitution could itself be “legitimated” by an argument from hypothetical consent. There is too much controversy over too many elements. On the contrary, constitutional legitimacy—whether of the written or unwritten constitution—cannot be founded on consent at all.

An Alternative Foundation for Legitimacy In thinking about issues of political legitimacy, we should begin by rejecting views of either the written or unwritten constitution as a self-willed set of obligations and prohibitions, put in place by us (the people living today) in order to bind our own future freedom. We should instead regard the consti-

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tution, in its large- and some of its small-c dimensions, as the law that literally constitutes the people of the United States as a political community.48 It is the constitution, and in particular the widespread acceptance of the written Constitution as binding law, that links our political destinies under a regime of common institutions, common rights, and common responsibilities. For anyone born into this constitutive relationship, it may be possible to opt out—by emigration, for example, or by fomenting a successful revolution. Otherwise, however, we are constituted as a people as a matter of political fact, and we must ﬁnd ways to get on together despite our many differences. Within this picture, the legitimacy of the unwritten constitution rests on the same conceptual foundations as that of the written Constitution.49 Regarding them both, the ﬁrst crucial point is the fact of widespread acceptance. The Constitution is widely accepted as law; so are at least some elements of what I have described as the unwritten constitution. With respect to the unwritten constitution, in particular, the level of awareness and of conscious, critical acceptance may vary enormously from engaged judges and lawyers at one extreme to relatively unengaged, passively acquiescing citizens at the other.50 In a reasonably democratic society, however, legal practices could not be sustained unless they were broadly accepted, at least in a minimal sense. Second, there is a moral obligation of citizens to support reasonably just legal systems that exist (largely as a result of acceptance) within their communities.51 Decent human lives are not possible without law. If an existing legal system is reasonably just, it deserves to be supported unless there is a very good prospect of its swift and relatively nonviolent replacement by more just institutions. Third, both the written Constitution and the central, unwritten constitutional norms that surround and suffuse our understanding of the written Constitution are reasonably just. They establish the rule of law, provide at least tolerable guarantees of individual rights, and create reasonable structures for political democracy. Within this framework, the legitimacy of the written and unwritten constitutions depends on a conjunction of acceptance and reasonable justice. Governmental actions authorized by the written and unwritten constitutions, including actions taken by the courts, will normally be legitimate also. Room remains for dispute about whether and how accepted practices could be improved, including by judges, and about which practices and decisions would be optimal. But these important normative questions go beyond issues of basic legitimacy.

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Legitimacy and the Sociology of Acceptance Although legitimacy claims for the written and unwritten constitutions rest on the same conceptual footing, there are important sociological and practical differences. First, precisely because the unwritten constitution is unwritten, there is, as I have acknowledged, especially widespread disagreement about how to specify its contents. Although unwritten constitutional norms often must be posited to explain what is widely done and accepted as legitimate—such as the treatment of some “erroneous” Supreme Court precedents as entitled to prevail over what otherwise would be the best interpretation of the written Constitution—different participants in our constitutional practice may posit different unwritten norms. The resulting disagreements are not fatal to the idea that an unwritten constitution exists. There is also widespread disagreement about which norms are explicit or implicit in the written Constitution. Nonetheless, there is an added element of uncertainty and contentiousness concerning exactly which norms the unwritten constitution comprises. A second difference is partly related to the ﬁrst, but reaches both further and deeper. As a sociological matter, there can be little doubt that the written Constitution is widely perceived as having a claim to legitimacy that the unwritten constitution does not. To the extent that acceptance and authority depend on perceived legitimacy, as undoubtedly they do to some extent,52 acceptance of the written Constitution is more securely rooted than is acceptance of most (though possibly not all) elements of the unwritten constitution. The Supreme Court manifestly recognizes the written Constitution’s sociologically privileged claim to acceptance and legitimacy. Among other things, the Court’s sensitivity to this point undoubtedly reinforces what I have described as the unwritten constitution’s partly subordinate and entirely complementary status: all constitutional holdings must be reconciled with the language of the written Constitution; the unwritten constitution mediates the written Constitution, but in no case displaces it. Even to put the matter this way, however, does not wholly do justice to the sociology— or perhaps even to the immanent psychology—of judicial practice. I have argued that the best explanation of our constitutional practice requires a distinction, authorized by the unwritten constitution, between constitutional meaning and the doctrinal tests crafted by the Supreme Court. But the

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Court itself seldom acknowledges such a gap. More often it suggests that the relationship between meaning and doctrine is one of identity.53 I have expressed several times in this book my belief that implicit or explicit claims of unity between constitutional meaning and constitutional doctrine are betrayed by the plain facts of Supreme Court practice, as described in my earlier discussions of extraordinary adjudication and doctrinal tests. It is admittedly an embarrassment to my central thesis that the Justices themselves might feel constrained to defend their work as interpretation, not implementation, and as directly licensed and mandated by the written Constitution. But any rationalizing account of the Court’s practices would need to identify inconsistencies and mistakes. In my view, the thesis that judicial doctrine either does or could perfectly reﬂect constitutional meaning fails to cohere with other, more central and entrenched elements of constitutional practice and must be rejected as error on that ground. In any event, I take the Court’s eagerness to associate its work product as closely as possible with the written Constitution as strong evidence of the partly perceived, partly feared difference in sociological legitimacy between the written and unwritten constitutions.

Fidelity and the Written Constitution I must confront one further objection to my claim that our written Constitution is complemented by elements of an unwritten constitution. According to this objection, the account that I have offered is implausible, and should presumptively be disfavored, because it depicts our constitutional regime as conﬂicted if not incoherent at its core. As commentators have long asserted, the whole purpose of a written Constitution is to establish binding law that deﬁnes the basic powers of institutions of government.54 If an unwritten constitution can modify or frustrate this purpose, then my account might appear to mock the idea of a constitution that is written. In assessing this objection, it is important to clarify what someone might mean in talking about “the purpose” of the written Constitution. As I have argued repeatedly, we are not bound by the Constitution because people living long ago commanded or intended that we should be so bound; the status of the Constitution as law rests on contemporary practices of acceptance. Nor, for reasons that I have explained, should we be misled by notions that we have actually consented, or that if we were reasonable we necessarily would consent, to being bound by the written Constitution and it alone.

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The argument, rather, would have to be that it is either incoherent or fatuous for us to purport to accept the ultimate legal authority of a document that claims exclusive constitutional status for itself, while at the same time according small-c constitutional status to extra-Constitutional norms. If framed as a claim about linguistic coherence, the argument is easily refuted: anyone actually purporting to accept the ultimate legal authority of the Constitution could simply append the qualiﬁcation “subject to understandings and limitations reﬂected in the unwritten constitution.” As I have noted, unwritten norms mediate, but do not displace or contradict, the written Constitution. The other, more potent version of the objection would be that, if we accept the authority of an unwritten constitution, then we are guilty of fatuousness when we maintain that the Constitution (subject to understandings and limitations reﬂected in the unwritten constitution) is ultimate law. Even if this claim is literally true, the argument would go, it is nearly meaningless until the contestable elements of the unwritten constitution have been revealed. Moreover, the argument might continue, the inﬂuence of the unwritten constitution is so great as to make a mockery of the written Constitution. This argument founders at its ﬁnal step. It is true that the unwritten constitution is of large importance in our constitutional regime. But the role played by the written Constitution is also enormous. As I have suggested in previous chapters, the written Constitution provides a vital focal point for legal and political agreement in a society otherwise riven by reasonable divergences of opinion. At a minimum, the written Constitution structures conversation about what can and ought to be done consistent with the fundamental law.55 It is probably also fair to say that the historically understood or linguistically natural meanings of the written Constitution always prevail in the absence of what are experienced as particularly good reasons why they should not.56 Finally, the written Constitution almost certainly fortiﬁes those, especially judges, who are disposed to enforce constitutional values despite popular objection.57 Under the circumstances, it hardly seems fatuous to claim legal authority for the written Constitution, notwithstanding the existence of an unwritten constitution. I apologize for the triteness of the formulation, but trying to imagine American constitutionalism without the written Constitution is like trying to imagine Hamlet without the prince. It would be equally misguided, however, to think that we could under-

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stand American constitutionalism by reference to the written Constitution alone. We also have an unwritten constitution. Among other things, that unwritten constitution assigns the Supreme Court the role of implementing the written Constitution, as mediated by unwritten constitutional norms, through doctrine that reﬂects but is not always identical with the Justices’ personal views about the most ideal speciﬁcation of constitutional meaning.

CHAPTER

8 Against Populism and Methodological Pragmatism

According to the account that I have advanced thus far, the Supreme Court appropriately engages in moderately robust or independent judicial review, but remains subject to constraints that arise from the written Constitution and from surrounding, unwritten constitutional norms. These include constraints involving cost, feasibility, and democratic acceptability. Apart from its quarrels with theories that I have discussed already, an account such as mine invites criticism from two increasingly familiar, fundamentally opposed positions. One important challenge comes from “populist” critics who believe that the Court should at least play a smaller role and possibly should renounce judicial review altogether. From nearly an opposite perspective, a strand of constitutional “pragmatism” maintains that the Court should exercise even more independent, unconstrained judgment. Without pretense of comprehensiveness, this chapter addresses the most fundamental, bracing versions of the populist and pragmatist challenges (but, I emphasize, only the strongest and most bracing versions).

Constitutional Populism Constitutional populists attack judicial review as elitist, antidemocratic, and an obstacle to vital politics.1 As these critics correctly point out, judges and Justices tend to come from educationally and ﬁnancially elite backgrounds; historically, they have been disproportionately white and male.2 To vest the power of judicial review in a life-tenured judiciary diminishes the domain of politics and the power of other political actors, sometimes including voters. Some critics think this situation unfair in principle.3 Others voice concern that robust judicial review may frustrate progressive4 (or, interestingly, conservative)5 politics or cause harm to women’s interests.6 Given the range of 127

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arguments challenging the fundamental presuppositions of judicial review, I could not hope to do justice to them all. If one work could serve as an exemplar of the skeptical position, it might be a recent book by Mark Tushnet, Taking the Constitution Away from the Courts, which argues that judicial review ought to be abolished altogether because it constitutes an unfair impediment to progressive political action.7 As I acknowledged in the Introduction, it is impossible to refute opponents of traditional judicial review with watertight arguments. Too much depends on predictions about whether judicial review will lead, on average, to better judgments of constitutional principle and more successful constitutional implementation over time. When this issue is joined, each side can cite familiar examples and counterexamples. Proponents of robust judicial review will point to Brown v. Board of Education,8 skeptics to Lochner v. New York.9 In addition, there will be reasonable disagreement about whether many important decisions, such as Roe v. Wade,10 produced better or worse implementation of constitutional values than otherwise would have occurred. For reasons stated in the Introduction and elaborated in Chapters 1 and 4, I side with those who believe that modestly robust judicial review has tended in the past to do more good than harm and is likely to continue to do so in the future, without too much damage to interests in the fair, democratic allocation of political power. Among other things, good judicial review takes account of issues of democratic acceptability. In addition, as Professor Ely has emphasized, judicial review can help to ensure that the political process is fairly open and democratic.11 In a recent book, Jeremy Waldron argues that reasonable disagreement deeply embarrasses the case for judicial review. It is impossible to argue persuasively that judicial review produces better outcomes, he maintains, when reasonable people disagree about what counts as better.12 The point is a shrewd one, but not conclusive. The question whether to have judicial review is one of institutional design. With respect to this question, people of otherwise diverse substantive views (who thus may disagree sharply about the appropriate resolution of particular cases) may have reason to believe, based on analogies to other situations involving the exercise of practical reason, that carefully considered decisions of constitutional principle (such as courts are likely to make) will tend on average to be better than less carefully considered decisions made by ofﬁcials and institutions with other pressing concerns. In any event, the judgment to establish judicial review is at least a reasonable one, which now is deeply enmeshed in our structure of

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government and could not be rooted out without costs likely to exceed the gains. Although my support for relatively robust judicial review ultimately rests on considerations such as these, further insight may come from focus on some intensely practical questions—such as those that I have emphasized throughout this book—about the utility of judicial review as a device for implementing the Constitution. From a practical perspective, among the most striking features of our constitutional system is its plurality. The challenge of implementing the Constitution arises in a nation of ﬁfty states, tens of thousands of local governments,13 and more than 19 million governmental ofﬁcials and employees.14 Should each be able to interpret the Constitution free of judicial oversight? For the most part, even skeptics of judicial review do not appear to believe that it should be up to the police ofﬁcer on the beat to decide what counts as an unreasonable search or seizure forbidden by the Fourth Amendment. Nor would it seem workable for individual municipalities and their ofﬁcials to pass authoritatively on constitutional questions in deciding who should be permitted to speak or vote within their jurisdictions. If we want the Constitution implemented successfully, we should insist that decisions of constitutional principle be made, or at least reviewed, by institutions structured to deliberate about principles in a thoughtful, representative way. Even Professor Tushnet does not entirely disagree. Acknowledging the need to have courts review ofﬁcial actions, he suggests that review might occur pursuant to subconstitutional principles of “administrative,” rather than “constitutional,” law—as roughly happens in the British system.15 Yet he offers few details about how such a system would operate. Possibly Congress or the state legislatures would enact statutes limiting the scope of administrative ofﬁcials’ discretion; perhaps the courts could formulate applicable principles as a matter of common law. In the absence of a more ﬂeshed-out proposal, it is difﬁcult to estimate the costs of shifting to a new basis for review of administrative action, including possible costs in fairness to individuals. My own guess is that the costs would be considerable, especially in the period of transition, and that the ultimate outcome would involve considerable disparities, with more review (and more justice) in some contexts than in others. The principal and perhaps exclusive beneﬁt, as Tushnet imagines it, appears to be that judicial decisions rendered as a matter of “administrative” rather than “constitutional” law would be subject to legislative override. For critics of judicial review, the paradigm case of democracy in action—

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with which the courts should not interfere—involves legislatures and other broadly representative bodies. But it would constitute a vast change in our institutional arrangements, and for the surrounding conception of political democracy, for state legislative decisions not to be subject to judicial review under the federal Constitution. Article VI plainly speciﬁes that the Constitution is the “supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”16 At least in a general sense, the Civil War amendments express a further distrust of states to meet their federal constitutional obligations in the absence of judicial enforcement.17 Apart from speciﬁc bits of constitutional text, successful implementation of a national constitution requires at least reasonable national uniformity in the deﬁnition and enforcement of constitutional rights. To be sure, we tolerate a great deal of disuniformity in the name of federalism. But our sense of national identity as a people literally constituted by the Constitution is linked indissolubly with ideals of common constitutional rights. Some of the interest in uniform enforcement ﬂows from political, ﬁnancial, or technical interdependencies. Suppose, for example, that one state were to forbid political editorials on election day, so that voters could not be swayed by arguments to which candidates had no effective opportunity to respond. In an era of national media, the First Amendment right to freedom of the press should not mean one thing in Alabama (which once did have a law of this kind, until the Supreme Court invalidated it)18 and another in Minnesota. Wholly apart from technical and instrumental linkages, however, national ideals require national enforcement as an afﬁrmation of our shared nationhood. To take only plain examples, the guarantee of equal protection and freedoms of speech and religion, uniformly enforced throughout the nation, are among the most important ties that bind us together as a people. Judicial review of acts of Congress undoubtedly raises different issues. All of the nation’s people are represented in Congress. With respect to some issues, however, Congress seems an interested party. Suppose that Congress were to pass a bill, over the president’s veto, forbidding the president to ﬁre cabinet ofﬁcers without congressional approval (as, again, Congress once did).19 In cases pitting Congress against the president, the interest in fair and effective constitutional implementation calls for a judicial umpire. Congress is equally an interested party, and the desirability of judicial review seems equally plain, when a statute is challenged as exceeding the scope of federal legislative authority or as threatening the structurally grounded prerogatives of the states.20

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With respect to legislation affecting individual rights, Congress’s judgment may be less suspect. Nonetheless, there often may be good reason to question whether Congress—any more than a police ofﬁcer on the beat—has actually deliberated carefully about the speciﬁc constitutional issues that arise in statutory application. It would be possible, I suppose, that courts might respond to the resulting difﬁculties by developing and applying robust “canons of interpretation” specifying that otherwise enforceable statutes should be presumed inapplicable (as a matter of statutory construction) in cases of hardship or unfairness. Again, however, the impulse to reestablish a surrogate for judicial review testiﬁes forcefully to the value of the institution. There remains, indisputably, a category of cases involving individual rights in which the question is whether the Supreme Court should be permitted to upset a considered congressional judgment—or, conversely, whether Congress should be able to reverse a Supreme Court holding.21 Here the case for comparative Supreme Court competence admittedly grows weaker. As I argued earlier, the Court should recognize that it shares responsibility for constitutional implementation with Congress and the people. In particular, the Justices should reverse their decision in City of Boerne v. Flores22 and hold that Section 5 of the Fourteenth Amendment authorizes Congress to enforce reasonable interpretations of constitutional guarantees that go beyond those previously propounded by the Supreme Court. Where Congress has apparently concluded that a constitutional guarantee affords less protection than the Court might otherwise have recognized, I have also suggested that this judgment should sometimes receive weight in the Court’s deliberations. Even with respect to considered congressional judgments, however, practical concerns about effective constitutional implementation call for lines to be drawn. (These, I repeat, are in addition to the arguments, canvassed earlier, calling for ultimate decisions of constitutional principle to be made by a deliberative institution not subject to direct, short-term political pressures.) In the myriad cases involving judicial review of acts of individual ofﬁcials, local boards, and state agencies, the Court necessarily develops a framework of rules, principles, and tests. An occasional congressionally mandated exception to otherwise applicable doctrines might do little harm. But if overruling legislation that diminished the protection of rights became at all common, the resulting patchwork would not only be inelegant; it would sow confusion and breed disrespect for constitutional law. To sum up the case against constitutional populism, there is a strong if disputable case for judicial review even in the most contested category of

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cases. What is more, there are many contexts in which even skeptics must recognize that if judicial review were abolished, some unspeciﬁed substitute would need to be invented in order to ensure effective implementation of constitutional norms. In light of the practical need for judicial review or a plausible surrogate, judicial review has served us at least sufﬁciently well so that there is no adequate justiﬁcation for scrapping it and trying to develop an admittedly necessary substitute—which could hardly be free of imperfections of its own—from the ground up.

Methodological Pragmatism My account of the Supreme Court’s role has emphasized the Justices’ authorization to appeal to a broad range of considerations in exercising practical judgment. But I have also maintained that the Court’s role is deﬁned, and thus bounded, by written and unwritten constitutions to which it owes obligations of ﬁdelity. Whereas populist critics castigate approaches such as I have defended as elitist and antidemocratic, a nearly opposite approach asserts that Supreme Court Justices should regard themselves as having even greater ﬂexibility to do what they consider wise or prudent. In his article “Pragmatic Adjudication,”23 Judge Richard Posner argues that judges and Justices should make whatever decisions they think best for the future, “unchecked by any felt duty to secure consistency in principle with what other ofﬁcials have done in the past.”24 I call this bracing position “methodological pragmatism.” As deﬁned by the negative claim that judges lack duties of ﬁdelity to legal rules and authorities (“what other ofﬁcials have done in the past”), methodological pragmatism is distinct from “wealth maximization” and other substantive theories sometimes advanced under the “pragmatist” mantle—including theories elsewhere championed by Judge Posner himself.25 But my interest here is not in identifying the best version of pragmatist legal theory, nor in synthesizing Judge Posner’s selfstyled pragmatist writings. It is, rather, in evaluating the bold, negative assertion that judges should eschew obligations of interpretive ﬁdelity and aim instead to do whatever would be best for the future, all things considered. The central claim of methodological pragmatism (as thus deﬁned) is usefully provocative. Within our constitutional practice, judges and especially Justices have enormous room to exercise judgment. Seldom in extraordinary cases can they point to a single result and assert “the law made me do it.” As I have argued, the judicial function encompasses a degree of practical

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statespersonship and authorizes substantial creativity, especially in devising doctrinal tests to implement constitutional norms. In addition, I agree wholeheartedly with Judge Posner that the Supreme Court must attend carefully to likely consequences in framing doctrines that will work effectively in practice. (In this limited sense, I am something of a pragmatist myself.) Nonetheless, the bold claim of “Pragmatic Adjudication” on which I have focused here—that judges should make whatever decisions they think best for the future, “unchecked by any felt duty to secure consistency in principle with what other ofﬁcials have done in the past”—goes too far. If presented as a theory of the judicial role, it fundamentally mischaracterizes the ethos by which our constitutional law (including the unwritten as well as the written Constitution) is largely constituted. Within the constitutive understandings of our constitutional practice, judges and Justices must make lots of value-based judgments in order to expound and implement the law wisely. But those judgments are internal to law, not external to it. By counseling judges to act on individual judgments of what would make the future better, without obligation of ﬁdelity to legal authority, methodological pragmatism invites (even if it does not require) decisions that would offend both rule-of-law and democratic values; it would also devalue the notion of a constitutional “right.” At the end of the day, I am unsure how far Judge Posner might disagree with the general spirit of my argument. In other writing, he has denounced the “false dichotomy” between a rigidly determinist conception of adjudication and a view of the Supreme Court as a “naked power organ.”26 This, I believe, is the voice of good sense. Hearing it, I repeat that the criticisms offered here do not extend to all self-described pragmatist theories, or possibly even to all the accounts of pragmatism that Judge Posner himself has offered.27 My target is narrower, conﬁned to the strand of methodologically pragmatist thought that characterizes judges as unchecked by any “duty to secure consistency in principle” between their judgments and the norms established by the written and unwritten constitutions. Needed is a richer conception of the judicial role, free of “false dichotom[ies],”28 which recognizes that judges exercise practical judgment without portraying them as lacking duties of constitutional ﬁdelity.

Conclusion: Beyond History and Philosophy

In recent decades, constitutional scholarship has been captivated by theories that ask us to imagine the Supreme Court as a collection of either historians or moral philosophers, who ought to focus almost exclusively on historical sources or legally entrenched principles in an effort to discern the Constitution’s one true meaning. In contrast, I have argued that we should think of the Court as composed of practical lawyers with a multifaceted function of “implementing” the Constitution. Ideally practiced, the Court’s role would require historical knowledge and moral vision, but would also call for practical judgment. Shaping doctrine successfully requires an acute sense of institutional, sociological, and psychological dynamics, as well as wisdom about how to balance competing values. The Justices are statespersons as well as truth tellers. Among other things, the mission of the Court in implementing the Constitution is not the sum of the individual obligations of each of nine Justices to record his or her personal views about what the Constitution means in every case. The Justices must collaborate, and sometimes compromise, in order to establish reasonably stable and workable rules of constitutional law. The Supreme Court’s most important work typically occurs in the loosely deﬁned class of cases that I have termed “extraordinary.” In extraordinary cases, no existing doctrine resolves the issue before the Court—or, alternatively, a majority of the Justices believes that existing doctrinal structures must be reassessed in light of more fundamental concerns. Typically in such cases, the Court confronts arguments of widely varied kinds. These include arguments based on the constitutional text; historical understandings; precedent; and various, sometimes competing, ideals, policies, and values. The challenges to the Court are multiple. Within a framework of constitutional argument, the Justices must pursue what Professor Dworkin has termed a 134

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“moral reading” of the Constitution. But they must also weigh practical and institutional considerations in determining how ideals can successfully be put into practice without too much cost to other values rooted in the Constitution and in common sense. Much more often than is commonly recognized, a gap exists between constitutional norms and the implementing doctrines crafted by the Court. This is not necessarily a cause for regret. If uncertain about how the Constitution should be implemented in particular contexts—in the military, to take a plain example—the Court may give great deference to the judgments of ofﬁcials of other branches, who are also charged with a responsibility of constitutional implementation. More pervasively, the Justices must reckon with the phenomenon of reasonable disagreement and with the practical and fairness-based challenges that it presents. For a long time now, judges and theorists have worried about the “countermajoritarian difﬁculty” that occurs when unelected courts give nondeferential answers to constitutional questions. In this book, I have pressed two correctives to traditional thinking. First, the vast preponderance of constitutional adjudication involves judicial review of decisions by low-level, often unelected ofﬁcials and by administrative agencies that lack a strong democratic mandate. Second, even many decisions by legislatures will not reﬂect carefully considered judgments about constitutional values. Nevertheless, robust judicial review raises serious issues about the appropriate allocation of political power. One concern involves the Court’s comparative competence to implement the Constitution effectively. Does it understand the costs and consequences of proposed doctrinal rules sufﬁciently well to justify deep judicial intrusion into the administration of governmental affairs? Another concern, in light of reasonable disagreement, involves the democratic acceptability of the Court’s judgments. By what right does it impose its views in opposition to the reasonable, competing judgments of others about what the Constitution will permit? Where future reasonable disagreement is a likely, serious prospect, I have argued that the Court should take the divergent views of others into account. The Justices’ task is not to construe the Constitution directly in light of their own unalloyed substantive views of freedom, equality, and democracy, for example, but to determine which conclusions a court can fairly derive from shared but contestable principles at a particular time. Reasonable disagreement should not paralyze the Court. Notwithstanding reasonable disagreement, judgments can be right or wrong, better or worse.

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Moreover, our tradition of relatively robust judicial review reﬂects a rationally grounded hope that the Court, having taken reasonable disagreement into account, can often resolve questions of constitutional principle better than other actors in the constitutional scheme. I have generally endorsed that tradition of relatively robust review, but subject to the caveat that the Justices should indeed take others’ reasonable views into consideration in deciding how the Constitution can best be implemented. After the Court fashions doctrine, the tests that it formulates have a powerful tendency—in what I have called “ordinary” cases—to shape argument and determine outcomes, even in the Court itself. This phenomenon is not so self-explanatory as is sometimes assumed. The Court is rightly regarded as a forum for the consideration of ultimate constitutional principle. Yet one important function of doctrine is to block direct appeals to underlying constitutional norms. The phenomenon of reasonable disagreement once again plays a vital role in explaining the Court’s characteristic functions. Within constitutional law, there is nearly pervasive room for reasonable disagreement about how the Constitution would optimally be construed and implemented. In this context, doctrine provides a practically necessary focal point for compromise among those (Justices and others) motivated to reach reasonable agreement. My emphasis on the Justices’ practical functions raises an issue of constitutional ﬁdelity. I have argued that the Justices sometimes propound doctrines that result in “overenforcement” and, more typically, in judicial “underenforcement” of constitutional norms. The question thus arises whether, in doing so, the Justices betray their duty of ﬁdelity to the Constitution. In response, I have argued that the United States, as a matter of fact and law, has an unwritten as well as a written constitution. The unwritten constitution mediates the written Constitution and, among other functions, substantially deﬁnes and “legitimates” the Court’s role in constitutional implementation. Within the framework of our constitutional law and practice, history matters deeply. As originalists emphasize, the Justices ideally would be good historians. But they would also be more than that. As devotees of the forum-ofprinciple model preach, ideal Justices would be ﬁrst-rate philosophers. But they would be more than that too. Although philosophical skills would be useful, the ideal Justice would also be rich in empirical knowledge, practical wisdom, and arts of accommodation. It should go without saying that our actual Justices are not ideal. This ac-

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knowledgement implies no disparagement, but it is crucially relevant to thinking about the Supreme Court’s proper role. From time to time, the Justices have the opportunity to be moral heroes. They do not always try to play that role, however, nor should we always regret their failure to make the attempt. In the face of moral and empirical uncertainty and reasonable disagreement, the path of modesty and restraint is often—not always, but often—wisest.

Notes

Introduction 1. See Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 186–187 (1996); Dean Alfange, “Marbury v. Madison and the Original Understandings of Judicial Review: In Defense of Traditional Wisdom,” 1993 Supreme Court Review 329, 366–367. 2. 5 U.S. 137 (1803). 3. The Federalist No. 78, 465 (Clinton Rossiter, ed., 1961). 4. Id. 5. Brown v. Board of Educ. of Topeka, 343 U.S. 483 (1954). 6. See, for example, Gayle v. Browder, 352 U.S. 903 (1956) (buses); Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955) (public beaches and bathhouses). 7. This certainly is the consensus view among legal historians, who note, among other things, that when the Equal Protection Clause was ratiﬁed in 1868, ﬁve northern states excluded black children completely from public education, while an additional eight states permitted segregated schools. Richard Kluger, Simple Justice 633–634 (1976). There was little or no evidence in the surrounding legislative history that either Congress in proposing the Fourteenth Amendment, or the states in ratifying it, meant to force a change in this practice. On the contrary, the Fourteenth Amendment was intended largely to constitutionalize the 1866 Civil Rights Act, see generally Alexander Bickel, “The Original Understanding and the Segregation Decision,” 69 Harvard Law Review 1, 11–40 (1955), and the principal sponsors of that Act speciﬁcally denied that it would force the integration of public education. See Statement of James Wilson, Cong. Globe, 39th Cong., 1st Sess. 1117–18 (1866). Indeed, the Reconstruction Congress that proposed the Fourteenth Amendment maintained segregation in the District of Columbia schools. See John P. Frank and Robert F. Munro, “The Original Understanding of ‘Equal Protection of the Laws,’ ” 1972 Washington University Law Quarterly 421, 460–462. Michael McConnell has recently dissented from the consensus view. See Michael McConnell, “Originalism and the Desegregation Decisions,” 81 Virginia

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Law Review 947 (1995). His argument depends largely on the ultimately unsuccessful, Republican-led effort in a subsequent Reconstruction Congress to forbid school segregation under the 1875 Civil Rights Act. For a response, see Michael J. Klarman, “Brown, Originalism and Constitutional Theory: A Response to Professor McConnell,” 81 Virginia Law Review 1881 (1995). Whereas Brown rested on the Equal Protection Clause, in the companion case of Bolling v. Sharpe, 347 U.S. 497 (1954), the Court held that segregated schooling in District of Columbia schools was forbidden by the Due Process Clause of the Fifth Amendment, which was ratiﬁed in 1791. So far as I am aware, no one has seriously contended that the Fifth Amendment was originally understood to prohibit race-based segregation by the federal government. Since Brown, the Court has held that the Fifth Amendment forbids race-based governmental decision making on the same bases as the Fourteenth Amendment. 8. See Engle v. Vitale, 370 U.S. 421 (1962); Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963). 9. For one thing, it is questionable that the Fourteenth Amendment was originally understood as making the Bill of Rights, and thus the Establishment Clause, applicable against state and local governments at all. See Thomas Grey, “Do We Have an Unwritten Constitution?” 27 Stanford Law Review 711–712 (1975). For another, it appears to have been a historical purpose of the Establishment Clause to protect state establishments of religion from congressional interference. See Joseph M. Snee, “Religious Disestablishment and the Fourteenth Amendment,” 1954 Washington University Law Quarterly 371, 379–389. If this is so, it is somewhat mysterious how incorporation of the Establishment Clause (if indeed it was intended) could have been meant or understood to ban state “establishment” of religion that the Clause was originally designed to protect. Finally, forceful arguments have been offered that the Establishment Clause was not originally understood to bar general state support for religion that did not explicitly prefer one sect over another, see, for example, Wallace v. Jaffree, 472 U.S. 38, 91–114 (1985) (Rehnquist, J., dissenting), or that did not require formal afﬁliation between the state and religious institutions. See Steven D. Smith, “Separation and the ‘Secular’: Reconstructing the Disestablishment Decision,” 67 Texas Law Review 955, 962–966 (1989). But see Douglas Laycock, “ ’Nonpreferential’ Aid to Religion: A False Claim about Original Intent,” 27 William and Mary Law Review 875 (1986). 10. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992); Roe v. Wade, 410 U.S. 113 (1973). 11. United States v. Nixon, 418 U.S. 683 (1974). 12. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 13. See Harry S. Truman, Years of Trial and Hope 539 (1956). 14. See United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (1989). 15. Printz v. United States, 521 U.S. 98 (1997). 16. See, for example, Raoul Berger, Federalism: The Framers’ Design 15–17 (1987);

Notes to Pages 3–7

17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34.

35.

36.

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Robert H. Bork, The Tempting of America: The Seduction of Law by Politics 143–146 (1990); Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 38– 47 (1997); Antonin Scalia, “Originalism: The Lesser Evil,” 57 University of Cincinnati Law Review 849, 862 (1989); Clarence Thomas, “Judging,” 45 University of Kansas Law Review 1, 6–7 (1996). For a historiography of originalism, see Barry Friedman and Scott B. Smith, “The Sedimentary Constitution,” 147 University of Pennsylvania Law Review 1, 11–33 (1999). See Chapter 1. See Ronald Dworkin, A Matter of Principle 69–71 (1986). See, for example, Ronald Dworkin, Freedom’s Law 2, 7–12 (1996). See Dworkin, Freedom’s Law 13; Ronald Dworkin, “Comment,” in Scalia, Matter of Interpretation 115, 119–126. See Dworkin, Freedom’s Law 7–12. 17 U.S. 316 (1819). Id. at 407. See Ronald Dworkin, Law’s Empire 266 (1986). See, for example, FCC v. Beach Communications, Inc., 508 U.S. 307, 313–314 (1993). Gertz v. Robert Welch, Inc., 418 U.S. 323, 327–328 (1974), quoting New York Times v. Sullivan, 376 U.S. 254, 279–280 (1964). See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 566 (1980). U.S. Const., amend. I. U.S. Const., amend. IV. See Superintendent v. Hill, 472 U.S. 445, 454 (1985). See Gerald L. Neuman, “The Constitutional Requirement of ‘Some Evidence,’” 25 San Diego Law Review 631, 663–664 (1988). Lawrence Gene Sager, “Fair Measure: The Legal Status of Underenforced Constitutional Norms,” 91 Harvard Law Review 1212 (1978). 384 U.S. 436 (1966). Miranda may be too explicit to be representative because the Court has acknowledged that its prescriptions are not uniquely dictated by the Constitution and has classiﬁed its central prescriptions as “prophylactic.” See, for example, Oregon v. Elstad, 470 U.S. 298, 306–307 (1985); New York v. Quarles, 467 U.S. 649, 657 (1984). As David Strauss has emphasized, however, many rules of constitutional law—including those protecting speech—are similarly “prophylactic” in the sense of protecting a broad range of conduct in order to guard effectively against harms to a relatively narrower set of constitutional values. See David Strauss, “The Ubiquity of Prophylactic Rules,” 55 University of Chicago Law Review 190, 294–207 (1988). For a discussion of the Supreme Court’s evolution of this norm, see Yale Kamisar, “On the ‘Fruits’ of Miranda Violations, Coerced Confessions, and Compelled Testimony,” 93 Michigan Law Review 929, 936–941 (1995). The Court afﬁrmed Miranda’s continuing validity, and held that Congress could

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41.

42. 43.

44. 45.

46. 47. 48.

Notes to Pages 7–10 not reject it by enacting a statute, in Dickerson v. United States, 120 S. Ct. 2326 (2000). See generally “Symposium: Fidelity in Constitutional Theory,” 65 Fordham Law Review 1247 (1997). See Dworkin, Freedom’s Law 2. 343 U.S. 483 (1954). The phenomenon of reasonable moral and political disagreement is at the heart of much of the best, recent work in political theory. See, for example, Amy Gutmann & Dennis Thompson, Democracy and Disagreement 1 (1996); John Rawls, Political Liberalism 54–58 (1993). For discussions of the relevance of disagreement in law, see generally Frank I. Michelman, Brennan and Democracy (1999); Jeremy Waldron, Law and Disagreement (1999); Cass R. Sunstein, Legal Reasoning and Political Choice (1996). Pressing this concern, some commentators have maintained that the Supreme Court should hold legislation unconstitutional only when it could not be sustained under any reasonable interpretation of the Constitution. See James Bradley Thayer, “The Origin and Scope of the American Doctrine of Constitutional Review,” 7 Harvard Law Review 129, 144 (1893) (arguing that federal courts generally did not and should not hold laws unconstitutional “unless those who have the right to make laws have not merely made a mistake, but have made a very clear one,—so clear that it is not open to rational question”); see also Robin West, Progressive Constitutionalism 295 (1994) (asserting that “progressives have good reason to ﬁnd [Thayer’s approach] attractive”); Mark Tushnet, “Policy Distortion and Democratic Deliberation: Comparative Illumination of the Countermajoritarian Difﬁculty,” 94 Michigan Law Review 245, 300–01 (1995) (suggesting that Thayer’s proposal to “giv[e] judicial review a minimal scope . . . deserves renewed attention”). See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 35–44 (1962). See Matthew D. Adler, “Judicial Restraint in the Administrative State: Beyond the Countermajoritarian Difﬁculty,” 145 University of Pennsylvania Law Review 759 (1997); Seth F. Kreimer, “Exploring the Dark Matter of Judicial Review: A Constitutional Census of the 1990s,” 5 William and Mary Bill of Rights Quarterly 427 (1997). Richard H. Fallon, Daniel J. Meltzer, and David L. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 77 (4th ed. 1996). Compare Bickel, Least Dangerous Branch 239 (arguing that “the Court should declare as law only such principles as” it can reasonably expect “will—in time, but in a rather immediate foreseeable future—gain assent. . . . The Court is a leader of opinion, not a mere register of it, but it must lead opinion, not merely impose its own”). See Rawls, Political Liberalism 133–172. See id. at 58; Ronald Dworkin, “Objectivity and Truth: You’d Better Believe It,” 25 Philosophy and Public Affairs 87 (1996). For discussions of judgment, see Ronald Beiner, Political Judgment 72–82

Notes to Pages 10–15

143

(1983); Isaiah Berlin, “Political Judgment,” in Isaiah Berlin, The Sense of Reality (Henry Hardy, ed., 1996). 49. See Bickel, Least Dangerous Branch 24; Dworkin, Freedom’s Law 34–35. 50. See Jeremy Waldron, “Legislation, Authority and Voting,” 84 Georgetown Law Journal 2185 (1996).

1. Originalism 1. See, for example, Raoul Berger, Federalism: The Framers’ Design 15–17 (1987); Robert H. Bork, The Tempting of America: The Seduction of Law by Politics 143–146 (1990); Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 38– 47 (1997); Antonin Scalia, “Originalism: The Lesser Evil,” University of Cincinnati Law Review 849, 862 (1989); Clarence Thomas, “Judging,” 45 University of Kansas Law Review 1, 6–7 (1996). For a historiography of originalism, see Barry Friedman and Scott B. Smith, “The Sedimentary Constitution,” 147 University of Pennsylvania Law Review 1, 11–33 (1999). 2. See, for example, Paul Brest, “The Misconceived Quest for the Original Understanding,” 60 Boston University Law Review 204 (1980). 3. See Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson (1995). 4. James Roger Sharp, American Politics in the Early Republic 17–30 (1993). 5. Joan Hoff, Gender and Justice: A Legal History of U.S. Women 151–191 (1991). 6. See Lawrence Lessig, “Understanding Changed Readings: Fidelity and Theory,” 47 Stanford University Law Review 395, 410 (1995); Lawrence Lessig, “Fidelity in Translation,” 71 Texas Law Review 1165, 1211 (1993). 7. See the discussion in the Introduction. 8. See Lessig, “Understanding Changed Readings”; Lessig, “Fidelity in Translation.” 9. See John O. McGinnis, “The Inevitable Inﬁdelities of Constitutional Translation: The Case of the New Deal,” 41 William and Mary Law Review 177 (1999). 10. Eric J. Segall, “A Century Lost: The End of the Originalism Debate,” 15 Constitutional Commentary 411, 432–433 (1998); Lawrence B. Solum, “Originalism as Transformative Politics,” 63 Tulane Law Review 1599, 1612–13 (1989). 11. See Bork, Tempting of America 143–155. 12. See, for example, Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 69–282 (1977); Bork, Tempting of America 19–128. 13. See Michael Perry, “Interpretivism, Freedom of Expression, and Equal Protection,” 42 Ohio State Law Journal 261, 287 (1981). 14. See, for example, 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). 15. See United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (1989). 16. See, for example, Thomas Grey, “Do We Have an Unwritten Constitution?,” 27 Stanford Law Review 703, 712 (1975); Henry Paul Monaghan, “Stare Decisis and Constitutional Adjudication,” 88 Columbia Law Review 723, 728 (1988). 17. See the discussion in note 7 to the Introduction.

144 18. 19. 20. 21. 22.

23. 24.

25. 26. 27. 28. 29. 30.

31.

32. 33. 34. 35. 36.

Notes to Pages 15–17 See Monaghan, “Stare Decisis,” 728. See, for example, Reynolds v. Sims, 377 U.S. 533 (1964). See Brown v. Board of Educ., 347 U.S. 483 (1954). See, for example, United States v. Virginia, 518 U.S. 515 (1996). See Grey, “Unwritten Constitution,” 711–712. The view that the framers and ratiﬁers did not intend incorporation, which once was orthodox, rests largely on the facts that (1) there was little if any discussion of incorporation during the ratiﬁcation debates, and (2) courts and lawyers in the years immediately following ratiﬁcation appeared not to understand the Fourteenth Amendment as having incorporated the Bill of Rights. For a recent, forceful marshalling of arguments in favor of partial or “reﬁned” incorporation, see Akhil Amar, The Bill of Rights 163–230 (1998). See Laurence H. Tribe, American Constitutional Law 772–773 (2d ed. 1986). Although the terms slave and slavery are not used explicitly, Article I forbade Congress to prohibit the “Importation of such Persons” before 1808, U.S. Const. art. I, §9, cl. 1, and Article IV contained a so-called fugitive slave clause, U.S. Const., art. IV, §2, cl. 3. These provisions represented the outcome of hard bargaining at the Constitutional Convention. See Max Farrand, The Framing of the Constitution of the United States 147–152 (1913). See U.S. Const., amend. XIV: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” 347 U.S. 483 (1954). See Bolling v. Sharpe, 347 U.S. 497, 500 (1954). See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). See, for example, Berger, Government by Judiciary 407–413; Bork, Tempting of America 155–160. See, for example, Payne v. Tennessee, 501 U.S. 808, 835 (1991) (Scalia, J., concurring); South Carolina v. Gathers, 490 U.S. 805, 824 (1994) (Scalia, J., dissenting); Bork, Tempting of America 155–158; Scalia, Matter of Interpretation 138– 140. See, for example, American Trucking Ass’n v. Smith, 496 U.S. 167, 204–205 (1990) (Scalia, J., concurring in the judgment); West Lynn Creamery v. Healy, 512 U.S. 186, 209–210 (1994) (Scalia, J., concurring); Bork, Tempting of America 155–158; Scalia, Matter of Interpretation 138–40. See, for example, Scalia, Matter of Interpretation 140 (“stare decisis is not a part of my originalist philosophy; it is a pragmatic exception to it”). Bork, Tempting of America 173–174; Henry P. Monaghan, “Our Perfect Constitution,” 56 New York University Law Review 353, 383–384 (1981). See Bork, Tempting of America 173–174; Monaghan, “Perfect Constitution,” 383–384. See, for example, Bork, Tempting of America 1–5; Scalia, Matter of Interpretation 40–41. See Bork, Tempting of America 143–144; see also Scalia, Matter of Interpretation 40 (asserting that “the whole purpose” of the Constitution “is to prevent change”).

Notes to Pages 17–18

145

37. See Bork, Tempting of America 5 (for a judge to be “bound by law” means “to be bound by the only thing that can be called law, the principles of the text . . . as generally understood at enactment”). 38. See, for example, Ronald Dworkin, Law’s Empire 398 (1986) (endorsing the view that “the American Constitution consists in the best available interpretation of American constitutional text and practice as a whole”); David A. Strauss, “Common Law Constitutional Interpretation,” 63 University of Chicago Law Review 877, 884 (1996) (asserting that the Constitution has “changed a great deal over time” through “non-textual amendments,” at least some of which were effected directly by Supreme Court decisions). 39. See Gary Lawson, “The Constitutional Case against Precedent,” 17 Harvard Journal of Law and Public Policy 23, 29–30 (1994). 40. See Earl M. Maltz, Rethinking Constitutional Law (1994); Robert H. Bork, “Neutral Principles and Some First Amendment Problems,” 47 Indiana Law Journal 1, 4 (1971) (asserting that “[i]n a constitutional democracy, the moral content of the law must be given by the morality of the framer or legislator, never by the morality of the judge”). 41. See Friedman and Smith, “Sedimentary Constitution,” 49 (noting positivist pretensions of originalist theories); Strauss, “Common Law Constitutional Interpretation,” 886 (same). The classic “positivist” text attempting to associate the concept of law with the commands of a sovereign lawgiver is John Austin, “The Province of Jurisprudence Determined,” in John Austin, The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence 1 (H. L. A. Hart, ed., 1954). See generally Anthony Sebok, “Misunderstanding Positivism,” 93 Michigan Law Review 2054, 2064–65 (1995) (identifying the “command theory of law” as a constitutive principle of “classical” legal positivism). 42. See Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 339–365 (1996); H. Jefferson Powell, “The Original Understanding of Original Intent,” 98 Harvard Law Review 885 (1985). 43. See Powell, “Original Understanding.” 44. See, for example, Ronald Dworkin, Freedom’s Law 2, 7–13, 50–54 (1996). 45. See, for example, H. L. A. Hart, The Concept of Law 18–76 (1961). 46. H. L. A. Hart suggested that the relevant social practices could be captured in a “rule” or rules “of recognition.” See Hart, Concept of Law 97–120, 245–247. This formulation was probably misleading. See Frederick Schauer, “Amending the Presuppositions of a Constitution,” in Responding to Imperfection: The Theory and Practice of Constitutional Amendment 145, 150 (Sanford Levinson, ed., 1995) (“There is no reason to suppose that the ultimate source of law needs to be anything that looks at all like a rule . . . or even a collection of rules, and it may be less distracting to think of the ultimate source of recognition . . . as a practice.”). But Hart’s deep point does not depend on whether relevant social attitudes and practices can be described in rule-like form. Even if the sovereign’s commands are the law, they are not the law because the sovereign has commanded that the sovereign’s commands should be law, but because relevant parts of the population accept the sovereign’s commands as authoritative.

146

Notes to Pages 19–21

47. See Schauer, “Amending the Presuppositions,” 50–57. 48. See Monaghan, “Stare Decisis,” 771. 49. See, for example, Berger, Government by Judiciary 69–282; Bork, Tempting of America 19–128. 50. See, for example, Bork, Tempting of America 19–128; Monaghan, “Stare Decisis,” 727–739. 51. See Dworkin, Freedom’s Law 3 (asserting that “[l]awyers and judges, in their day-to-day work, instinctively treat the Constitution as expressing abstract moral requirements that can only be applied to concrete cases through fresh moral judgments”); Scalia, Matter of Interpretation 38–49 (acknowledging that in the dominant approach to constitutional interpretation, judges take into account considerations other than the original understanding); Monaghan, “Stare Decisis,” 771–772. 52. See Charles L. Black, Jr., The People and the Court 209 (1960) (arguing that the continued acceptance of judicial review as practiced by the courts could not have occurred in the face of perceived illegitimacy). 53. Compare Hart, Concept of Law 141–142 (distinguishing between the ﬁnality and the correctness of decisions by an ultimate tribunal). 54. See Bork, Tempting of America 1–5, 143–146, 154–155; Scalia, “Originalism: The Lesser Evil,” 854, 862–863. 55. See Bork, Tempting of America 1–5; Scalia, “Originalism: The Lesser Evil,” 863. 56. See United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J., dissenting) (criticizing the Supreme Court majority for “inscribing” current preferences into the Constitution and arguing that the Constitution, as originally understood, embodied “[t]he virtue of a democratic system” that “enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly”); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 1001 (1992) (Scalia, J., dissenting) (arguing that value judgments not made by the Constitution “should be voted on, not dictated” by courts); Bork, Tempting of America 139–141, 264, 351–352. 57. See Bork, Tempting of America 139–141. 58. See id. at 353–355. 59. Id. at 353. 60. Id. 61. See Scalia, Matter of Interpretation 41–47; Scalia, “Originalism: The Lesser Evil,” 855–856. 62. See Oliver Wendell Holmes, Jr., The Common Law 1–38 (1990 (1881)). 63. See Richard H. Fallon, Jr., “ ‘The Rule of Law’ as a Concept in Constitutional Discourse,” 97 Columbia Law Review 1, 51 (1997). 64. See Matthew D. Adler, “Judicial Restraint in the Administrative State: Beyond the Countermajoritarian Difﬁculty,” 145 University of Pennsylvania Law Review 759 (1997); Seth F. Kreimer, “Exploring the Dark Matter of Judicial Review: A Constitutional Census of the 1990s,” 5 William and Mary Bill of Rights Quarterly 427 (1997).

Notes to Pages 21–24

147

65. Louis Jaffe, Judicial Control of Administrative Action 320 (1965). 66. In Alabama, for example, “only 25.1% of the State’s total population resided in districts represented by a majority of members of the Senate, and only 25.7% lived in counties which could elect a majority of the members of the House of Representatives.” Reynolds v. Sims, 377 U.S. 533, 545–546 (1964). See also Gray v. Sanders, 373 U.S. 368, 379 (1963); Baker v. Carr, 369 U.S. 186 (1962). 67. On the connection between First Amendment rights and political democracy, see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 105–116 (1980). 68. See Kreimer, “Exploring the Dark Matter of Judicial Review,” 455–456. 69. See, for example, James Bradley Thayer, “The Origin and Scope of the American Doctrine of Constitutional Review,” 7 Harvard Law Review 129 (1893); Mark Tushnet, “Policy Distortion and Democratic Deliberation: Comparative Illumination of the Countermajoritarian Difﬁculty,” 94 Michigan Law Review 245 (1995). 70. See Barry Friedman, “Dialogue and Judicial Review,” 91 Michigan Law Review 577 (1993). 71. See Black, People and the Court 52–53. 72. See Monaghan, “Stare Decisis,” 730–735. 73. As discussed in the Introduction, this is perhaps the best supported view. 74. Justice Scalia has suggested that he does in fact take this approach with respect to so-called dormant commerce clause doctrine. See, for example, West Lynn Creamery v. Healy, 512 U.S. 186, 209–210 (1994) (Scalia, J., concurring). 75. See, for example, Michael C. Dorf, “Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning,” 85 Georgetown Law Journal 1765 (1997); Michael C. Dorf, Reply, “Recipe for Trouble: Some Thoughts on Translation and Normative Theory,” 85 Georgetown Law Journal 1857 (1997). 76. See Fallon, “Rule of Law,” 44–45, 48. 77. Professor Dworkin, whose account I generally follow on this point, has suggested that legal theories should be classiﬁed as “interpretive.” See Dworkin, Law’s Empire 45–113. According to Dworkin, legal theorists typically begin with a tentative or “pre-interpretive” understanding of the materials that a good legal theory ought to ﬁt, and then craft a theory that, in addition to satisfying a requirement of ﬁt, portrays the relevant body of law in the best moral light. See id. at 65–68. 78. Indeed, the response to a “purely normative” theory—for example, a theory that judges should always do whatever will have the greatest tendency to maximize utility, regardless of whether the constitutional provisions being interpreted can fairly be understood as reﬂecting this aim—might be that this is not a “constitutional theory” at all, but is rather a moral or political theory. 79. See Richard H. Fallon, Jr., “How to Choose a Constitutional Theory,” 87 California Law Review 535, 549 (1999). 80. See id. at 540–541.

148

Notes to Pages 24–29

81. See Richard Posner, “Against Constitutional Theory,” 73 New York University Law Review 1, 10 (1998) (“Constitutional theorists want to inﬂuence constitutional practice.”).

2. The Supreme Court as the Forum of Principle 1. 2. 3. 4. 5.

6. 7. 8. 9. 10. 11. 12.

13. 14. 15. 16.

17. 18. 19. 20. 21. 22. 23. 24.

25.

See Ronald Dworkin, A Matter of Principle 69–71 (1985). See Ronald Dworkin, Law’s Empire 50–53, 58–59, 65–67, 254–260 (1986). See id. at 45–86. Id. at 50–53. The aim is to achieve the “best moral” reading that is possible consistent with the requirement that interpretation must ﬁt what is being interpreted. See Ronald Dworkin, Freedom’s Law 2 (1996). Dworkin, Law’s Empire 190, 413. See Dworkin, Freedom’s Law 2–4; Dworkin, Law’s Empire 355–389, 397–399. See Ronald Dworkin, Taking Rights Seriously 82–88 (1977). See, for example, Dworkin, Freedom’s Law 2, 7–13, 50–54. See Ronald Dworkin, Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom 122 (1993). See id. at 74. See, for example, Dworkin, Freedom’s Law 50–54; Ronald Dworkin, “Comment,” in Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 115, 126 (1997). Dworkin, Taking Rights Seriously 134. See Dworkin, “Comment,” 121–122. See, for example, Dworkin, Freedom’s Law 50–54. See, for example, Dworkin, Freedom’s Law 50–54; Dworkin, Law’s Empire 225 (“According to law as integrity, propositions of law are true if they ﬁgure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s practice”). 381 U.S. 479 (1965). See Dworkin, Freedom’s Law 50–54. See, for example, Dworkin, Freedom’s Law 83; Dworkin, Law’s Empire 96. See, for example, Dworkin, Law’s Empire 239; Dworkin, Taking Rights Seriously 105–130. See Dworkin, Freedom’s Law 2, 7–12. Id. at 7. See Michael Dorf, “The Supreme Court, 1997 Term—Foreword: The Limits of Socratic Deliberation,” 112 Harvard Law Review 4 (1998). See Melville Nimmer, “The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy,” 56 California Law Review 935, 957 (1968); David A. Strauss, “The Ubiquity of Prophylactic Rules,” 55 University of Chicago Law Review 190, 198 (1988). 376 U.S. 254 (1964).

Notes to Pages 29–33 26. 27. 28. 29. 30. 31.

32. 33. 34. 35. 36. 37.

38.

39. 40. 41. 42. 43. 44. 45.

46. 47.

149

418 U.S. 323 (1974). See Sullivan, 376 U.S. at 269–271. Id. at 339–340, 45. Id. at 340. Id. at 340. Sullivan, 376 U.S. at 271–272; in Gertz’s alternative formulation, the aspiration was “to protect some falsehood in order to protect the speech that matters.” 418 U.S. at 341. See, for example, Nimmer, “Right to Speak from Times to Time,” 948–955; Strauss, “Ubiquity of Prophylactic Rules,” 200. Gertz, 418 U.S. at 327–328 (quoting Sullivan, 376 U.S. at 279–280). See Dworkin, Freedom’s Law 195–213. Id. at 200. See David A. Strauss, “Principle and Its Perils,” 64 University of Chicago Law Review 373, 381–383 (1997). See Dorf, “Foreword”; David L. Faigman, “‘Normative Constitutional FactFinding’”: Exploring the Empirical Component of Constitutional Interpretation,” 139 University of Pennsylvania Law Review 541, 547–549 (1991) (arguing that judicial assumptions about background and institutional facts play a pervasive role in constitutional law). See generally Lawrence Gene Sager, “Fair Measure: The Status of Underenforced Constitutional Norms,” 91 Harvard Law Review 1212, 1213–20 (1978) (discussing institutional considerations that sometimes lead courts to craft doctrines failing to enforce constitutional norms to their full conceptual limits); Lawrence Gene Sager, “Foreword: State Courts and the Strategic Space Between Norms and Rules of Constitutional Law,” 63 Texas Law Review 959, 961–973 (1985) (discussing strategic elements in constitutional rule making); David A. Strauss, “The Ubiquity of Prophylactic Rules,” 55 University of Chicago Law Review 190, 190 (1988) (discussing the need for courts to craft prophylactic rules to protect constitutional values). Sager, “Underenforced Constitutional Norms,” 1221. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 410 (1971) (Harlan, J., concurring). Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See id. at 814. See Gerald L. Neuman, “The Constitutional Requirement of ‘Some Evidence,’” 25 San Diego Law Review 631 (1988) (collecting cases). Sager, “Underenforced Constitutional Norms,” 1215. See, for example, FCC v. Beach Communications, Inc., 508 U.S. 307, 313–314 (1993) (“Where there are ‘plausible reasons’ for Congress’ action, ‘our inquiry is at an end’ ”) (quoting United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980)). Sager, “Underenforced Constitutional Norms,” 1215. Compare Williamson v. Lee Optical of Oklahoma, 348 U.S. 483 (1955) (up-

150

48. 49. 50.

51.

52. 53.

54. 55.

56. 57.

58.

Notes to Pages 33–38 holding Oklahoma law that advantaged optometrists at the expense of opticians by forbidding opticians to ﬁt or duplicate lenses without a prescription from an ophthalmologist or optometrist). See Paul Brest, “The Conscientious Legislator’s Guide to Constitutional Interpretation,” 27 Stanford Law Review 585, 589–595 (1975). See Sager, “Underenforced Constitutional Norms,” 1215–20. See Dworkin, Taking Rights Seriously 26 (noting that when principles “intersect,” the “one who must resolve the conﬂict has to take into account the relative weight of each”). See id. at 93 (distinguishing between “abstract” rights and the “concrete” judicially enforceable rights that emerge when the relative weight of a right in comparison with competing “political aims” is more precisely speciﬁed). See Dworkin, Law’s Empire 266. For studies of the implications of the Court’s plurality, see Cass R. Sunstein, Legal Reasoning and Political Conﬂict (1996); Frank H. Easterbrook, “Ways of Criticizing the Court,” 95 Harvard Law Review 802 (1982); Lewis A. Kornhauser and Lawrence G. Sager, “Unpacking the Court,” 96 Yale Law Journal 82 (1986); Lewis A. Kornhauser and Lawrence G. Sager, “The One and the Many: Adjudication in Collegial Courts,” 81 California Law Review 1 (1993). See Easterbrook, “Ways of Criticizing,” 815–817. See generally Maurice Kelman, “The Forked Path of Dissent,” 1985 Supreme Court Review 227, 248–274 (discussing institutional considerations that do and should affect Justices’ decisions about when to dissent or concur separately). See Ronald Dworkin, “Objectivity and Truth: You’d Better Believe It,” 25 Philosophy and Public Affairs 87 (1996). As has been widely recognized in recent inﬂuential writing, the phenomenon of reasonable disagreement is endemic to both politics and law. See, for example, Amy Gutmann and Dennis Thompson, Democracy and Disagreement 1 (1996); Frank I. Michelman, Brennan and Democracy (1999); John Rawls, Political Liberalism 54–58 (1993); Cass R. Sunstein, Legal Reasoning and Political Choice (1996); Jeremy Waldron, Law and Disagreement (1999). See, for example, First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 327 (1987); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976).

3. Constitutional Implementation 1. Compare Malcom M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern Administrative State: How the Courts Reformed America’s Prisons 337 (1998) (distinguishing “interpretation” from “policymaking” in which courts must engage). 2. See, for example, County of Sacramento v. Lewis, 118 S. Ct. 1708, 1717–18 (1998); Paul v. Davis, 424 U.S. 693 (1976). 3. On the Court’s crafting of due process doctrines that are relatively more hospi-

Notes to Pages 38–42

4. 5. 6. 7. 8. 9. 10. 11. 12.

13. 14. 15.

16.

17. 18. 19.

20.

151

table to challenges likely to have broad or systemic impact than to those that are more fact-bound, see Richard H. Fallon, Jr., “Some Confusions about Due Process, Judicial Review, and Constitutional Remedies,” 93 Columbia Law Review 309 (1993). See id. See David A. Strauss, “The Ubiquity of Prophylactic Rules,” 55 University of Chicago Law Review 190, 207–208 (1988). See Palmore v. Sidoti, 466 U.S. 429, 432–433 (1984). 5 U.S. (1 Cranch) 137, 177 (1803). See, for example, Boerne v. Flores, 521 U.S. 507 (1997). See, for example, Goldman v. Weinberger, 475 U.S. 503 (1986). See, for example, O’Lone v. Shabazz, 478 U.S. 342 (1987). See Miranda v. Arizona, 384 U.S. 436 (1966). See, for example, Joseph D. Grano, “Prophylactic Rules in Criminal Procedure: A Question of Article III Illegitimacy,” 80 Northwestern University Law Review 100 (1985). 376 U.S. 254 (1964). See Strauss, “Ubiquity of Prophylactic Rules,” 194–207. See Charles Fried, “Constitutional Doctrine,” 107 Harvard Law Review 1140, 1140 (1994); Charles Fried, “Types,” 14 Constitutional Commentary 55, 75 (1997); Edward Rubin and Malcom Feeley, “Creating Legal Doctrine,” 69 Southern California Law Review 1989, 1990 (1996); Frederick Schauer, “Opinions as Rules,” 62 University of Chicago Law Review 1455, 1470–71 (1995). See, for example, Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996) (1996) (asserting that the Court expects both lower courts and itself to adhere to the “rationale upon which the Court based the results of its earlier decisions”); compare McNollgast, “Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law,” 68 Southern California Law Review 1631, 1639 (1995) (“We interpret doctrine as being the set of rules and methods to be used to decide a particular class of cases”). See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995); City of Richmond v. J. A. Croson Co., 488 U.S. 469, 479 (1989). See United States v. Eichman, 496 U.S. 310, 315 (1990); Texas v. Johnson, 491 U.S. 397, 406 (1989). See Frederick Schauer, “Speech and ‘Speech’—Obscenity and ‘Obscenity’: An Exercise in the Interpretation of the Constitution,” 67 Georgetown Law Journal 899, 926 (1979). See generally Lawrence Gene Sager, “Fair Measure: The Status of Underenforced Constitutional Norms,” 91 Harvard Law Review 1212, 1213–20 (1978) (discussing institutional considerations that sometimes lead courts to craft doctrines failing to enforce constitutional norms to their full conceptual limits); Lawrence Gene Sager, “Foreword: State Courts and the Strategic Space Between Norms and Rules of Constitutional Law,” 63 Texas Law Review 959, 961–973 (1985) (discussing strategic elements in constitutional rule making);

152

21.

22. 23. 24.

25.

26.

27. 28.

Notes to Pages 42–46 Strauss, “Ubiquity of Prophylactic Rules,” 190 (discussing the need for courts to craft prophylactic rules to protect constitutional values). See Steven H. Shiffrin, The First Amendment, Democracy, and Romance 91 (1990) (arguing that a central purpose of the First Amendment is to protect dissent and dissenters). See also R.A.V. v. City of St. Paul, 505 U.S. 377, 396 (1992); Texas v. Johnson, 491 U.S. 397, 413 (1989). Camps Newfound/Owatonna, Inc. v. Harrison, 520 U.S. 564, 577 (1997). See Schauer, “Opinions as Rules,” 1455. For criticism of the Supreme Court’s tendency to proliferate multiple-part tests, see Morton J. Horwitz, “The Supreme Court, 1992 Term—Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism,” 107 Harvard Law Review 30, 98 (1993); Robert Nagel, “The Formulaic Constitution,” 84 Michigan Law Review 165, 182 (1985). See David Strauss, “Common Law Constitutional Interpretation,” 63 University of Chicago Law Review 877, 879 (1996); John Paul Stevens, “The Life-Span of a Judge-Made Rule,” 58 New York University Law Review 1, 4 (1983). My distinction between ordinary and extraordinary cases bears some similarity to Ronald Dworkin’s famous distinction between routine cases, which can be decided pursuant to established legal rules, and “hard cases,” which require a recourse to the principles that underlie established understandings and, in some cases, a reformulation of recognized rules in light of underlying principles. See Ronald Dworkin, Taking Rights Seriously 125 (1977). I suggest in Chapter 6, however, that decisions about when to accept and when to reject existing doctrinal equilibria appropriately have practical, prudential, and quasi-tactical elements that Dworkin’s formulation, which characterizes adjudication in both hard and easy cases as a relentless effort to render judgments reﬂecting underlying legal principles, does not fully capture. See Henry Paul Monaghan, “Stare Decisis and Constitutional Adjudication,” 88 Columbia Law Review 723, 746 (1988). One measure of this phenomenon is the frequency, and sometimes the casualness, with which the Supreme Court overrules precedents. See, for example, id. at 742–743.

4. Extraordinary Adjudication 1. See Richard H. Fallon, Jr., “A Constructivist Coherence Theory of Constitutional Interpretation,” 100 Harvard Law Review 1189, 1194–1209 (1987). For a slightly different typology, see Philip Bobbitt, Constitutional Fate 1–119 (1982). 2. On the signiﬁcance of postoriginalist history, see Barry Friedman and Scott Smith, “The Sedimentary Constitution,” 147 University of Pennsylvania Law Review 1 (1998). 3. See Fallon, “Constructivist Coherence Theory,” 1239–40. 4. See Katz v. United States, 389 U.S. 347, 350–353 (1967). 5. See, for example, Washington v. Glucksberg, 521 U.S. 702, 719–720 (1997).

Notes to Pages 46–50

153

6. 347 U.S. 483 (1954). 7. See note 7 to the Introduction and accompanying text. 8. See Michael J. Klarman, “Antiﬁdelity,” 70 Southern California Law Review 381, 407–409 (1997). 9. See id.; see also Michael J. Klarman, “Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell,” 81 Virginia Law Review 1881 (1995). 10. See Fallon, “Constructivist Coherence Theory.” 11. See, for example, Thomas Grey, “Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought,” 30 Stanford Law Review 843, 844 (1978); David A. Strauss, “Common Law Constitutional Interpretation,” 63 University of Chicago Law Review 877, 878–881 (1996). 12. See Fallon, “Constructivist Coherence Theory,” 1246–47. 13. See Ronald Dworkin, Freedom’s Law 2–4 (1996); Ronald Dworkin, Law’s Empire 52–53, 254–258, 355–389, 397–399 (1986). 14. See, for example, Dworkin, Freedom’s Law 2, 7–13. 15. See id. at 2, 7–13. 16. See Robert H. Bork, The Tempting of America: The Seduction of Law by Politics 251– 259 (1990); John Hart Ely, Democracy and Distrust 41, 87–88, 102–104, 181–183 (1980); Antonin Scalia, “Originalism: The Lesser Evil,” 57 University of Cincinnati Law Review 849, 863 (1989). 17. See Dworkin, Law’s Empire 62. 18. See Richard H. Fallon, Jr., “Of Speakable Ethics and Constitutional Law: A Review Essay,” 56 University of Chicago Law Review 1523, 1538–44 (1989); Paul W. Kahn, “Community in Contemporary Constitutional Theory,” 99 Yale Law Journal 1, 10 (1989) (attributing this view to Alexander Bickel); Harry H. Wellington, “Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication,” 83 Yale L.J. 221, 244 (1973). 19. See John Rawls, Political Liberalism 43–45 (1993). 20. See generally Maurice Kelman, “The Forked Path of Dissent,” 1985 Supreme Court Review 227, 248–274 (discussing institutional considerations that do and should affect Justices’ decisions about when to dissent or to concur separately). 21. See, for example, Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 118 (1991) (First Amendment rights); Roe v. Wade, 410 U.S. 113, 153–154 (1973) (fundamental liberty rights). 22. See Maryland v. Wilson, 519 U.S. 408 (1997). 23. See Mathews v. Eldridge, 424 U.S. 319, 334–335 (1976). 24. See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976). 25. See Stephen E. Gottlieb, “Compelling Governmental Interests: An Essential but Unanalyzed Term in Constitutional Adjudication,” 68 Boston University Law Review 917, 937 (1988). 26. See Davis v. Bandemer, 478 U.S. 109, 138–139 (1986). 27. See Ely, Democracy and Distrust 121. 28. See David P. Currie, “Positive and Negative Constitutional Rights,” 53 Univer-

154

29.

30. 31. 32.

33.

34.

35.

36. 37.

38.

39. 40. 41. 42.

43. 44. 45.

Notes to Pages 50–54 sity of Chicago Law Review 864 (1986); Susan Bandes, “The Negative Constitution: A Critique,” 88 Michigan Law Review 2271 (1990). See, for example, Frank I. Michelman, “The Supreme Court, 1968 Term— Foreword: On Protecting the Poor under the Fourteenth Amendment,” 83 Harvard Law Review 7 (1969); Charles L. Black, Jr., “Further Reﬂections on the Constitutional Justice of Livelihood,” 86 Columbia Law Review 1103 (1986). See, for example, NAACP v. Alabama, 347 U.S. 449 (1958). See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973). See generally Molly S. McUsic, “The Law’s Role in the Distribution of Education: The Promises and Pitfalls of School Finance Litigation,” in Jay P. Herbert, ed., Law and School Reform: Six Strategies for Promoting Educational Equity 88 (1999) (discussing litigation of rights to education under state law). For an overview, see Malcom M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern Administrative State: How the Courts Reformed America’s Prisons (1998). See Ashwander v. TVA, 297 U.S. 288, 346–348 (1936) (Brandeis, J., concurring). For a critical assessment of the traditional wisdom, see Lisa Kloppenberg, “Measured Constitutional Steps,” 71 Indiana Law Journal 297 (1996). See generally Owen Fiss, “The Supreme Court, 1978 Term—Foreword: The Forms of Justice,” 93 Harvard Law Review 1 (1979) (celebrating the signiﬁcance of this aspect of the Court’s role). See the discussion in the Introduction. See Matthew D. Adler, “Judicial Restraint in the Administrative State: Beyond the Countermajoritarian Difﬁculty,” 145 University of Pennsylvania Law Review 759 (1997); Seth F. Kreimer, “Exploring the Dark Matter of Judicial Review: A Constitutional Census of the 1990s,” 5 William and Mary Bill of Rights Quarterly 427 (1997). Alexander M. Bickel, The Least Dangerous Branch 239 (1962); see also the discussion of “digestibility” in Harry H. Wellington, Interpreting the Constitution (1990). For a discussion of “balancing” in Supreme Court decision making, see Chapter 5. U.S. Const., amend. I. See Lemon v. Kurtzman, 403 U.S. 602, 612–613 (1971). See Lee v. Weisman, 505 U.S. 577, 640–642 (1992) (Scalia, J., dissenting); compare Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 662– 663 (1989) (Kennedy, J., concurring in part and dissenting in part) (a noncoercive practice violates the Establishment Clause only if “it beneﬁts religion in a way more direct and more substantial than practices that are accepted in our national heritage”). See note 89 to Chapter 5 and accompanying text. See Engle v. Vitale, 370 U.S. 421 (1962); Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963). Compare Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 601–

Notes to Pages 54–58

46.

47. 48.

49. 50.

51. 52. 53. 54. 55.

56. 57. 58. 59. 60. 61. 62. 63. 64.

155

602, 620–621 (1989) (ﬁnding that the placement of a creche in a courthouse violated the Establishment Clause but a display of a menorah in a public park did not) with Lynch v. Donnelly, Kennedy, 465 U.S. 668, 687 (1984) (holding that the inclusion of a creche in an outdoor holiday display did not violate the Establishment Clause). See, for example, Lynch v. Donnelly, 465 U.S. 668, 716–717 (1984) (Brennan, J., dissenting); Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 602–03 (1989) (Blackmun, J.); Marsh v. Chambers, 463 U.S. 783, 418 (198) (Brennan, J., dissenting); Abington v. Schempp, 374 U.S. 203, 303 (1960) (Brennan, J., concurring). See Bickel, Least Dangerous Branch. Under art. III, §2 of the U.S. Constitution, the Court’s appellate jurisdiction is expressly made subject to “such exceptions . . . as the Congress shall make.” In the past, Congress has occasionally curbed the Court’s jurisdiction to avert its deciding cases in ways that Congress would dislike. See Lauf v. E. G. Shinner & Co., 303 U.S. 323 (1938); Ex parte McCardle, 74 U.S. 506 (1869). Nonetheless, the scope of Congress’s power to restrict the Supreme Court’s jurisdiction is endlessly controverted. For a survey of the contending positions, see Richard H. Fallon, Daniel J. Meltzer, and David L. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 348–387 (4th ed. 1996). 347 U.S. 483 (1954). See Michael McConnell, “Originalism and the Desegregation Decisions,” 81 Virginia Law Review 947, 952 (1995); Mark V. Tushnet, “Reﬂections on the Role of Purpose in the Jurisprudence of the Religion Clauses,” 27 William and Mary Law Review 997, 999 n.4 (1986); accord, Bork, Tempting of America 77. 410 U.S. 113 (1973). 505 U.S. 833 (1992). See Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997). 521 U.S. 507 (1997). See Richard Kluger, Simple Justice 586–613 (1975); Bernard Schwartz, Super Chief: Earl Warren and His Supreme Court—A Judicial Biography 77, 87–89 (1983); Mark Tushnet, “What Really Happened in Brown v. Board of Education,” 91 Columbia Law Review 1867 (1991). 163 U.S. 537 (1896). See generally C. Vann Woodward, The Strange Career of Jim Crow (1957). See “Order,” Brown v. Board of Educ., 345 U.S. 972 (1953). See note 7 to the Introduction. Alexander M. Bickel, “The Original Understanding and the Segregation Decision,” 69 Harvard Law Review 1, 61 (1955). 347 U.S. at 489. See id. at 492–493. Id. at 492. Id. at 494.

156 65. 66. 67. 68. 69. 70.

71. 72.

73. 74.

75. 76. 77. 78. 79. 80. 81. 82. 83.

84. 85. 86. 87. 88. 89.

Notes to Pages 58–61 Id. at 495. Id. Brown v. Board of Educ. (Brown II), 349 U.S. 294 (1955). Id. at 301. See Michael J. Klarman, “Brown, Racial Change, and the Civil Rights Movement,” 80 Virginia Law Review 7, 97–119 (1994). See, for example, Learned Hand, Bill of Rights: The Oliver Wendell Holmes Lecture 54–55 (1958); Herbert Wechsler, “Toward Neutral Principles of Constitutional Law,” 73 Harvard Law Review 1, 34 (1959). On the importance of paradigm cases to the construction of legal theories, see Dworkin, Law’s Empire 72–73, 88–92, 354. For recent expressions of doubt about whether Brown had signiﬁcant, direct impact in changing views about appropriate race relations or triggering later civil rights legislation, see Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991); Michael J. Klarman, “Brown, Racial Change, and the Civil Rights Movement.” Quoted in Paul D. Gewirtz, “Remedies and Resistance,” 92 Yale Law Journal 585, 613 (1983). See Richard H. Fallon, Jr. and Daniel J. Meltzer, “New Law, Non-Retroactivity, and Constitutional Remedies,” 104 Harvard Law Review 1731, 1777–91 (1991). See, for example, Alden v. Maine, 119 S. Ct. 2240 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). See, for example, Harlow v. Fitzgerald, 457 U.S. 800 (1982). See generally Douglas Laycock, Modern American Remedies 229–344 (2d ed. 1994). 381 U.S. 618 (1965). 367 U.S. 643 (1961). See Johnson v. New Jersey, 384 U.S. 719, 732 (1966). On the Warren Court’s nonretroactivity jurisprudence, see Fallon and Meltzer, “New Law, Non-Retroactivity, and Constitutional Remedies,” 1738–44. See John Jeffries, “The Right–Remedy Gap in Constitutional Law,” 109 Yale Law Journal 87 (1999). On the practical aspects of the Court’s role in framing remedies in light of considerations including resistance and reasonable disagreement, see Barry Friedman, “When Rights Encounter Reality: Enforcing Federal Remedies,” 65 Southern California Law Review 735 (1992); Gewirtz, “Remedies and Resistance.” See 349 U.S. at 300–301. See Schwartz, Super Chief, 116–117. See Gewirtz, “Remedies and Resistance.” 410 U.S. 113 (1973). Id. at 120. Id. at 113.

Notes to Pages 61–63

157

90. See Cass R. Sunstein, “Neutrality in Constitutional Law (with Special Reference to Pornography, Abortion, and Surrogacy),” 92 Columbia Law Review 1, 38 (1992). 91. Studies vary widely in their estimates of the number of illegal abortions performed annually before Roe, but all agree that the number was substantial. See, for example, David Granﬁeld, The Abortion Decision 86–88 (1969) (noting that Planned Parenthood estimated the number at “anywhere from 200,000 to 1,200,000 each year”); Rosenberg, Hollow Hope 353–355 (noting that, despite a range of estimates, by the mid-1960s “the range seemed to be settling around 1 million”). 92. See, for example, Jesse H. Choper, “Consequences of Supreme Court Decisions Upholding Individual Constitutional Rights,” 83 Michigan Law Review 1, 185 (1984) (stating that “the risk of death from an illegal abortion is twelve times greater than from a legal one”). 93. See, for example, Frontiero v. Richardson, 411 U.S. 677 (1973). 94. Ely, Democracy and Distrust 18. 95. 198 U.S. 45 (1905). 96. See generally Edwin S. Corwin, Liberty against Government (1948). 97. Bolling v. Sharpe, 347 U.S. 497 (1954). 98. See id. at 498–499. 99. Eisenstadt v. Baird, 405 U.S. 438, 453–454 (1972). 100. See David J. Garrow, Liberty and Equality: The Right to Privacy and the Making of Roe v. Wade 529–531 (1994). 101. 410 U.S. at 164–165. 102. Id. at 163–164. 103. Id. at 163. 104. Id. 105. See id. at 129–152. 106. See id. at 152–153. 107. Id. at 159. 108. Id. at 163. 109. See John Hart Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale Law Journal 920, 924 (1973). 110. See Erin Daly, “Reconsidering Abortion Law: Liberty, Equality, and the New Rhetoric of Planned Parenthood v. Casey,” 45 American University Law Review 77, 83–91 (1995). 111. In a summary near the end of his opinion, Blackmun states: “The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justiﬁcations for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.” 410 U.S. at 165–166. 112. See, for example, Donald H. Regan, “Rewriting Roe v. Wade,” 77 Michigan Law Review 1569 (1979).

158

Notes to Pages 63–65

113. See, for example, Catharine A. MacKinnon, Feminism Unmodiﬁed 93–102 (1987); Reva Siegal, “Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection,” 44 Stanford Law Review 261 (1992); Sunstein, “Neutrality in Constitutional Law.” 114. See Sunstein, “Neutrality in Constitutional Law,” 32–44. 115. See, for example, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 999–1000 (1992) (Scalia, J., joined by Rehnquist, C.J., and Kennedy and Thomas, J.J., concurring in part in dissenting in part); Bork, Tempting of America 111–116; Ely, “Wages of Crying Wolf,” 926–937; John T. Noonan, Jr., “The Root and Branch of Roe v. Wade,” 63 Nebraska Law Review 668 (1984). 116. See Bob Woodward and Scott Armstrong, The Brethren, intro. and chap. 1 (1979). 117. Vincent Blasi, “The Rootless Activism of the Burger Court,” in Vincent Blasi, ed., The Burger Court: The Counter-Revolution That Wasn’t 198 (1983). 118. See 1980 Republican Platform, reprinted in 38 Congressional Quarterly Weekly Report 2030, 2046 (1980) (candidate Ronald Reagan promised to appoint “women and men . . . who respect traditional family values and the sanctity of human life”); compare “Clinton Says He Won’t Appoint Anti-Abortion Justices,” Los Angeles Times, July 1, 1992, A14. 119. See “1992 Republican Convention Supplement: Platforms on Abortion,” 50 Congressional Quarterly Weekly Report 18 (1992) (summarizing party platforms on abortion from 1972 to 1992). 120. See Susan Estrich and Kathleen Sullivan, “Abortion Politics: Writing for an Audience of One,” 138 University of Pennsylvania Law Review 119 (1989). 121. 505 U.S. 833 (1992). 122. See id. at 944 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part). 123. See id. at 952–953 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part). 124. See id. at 916 (Stevens, J., concurring in part and dissenting in part); id. at 941 (Blackmun, J., concurring in part and dissenting in part). 125. Id. at 845–846 (plurality opinion). 126. See id. at 852–853. 127. See id. at 864–869. For an illuminating defense of the joint opinion’s emphasis on this consideration, see Deborah Hellman, “The Importance of Appearing Principled,” 37 Arizona Law Review 1107 (1995). 128. 505 U.S. at 867. 129. Id. at 869. 130. See Michael Gerhardt, “The Pressure of Precedent: A Critique of the Conservative Approaches to Stare Decisis in Abortion Cases,” 10 Constitutional Commentary 67 (1993). 131. 505 U.S. at 876. 132. In Stenberg v. Carhart, 120 S. Ct. 2597 (2000), the Court applied Casey’s “un-

Notes to Pages 66–68

133. 134. 135.

136.

137. 138. 139.

140. 141. 142. 143. 144. 145. 146.

147.

148. 149. 150.

159

due burden” test and, by 5-4, invalidated challenged statutory prohibitions against “partial birth abortion.” See generally Guido Calabresi and Philip Bobbitt, Tragic Choices (1978). See Ronald Dworkin, “Objectivity and Truth: You’d Better Believe It,” 25 Philosophy and Public Affairs 87 (1996). Compare Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990) (involving standards for determining whether a comatose patient would have wanted heroic treatment to be discontinued). See, for example, Ronald Dworkin, Life’s Dominion 179–241 (1993); Lawrence Solum, Ronald Dworkin, and John Finnis, “The Fifth Annual Fritz B. Burns Lecture: Euthanasia, Morality, and the Law,” 30 Loyola University Law Review 1465 (1997). 521 U.S. 702 (1997). 521 U.S. 793 (1997). See, for example, Mary Ann Glendon, Abortion and Divorce in American Law 40– 62 (1987) (arguing that the Supreme Court “could have authorized the states, within broad limits, to work out legislation which would have treated the abortion question in all its complexity and with the gravity it deserves”); Cass R. Sunstein, “The Right to Die,” 106 Yale Law Journal 1123, 1149–50 (1997). See Glucksberg, 521 U.S. at 720–723. See Vacco, 521 U.S. at 807–809. The ﬁve were Justices O’Connor, Stevens, Souter, Ginsburg, and Breyer. See Glucksberg, 521 U.S. at 720–723. Id. at 719–720. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 847 (1992). See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227–228 (1995); see also id. at 239 (Scalia, J., concurring in part and concurring in the judgment); id. at 240–241 (Thomas, J., concurring in part and concurring in the judgment). See Glucksberg, 521 U.S. at 720 (“We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional [common law] right to refuse unwanted lifesaving medical treatment”). Id. at 723, quoting Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 279 (1990). See Glucksberg, 521 U.S. at 735 n.24. Id. at 736. (O’Connor, J., joined by Ginsburg and Breyer, J. J., concurring). Without speciﬁcally adverting to the case of a terminally ill person with acute pain that could be relieved only by terminal sedation, Justice Stevens suggested that he thought individual liberty interests would outweigh state interests in prohibiting assisted suicide in at least some cases. See id. at 741–742, 745. Justice Souter also reserved the question whether the individual interest might prevail over the states’ interest “in some circumstances.” Id. at 782. Justice O’Connor noted that the Court had “no need to reach” the question that troubled her, since the parties agreed that under the challenged New York and

160

151.

152.

153.

154. 155. 156. 157.

158. 159. 160.

161. 162. 163. 164.

165. 166. 167. 168.

Notes to Pages 68–71 Washington statutes, “a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication . . . to alleviate that suffering, even to the point of causing unconsciousness and hastening death.” Id. at 736. Justice O’Connor welcomed more public and political debate in an opinion joined by Justices Ginsburg and Breyer. See id. at 737 (O’Connor, J., concurring). Also concurring, Justice Souter emphasized that the Court had “no warrant to substitute one reasonable resolution of contending positions for another, but [rather has] authority to supplant the balance already struck . . . only when it falls outside the realm of the reasonable.” Id. at 764 (Souter, J., concurring). Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thomson, “Assisted Suicide: The Philosophers’ Brief,” New York Review of Books 41 (March 27, 1997). See, for example, Alden v. Maine, 119 S. Ct. 2240 (1999); Printz v. United States, 521 U.S. 898 (1997); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); and United States v. Lopez, 514 U.S. 549 (1995). 521 U.S. 507 (1997). U.S. Const., amend. XIV §5. See Katzenbach v. Morgan, 384 U.S. 641, 651 n.10 (1966). See, for example, Oregon v. Mitchell, 400 U.S. 112 (1970), in which ﬁve Justices wrote opinions, none commanding a majority, and a majority of the Court did not endorse Morgan’s “ratchet” theory. 494 U.S. 872 (1990). See Boerne, 521 U.S. at 519, citing Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). See, for example, Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136 (1987); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). Even some ardent critics of the Smith decision acknowledge that the Supreme Court, prior to Smith, had not applied the “compelling interest” test with characteristic stringency. See, for example, Michael McConnell, “Free Exercise Revisionism and the Smith Decision,” 57 University of Chicago Law Review 1109, 1109–10 (1990) (noting that, despite the highly protective language, “the Supreme Court only rarely sided with the free exercise claimant, despite some very powerful claims”). See Smith, 494 U.S. at 878–879. 107 Stat. 1488, 42 U.S.C. §§2000bb et seq. (1993). See 42 U.S.C. §2000bb-1. Justice Kennedy’s opinion was joined in its entirety by Chief Justice Rehnquist and by Justices Stevens, Thomas, and Ginsburg. Justice Scalia joined all but a brief section discussing the legislative history of Section 5 of the Fourteenth Amendment. Boerne, 521 U.S. at 519. Id. at 533. 17 U.S. 316 (1819). See Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank,

Notes to Pages 71–77

169. 170. 171. 172. 173.

174. 175. 176. 177. 178. 179. 180.

181. 182. 183.

161

119 S. Ct. 2199 (1999) (ruling that Congress lacks Section 5 power to abrogate states’ sovereign immunity from suit for patent infringement). See Boerne, 521 U.S. at 544–545 (O’Connor, J., dissenting); id. at 565–566 (Souter, J., dissenting); id. at 566 (Breyer, J., dissenting). Id. at 519. See id. at 520–524 (discussing the legislative history of Section 5). See Michael W. McConnell, “Institutions and Interpretation: A Critique of City of Boerne v. Flores,” 111 Harvard Law Review 153 (1997). For earlier iterations of similar views, see Douglas Laycock, “RFRA, Congress, and the Ratchet,” 56 Montana Law Review 145, 153–165 (1995); Lawrence Gene Sager, “Fair Measure: The Legal Status of Underenforced Constitutional Norms,” 91 Harvard Law Review 1212, 1239–40 (1978). The launching pad for this view of congressional power lies in Justice Brennan’s opinion in Katzenbach v. Morgan, 384 U.S. 641, 651 n.10 (1966) (asserting that Congress has power under Section 5 to enforce rights, but that “§5 does not grant Congress power to exercise discretion in the other direction and to . . . ‘dilute’ ” constitutional guarantees). See McConnell, “Institutions and Interpretation,” 189–191. See id. at 174–181. See Lochner v. New York, 198 U.S. 45 (1905). 5 U.S. 137 (1803). 347 U.S. 483 (1954). 163 U.S. 537 (1896). For the suggestion that the Justices likely shared the prevailing racist attitudes of the times, see Michael J. Klarman, “The Plessy Era,” 1998 Supreme Court Review 303, 332. See Dred Scott v. Sandford, 60 U.S. 393 (1856). See generally Robert J. McCloskey, The American Supreme Court 150–169 (1960). See, for example, Michael J. Klarman, “Rethinking the Civil Rights and Civil Liberties Revolutions,” 82 Virginia Law Review 1 (1996); Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” 6 Journal of Public Law 279 (1957).

5. Doctrinal Tests and the Constitution 1. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). 2. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980). 3. For a similar but distinct typology, see Charles Fried, “Types,” 14 Constitutional Commentary 55, 56 (1997). A somewhat different catalogue of tests may be used to assess claims that government has exceeded the scope of delegated powers. 4. Compare id. at 55–56 (drawing this distinction).

162

Notes to Pages 78–82

5. See Engel v. Vitale, 370 U.S. 421 (1962); Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1962). 6. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (“Content-based regulations are presumptively invalid.”). 7. See, for example, Mathews v. Eldridge, 424 U.S. 319, 334–335 (1976). 8. FCC v. Beach Communications, Inc., 508 U.S. 307, 313–315 (1993). 9. See, for example, M.L.B. v. S.L.J., 519 U.S. 102 (1997). 10. Studies of purpose tests in constitutional law include Ashutosh Bhagwat, “Purpose Scrutiny in Constitutional Analysis,” 85 California Law Review 29 (1997); Paul Brest, “Palmer v. Thompson: An Approach to the Problem of Unconstitutional Motive,” 1971 Supreme Court Review 95; and John Hart Ely, “Legislative and Administrative Motivation in Constitutional Law,” 79 Yale Law Journal 1205 (1970). 11. A frequent animating idea is that the Constitution aims to establish a “deliberative democracy” and that the Courts have a role in enforcing the legislature’s deliberative responsibilities. See Cass R. Sunstein, “Interest Groups in American Public Law,” 38 Stanford Law Review 29, 69 (1985). 12. See, for example, United States v. Virginia, 519 U.S. 515, 533 (1996); J.E.B. v. Alabama, 511 U.S. 127, 140 n.11 (1994). 13. 391 U.S. 367 (1968). 14. Id. at 377. 15. Here and elsewhere, I treat “midlevel” tests calling for courts to determine whether statutes are substantially related to “important” governmental interests as “balancing” tests. See Kathleen M. Sullivan, “Post-Liberal Judging: The Roles of Categorization and Balancing,” 63 University of Colorado Law Review 293, 297 (1992) (characterizing intermediate scrutiny as an overtly balancing mode). 16. O’Brien, 391 U.S. at 377. 17. See Fried, “Types,” 63. 18. See Davis v. Bandemer, 478 U.S. 109, 138–139 (1986). 19. See, for example, T. Alexander Aleinikoff, “Constitutional Law in the Age of Balancing,” 96 Yale Law Journal 943, 972 (1987). 20. See, for example, Amy Gutmann and Dennis Thompson, Democracy and Disagreement (1996); John Rawls, Political Liberalism 54–58 (1993); Jeremy Waldron, Law and Disagreement (1999). 21. See, for example, Aleinikoff, “Constitutional Law in the Age of Balancing,” 943–944; Paul W. Kahn, “The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell,” 97 Yale Law Journal 1, 4–5 (1987). Robin West, “The Supreme Court, 1989 Term—Foreword: Taking Freedom Seriously,” 104 Harvard Law Review 43, 47–48 (1990). 22. Compare Melville Nimmer, “The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy,” California Law Review 935, 942–943 (1968) (distinguishing between “deﬁnitional” balancing, which aims at determining “which forms of speech are to be regarded as ‘speech’ within the meaning of the ﬁrst amendment,” and “ad hoc” balancing

Notes to Pages 82–86

23. 24. 25. 26. 27.

28.

29. 30.

31. 32. 33. 34.

35. 36.

37. 38.

39. 40.

41.

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“for the purpose of determining which litigant deserves to prevail in a particular case”). 519 U.S. 408 (1997). See, for example, Ohio v. Robinette, 519 U.S. 33, 39 (1996). See Wilson, 519 U.S. at 414–415. 424 U.S. 319, 334–335 (1976). The Supreme Court has sometimes characterized suspect-content tests as balancing tests. See, for example, City of Boerne v. Flores, 521 U.S. 507, 513 (1997) (characterizing as a balancing test the compelling government interest test once applied to statutes substantially burdening religious practices). See also Aleinikoff, “Constitutional Law in the Age of Balancing,” 946 (asserting that compelling state interest tests “exemplify” a “form” of balancing). See Gerald Gunther, “The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection,” 86 Harvard Law Review 1, 8 (1972). But see Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (protesting that strict scrutiny of federal afﬁrmative action should not necessarily be fatal in fact). See, for example, FCC v. Beach Communications, 508 U.S. 307, 315 (1993). See Bendix Autolite Corp. v. Midwesco Enter., 486 U.S. 888, 897 (1988) (noting that “the scale analogy is not really appropriate, since the interests on both sides are incommensurate”) (Scalia, J., concurring); Aleinikoff, “Constitutional Law in the Age of Balancing,” 972–996 (discussing the lack of an objective, external “scale of values” upon which to weigh the competing interests). See generally Symposium, “Law and Incommensurability,” 146 University of Pennsylvania Law Review 1169 (1998). Bendix Autolite Corp. v. Midwesco Enter., 486 U.S. 888, 897 (1988) (Scalia, J., concurring). See Steven Shiffrin, “Liberalism, Radicalism, and Legal Scholarship,” 30 U.C.L.A. Law Review 1103, 1211–12 (1983). Compare Jeremy Waldron, “Fake Incommensurability: A Reply to Professor Schauer,” 45 Hastings Law Journal 813, 815–817 (1994) (distinguishing “strong” and “weak” incommensurability). Id. at 816. See, for example, Antonin Scalia, “The Rule of Law as a Law of Rules,” 56 University of Chicago Law Review 1175, 1178–79 (1989) (discussing the lack of predictability that results from balancing). Id. at 1187. See Richard H. Fallon, Jr., “ ‘The Rule of Law’ as a Concept in Constitutional Discourse,” 97 Columbia Law Review 1, 7–9 (1997) (discussing rule-of-law desiderata). See id. at 9. See, for example, Adarand Constructors v. Pena, 515 U.S. 200, 235 (1995); Shaw v. Reno, 509 U.S. 630, 642 (1993); R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). 426 U.S. 229 (1976).

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42. Id. at 239–240. See also Mobile v. Bolden, 446 U.S. 55, 62 (1980) (plurality opinion) (holding that discriminatory intent is also necessary to establish a violation of the Fifteenth Amendment guarantee of equal voting rights). 43. 391 U.S. 367 (1968). 44. 403 U.S. 602 (1971). 45. In Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 763–764 (1995); id. at 772–773 (O’Connor, J., concurring in part and concurring in the judgement), a majority of the Court, albeit without a majority opinion, appeared to apply a different test under which the crucial question was whether the government could reasonably be perceived as having endorsed religion. For discussion of the state of Establishment Clause doctrine in the wake of Pinette and other recent cases, see Kent Greenawalt, “Quo Vadis: The Status and Prospects of ‘Tests’ under the Religion Clauses,” 1995 Supreme Court Review 323, 370 (1995). But compare Agostini v. Felton, 521 U.S. 203, 222–223 (1997) (afﬁrming the continuing relevance under the Establishment Clause of inquiries such as those called for by the “effect,” “purpose,” and “entanglement” prongs of the Lemon test). 46. The Supreme Court’s practice in cases under the Free Speech Clause presents at least a surface inconsistency: the approach in Arcara v. Cloud Books, Inc., 478 U.S. 697, 706–707 (1986), holding that the application of a generally applicable statute with a tendency to burden speech should not be subject to any First Amendment scrutiny, appears discordant with O’Brien, 391 U.S. at 377, which held that “incidental limitations of First Amendment freedoms” should be subjected to a special test often characterized as constituting an intermediate level of judicial scrutiny. See David Bogen, “Generally Applicable Laws and the First Amendment,” 26 Southwestern University Law Review 201, 222–232 (1997) (describing a “conﬂict” among the approaches of recent ﬁrst amendment cases). The most plausible rationalization of the cases holds that O’Brien’s elevated scrutiny will typically be triggered only when (1) the conduct that is incidentally restricted itself has an expressive element, and (2) there is therefore a “danger” that “a speech-suppressive administrative motive” was at work. Srikanth Srinivasan, “Incidental Restrictions of Speech and the First Amendment: A Motive-Based Rationalization of the Supreme Court’s Jurisprudence,” 12 Constitutional Commentary 401, 415–420 (1995). 47. Compare Washington v. Davis, 426 U.S. 229, 248 (1976) (“A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justiﬁcation, if in practice it beneﬁts or burdens one race more than another would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more afﬂuent white”). 48. See Frank I. Michelman, “Law’s Republic,” 97 Yale Law Journal 1493, 1505–07 (1988); Sunstein, “Interest Groups in American Public Law,” 30–31. 49. See Cass R. Sunstein, “Naked Preferences and the Constitution,” 84 Columbia Law Review 1689, 1710–27 (1984).

Notes to Pages 87–89

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50. 438 U.S. 265 (1978). In Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996), the court of appeals held that use of race as a factor in law school admissions was per se proscribed. According to the twojudge majority, “Justice Powell’s view in Bakke” that race could permissibly be treated as a “plus” in the search for diversity was “not binding precedent,” because it was “joined by no other Justice.” Hopwood, 78 F.3d at 944. In fact, however, Justice Powell’s reasoning was crucial to the judgment of the Court that not all use of race in the admissions process was in fact forbidden. In addition, a majority of the Court did join in part V.C of Justice Powell’s opinion, in which the permissibility of some consideration of race in admission processes is expressly contemplated. See Bakke, 438 U.S. at 320. 51. See Bakke, 438 U.S. 317. 52. Id. 53. See Abrams v. Johnson, 521 U.S. 74, 91 (1997); Miller v. Johnson, 515 U.S. 900, 910–911 (1995). 54. On the costs, see Abrams v. Johnson, 521 U.S. 74, 116–117 (1997) (Breyer, J., dissenting). 55. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 228 (1995). 56. See, for example, FCC v. Beach Communications, 508 U.S. 307, 315 (1993). 57. The number of such categories may be larger than is often appreciated. See Richard H. Fallon, Jr., “Sexual Harassment, Content-Neutrality, and the First Amendment Dog That Didn’t Bark,” 1994 Supreme Court Review 1, 21–28. 58. See, for example, R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (“Content-based regulations are presumptively invalid”). 59. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 75–77, 105–179 (1980). 60. See id. at 101–104, 183. 61. See id. at 54 (“our society does not, rightly does not, accept the notion of a discoverable and objectively valid set of moral principles, at least not a set that could plausibly serve to overturn the decisions of our elected representatives”). 62. See id. at 88–104. 63. See id. at 102–103 (“The approach to constitutional adjudication recommended here is akin to what might be called an ‘antitrust’ as opposed to a ‘regulatory’ orientation to economic affairs—rather than dictate substantive results it intervenes only when the ‘market,’ in our case the political market, is systematically malfunctioning”). 64. See id. at 105–179. 65. See id. at 145–170. 66. See id. at 105–134. 67. See John Hart Ely, “Another Such Victory: Constitutional Theory and Practice in a World Where Courts Are No Different from Legislatures,” 77 Virginia Law Review 833 (1991) (so acknowledging). 68. See, for example, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 849 (1992).

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Notes to Pages 89–90

69. See, for example, Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). 70. See, for example, Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723– 724 (1982). 71. But compare Richard H. Pildes, “Avoiding Balancing: The Role of Exclusionary Reasons in Constitutional Law,” 45 Hastings Law Journal 711, 712 (1994) (arguing that “much of constitutional law” involves a process by which “courts evaluate the different kinds of reasons that are off limits to government in different arenas”). 72. For discussion of why these tests are plausibly viewed as “surrogates” rather than alternatives, see text at notes 95–126 below. 73. See, for example, Palmer v. Thompson, 403 U.S. 217, 224–226 (1971); United States v. O’Brien, 391 U.S. 367, 382–385 (1968). Compare Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868) (concluding that the Court is not “at liberty” to inquire into the legislature’s motives for repealing a statute conﬁrming appellate jurisdiction). 74. 426 U.S. 229 (1976). 75. But see Daniel R. Ortiz, “The Myth of Intent in Equal Protection,” 41 Stanford Law Review 1105, 1107, 1135–36 (1989) (arguing that, contrary to the what the Court has said in many cases, equal protection doctrine actually involves a covert balancing of competing constitutional and governmental interests). 76. Washington v. Davis, 426 U.S. at 238–243. 77. For elaborations of the nature of the discriminatory intent that is forbidden, see Personnel Administrator v. Feeney, 442 U.S. 256, 279 (1979) (deﬁning discriminatory purpose in terms of an action taken “ ‘because of,’ not merely ‘in spite of,’ its adverse effect upon an identiﬁable group”); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 270 n.21 (1977) (suggesting that proof of a discriminatory purpose “would not necessarily have required invalidation of the challenged decision,” but would shift the burden to establish “that the same decision would have resulted even had the impermissible purpose not been considered”). 78. See Mobile v. Bolden, 446 U.S. 55, 61 (1980) (holding that discriminatory intent is also necessary to establish a violation of the Fifteenth Amendment guarantee of equal voting rights). 79. United States Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), cited in Romer v. Evans, 517 U.S. 620, 634 (1996). 80. United States Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534–535 (1973). 81. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 448 (1985). 82. Romer v. Evans, 517 U.S. at 633–634. 83. R.A.V. v. City of St. Paul, 505 U.S. 377, 396 (1992); Texas v. Johnson, 491 U.S. 397, 413 (1989) ; Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972). 84. R.A.V. v. City of St. Paul, 505 U.S. 377, 395–396 (1992); Burson v. Freeman, 504 U.S. 191, 198 (1992); Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., 502 U.S. 105, 117 (1991).

Notes to Pages 90–92

167

85. 403 U.S. 602 (1971). 86. See, for example, Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 398–399 (1993) (Scalia, J., dissenting); Lee v. Weisman, 505 U.S. 577, 644 (1992) (Scalia, J., dissenting); Wallace v. Jaffree, 472 U.S. 38, 108– 110 (1985) (Rehnquist, J., dissenting). 87. See Agostini v. Felton, 521 U.S. 203, 220–223 (1997). 88. See, for example, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993) (“[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, and it is invalid unless justiﬁed by a compelling interest and is narrowly tailored to advance that interest”). But compare id. at 558 (Scalia, J., concurring) (rejecting an inquiry into subjective purpose of the lawmakers and calling instead for examination of the “object” or aim of the statute). 89. See, for example, Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 592 (1989) (O’Connor, J., concurring) (“In recent years, we have paid particularly close attention [in Establishment Clause cases] to whether the challenged governmental practice either has the purpose or effect of ‘endorsing’ religion, a concern that has long had a place in our Establishment Clause jurisprudence”). 90. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993). 91. 505 U.S. 833 (1992). 92. Compare Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (assuming arguendo that legislation motivated by a purpose of interfering with abortion rights would be unconstitutional but ﬁnding that the record did not establish such a purpose). 93. Casey, 505 U.S. at 872. 94. Id. at 877; Bhagwat, “Purpose Scrutiny in Constitutional Analysis,” 329. An alternative reading of Casey would treat the “undue burden” standard as having established an “effects” test and as having precluded the further protection that would be given by a “purpose” test. 95. See Donald H. Regan, “The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause,” 84 Michigan Law Review 1091, 1285 (1986). 96. See Fried, “Types,” 63; Elena Kagan, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” 63 University of Chicago Law Review 413, 451 (1996). 97. See United States v. Virginia, 518 U.S. 515, 532–533 (1996) (intermediate scrutiny for gender-based classiﬁcation); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (strict scrutiny for race-based classiﬁcation). 98. See Ely, Democracy and Distrust 145–148. It is not my claim that the only reason to object to statutes facially discriminating on the basis or race is that they are likely to reﬂect forbidden purposes. Statutes explicitly discriminating against racial and other certain minorities may also be objectionable because they express a message that certain groups occupy a status inferior to others or be-

168

99. 100.

101.

102.

103. 104.

105. 106. 107.

108. 109. 110.

111. 112.

113. 114. 115.

Notes to Pages 92–93 cause discriminatory statutes and policies are likely to reﬂect prejudiced stereotypes. See David Strauss, “Afﬁrmative Action and the Public Interest,” 1995 Supreme Court Review 1, 24–26 (1996). See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 236 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 498 (1989); Regents of the University of California v. Bakke, 438 U.S. 265, 307 (1978) (opinion of Powell, J.). See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 226 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989). See generally Strauss, “Afﬁrmative Action and the Public Interest,” 26 (developing this theme). For discussions, see Susan H. Williams, “Content Discrimination and the First Amendment,” 139 University of Pennsylvania Law Review 615, 722–728 (1991); Geoffrey R. Stone, “Content-Neutral Restrictions,” 54 University of Chicago Law Review 46, 47–52 (1987). Compare Grayned v. Rockford, 408 U.S. 104, 115 (1972) (upholding a prohibition against disruptive picketing outside a school). The leading case is Chicago Police Dep’t v. Mosley, 408 U.S. 92, 94 (1972) (invalidating an ordinance banning all picketing except labor picketing within 150 feet of a school building during school hours). Compare Kagan, “Private Speech, Public Purpose,” 445 (noting similar seeming anomalies); Stone, “Content-Neutral Restrictions,” 54 (same). See Kagan, “Private Speech, Public Purpose,” 451. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 769–770 (1988); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150–151 (1969); Saia v. New York, 334 U.S. 558, 560 (1948). See Kagan, “Private Speech, Public Purpose,” 457. See Cox v. New Hampshire, 312 U.S. 569, 575 (1941). Saia v. New York, 334 U.S. 558, 562 (1948). See Richard H. Fallon, Jr., “Making Sense of Overbreadth,” 100 Yale Law Journal 853, 867 (1991). See generally Michael C. Dorf, “Incidental Burdens on Fundamental Rights,” 109 Harvard Law Review 1175, 1177–78 (1996) (discussing this use of the term incidental burden by the Supreme Court). See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 885 (1992). See Dorf, “Incidental Burdens,” 1226; compare Zablocki v. Redhail, 434 U.S. 374, 399 (1978) (Powell, J., concurring) (listing numerous state regulations governing marriage). See Dorf, “Incidental Burdens,” 1226–28. See id. at 1226. For diverse views about the consistency of state efforts to promote deliberation with the abortion right, see, for example, Ronald Dworkin, Life’s Dominion (1993); Jane Maslow Cohen, “A Jurisprudence of Doubt: Deliberative Autonomy and Abortion,” 3 Columbia Journal of Gender and Law 175, 193–219 (1992); James E. Fleming, “Securing Deliberative Autonomy,” 48 Stanford Law Review 1, 10–14 (1995).

Notes to Pages 93–95

169

116. Oliver Wendell Holmes, The Common Law 7 (1990 (1881)). 117. See Fried, “Types,” 64; Kagan, “Private Speech, Public Purpose,” 511. 118. The Court has determined, for example, that “[s]ubjective intentions play no role in ordinary, probable-cause . . . analysis” conducted to determine whether a search or seizure is reasonable and therefore permissible under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 813 (1996). 119. See Bhagwat, “Purpose Scrutiny in Constitutional Analysis,” 331–337. 120. In at least some areas, of course, the question whether a particular purpose is permissible or impermissible is hotly contested. See, for example, Timmons v. Twin Cities Area New Party, 520 U.S. 351, 352–353 (1997) (involving a dispute between the majority and dissenting opinions over whether the state had a legitimate interest in “the stability of [its] political system[],” which it was entitled to support by “enact[ing] reasonable election regulations that [tend to] favor the traditional two-party system”); Samuel Issacharoff and Richard Pildes, “No Place for Political Gerrymandering,” Texas Lawyer 25 (August 5, 1996) (challenging judicial acceptance of preservation of incumbents’ seats as a legitimate state purpose in drawing voting districts). 121. For useful surveys, see Frederick Schauer, Free Speech: A Philosophical Enquiry (1982); Kent Greenawalt, “Free Speech Justiﬁcations,” 89 Columbia Law Review 119 (1989). 122. To cite just a few examples of relevant First Amendment theories, legislation such as this would interfere with the free operation of the marketplace of ideas, compare Abrams v. United States, 250 U.S. 616, 630 (Holmes, J., dissenting); it would infringe the “autonomy” interests of citizens in being able to decide for themselves what to read and believe, see, for example, Thomas Scanlon, “A Theory of Freedom of Expression,” 1 Philosophy and Public Affairs 204, 205, 215–220 (1972); it would offend the principle that governmental censorship is incompatible with the presuppositions of political democracy, see, for example, Ely, Democracy and Distrust 112; it would thwart individual efforts to achieve “self-realization” through expression and free trafﬁc in ideas, see Martin Redish, “The Value of Free Speech,” 130 University of Pennsylvania Law Review 591, 594 (1982); and it would permit the stiﬂing of the dissenting voices that a democratic and vibrant society ought to foster, see Steven H. Shiffrin, The First Amendment, Democracy, and Romance 91 (1990). 123. For example, compare Christopher Eisgruber and Lawrence Sager, “Why the Religious Freedom Restoration Act Is Unconstitutional,” 69 New York University Law Review 437, 447–449 (1994) (arguing that the Free Exercise Clause only prohibits governmental singling out of religious minorities and religious practices for disfavored treatment) with Michael McConnell, “Religious Freedom at a Crossroads,” 59 University of Chicago Law Review 115, 169 (1992) (arguing that the Free Exercise Clause protects religiously motivated conduct). 124. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993). 125. See Cass R. Sunstein, Legal Reasoning and Political Conﬂict 4–5, 35–61 (1996). 126. See id. at 47 (“The distinctly legal solution to the problem of pluralism is to produce agreement on particulars, with the thought that people who are puz-

170

127.

128. 129.

130.

131. 132.

133. 134. 135.

Notes to Pages 96–97 zled by general principles, or disagree on them, can agree on individual cases”). See generally Ely, Democracy and Distrust 138–145, 152 (arguing for judicial review aimed at protecting processes of political democracy and safeguarding minorities from majority prejudice, but otherwise generally deferring to decisions of politically accountable institutions). See Richard Parker, “The Past of Constitutional Theory—and Its Future,” 42 Ohio State Law Journal 223, 236–239 (1981). See, for example, Michelman, “Law’s Republic”; Cass R. Sunstein, “Beyond the Republican Revival,” 97 Yale Law Journal 1539 (1988); Sunstein, “Interest Groups in American Public Law.” The phrase “discrete and insular minorities” actually traces to a case that predated the Warren Court, United States v. Carolene Prods., 304 U.S. 144, 152 n.4 (1938). For an incisive critique of the Carolene Products theory, see Bruce A. Ackerman, “Beyond Carolene Products,” 98 Harvard Law Review 713 (1985). See Sunstein, “Republican Revival,” 1541–1542; Sunstein, “Interest Groups in American Public Law,” 31. The link between republican political ideals and commitment to judicial review to ensure appropriate deliberations is by no means a necessary one. It is possible to hold republican beliefs about the legislature’s proper function, yet believe that aggressive judicial review does more to undermine than to further the responsible, deliberative citizenship that forms the core of the republican ideal. For example, James Bradley Thayer argued that deferential judicial review is appropriate to encourage more thoughtful deliberation among legislators, who otherwise might proceed on the assumption that they can rely on the courts to correct their mistakes, and to ensure that “responsibility can be brought sharply home [to the people] where it belongs.” James Bradley Thayer, “The Origin and Scope of the American Doctrine of Constitutional Review,” 7 Harvard Law Review 129, 155–156 (1893). Moreover, strong similarities exist between modern republican and at least some liberal theories, including that of John Rawls, that also incorporate a political ideal of reasoned deliberation. See Richard H. Fallon, Jr., “What Is Republicanism, and Is It Worth Reviving?” 102 Harvard Law Review 1695, 1730 (1989) (noting liberal analogues to and inﬂuences on modern republican ideals of reasoned political deliberation). United States v. Carolene Prods., 304 U.S. 144, 153 n.4 (1938). See Charles Lawrence, “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism,” 39 Stanford Law Review 317, 322–323, 340–345 (1987). Such tests are generally consistent with “pluralist” political theories, which tend to depict politics as a pervasively self-interested struggle among various contending interest groups. See Sunstein, “Interest Groups in American Public Law,” 32. On the whole, pluralist theories tend to support minimalistic judicial review, on the morally skeptical hypothesis that there is no objectively correct answer to political and distributive questions. See, for example, Ely, Democracy

Notes to Pages 97–100

136.

137. 138.

139. 140. 141.

142. 143. 144. 145. 146. 147. 148.

149. 150. 151.

171

and Distrust 54 (observing that “our society does not, rightly does not, accept the notion of a discoverable and objectively valid set of moral principles”). Reasoning from this skeptical hypothesis, pluralists typically conclude that courts should, for the most part, defer to the resolutions reached by the political process, but should intervene to correct process failures in the political market. See, for example, id. at 54, 102–103. For recent discussions of competing conceptions of democracy and their relevance to constitutional adjudication, see Ronald Dworkin, Freedom’s Law 15–26 (1996); Frank I. Michelman, Brennan and Democracy (1999). For a lucid, balanced account, see David L. Shapiro, Federalism: A Dialogue (1995). See generally Jefferson Powell, “The Oldest Question in Constitutional Law,” 79 Virginia Law Review 633, 664–681 (1993) (discussing often failed historical efforts by the Supreme Court to formulate judicially enforceable principles of constitutional federalism); David L. Shapiro, “Wrong Turns: The Eleventh Amendment and the Pennhurst Case,” 98 Harvard Law Review 61, 67 (1984) (tracing the tortured and frequently misguided history of Eleventh Amendment doctrine). See Lochner v. New York, 198 U.S. 45 (1905). See Shapiro, Federalism 29–30. These Justices have made up the Court’s 5-4 majority in such recent important federalism cases as Alden v. Maine, 119 S. Ct. 2240 (1999) (holding that Congress lacks power under Article I of the Constitution to force the states to submit to suit in their own courts for violation of federal law); Printz v. United States, 521 U.S. 898 (1997) (holding that state ofﬁcials cannot be compelled to enforce federal law by conducting background checks on prospective gun purchasers); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (holding that Congress cannot abrogate states constitutional immunity from suit in federal court when legislating under Article I); and United States v. Lopez, 514 U.S. 549 (1995) (invalidating a federal statute forbidding the possession of guns in school zones). 514 U.S. 549 (1995). Id. at 558–559. 120 S. Ct. 1740 (2000). 426 U.S. 833, 851 (1976). See id. at 871. 469 U.S. 528, 546–547 (1985). Id. at 552. See also id. at 551 n.11 (citing Herbert Wechsler, “The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the Federal Government,” 54 Columbia Law Review 543 (1954)). 505 U.S. 144 (1992). 521 U.S. 898 (1997). See, for example, Alden v. Maine, 119 S. Ct. 2240 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).

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152. See generally Erwin Chemerinsky, Federal Jurisdiction 402–446 (3d ed. 1999). 153. The leading case is Ex parte Young, 209 U.S. 123 (1908). 154. See, for example, Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Lincoln County v. Luning, 133 U.S. 529 (1890).

6. Ordinary Adjudication 1. James C. Rehnquist, “The Power That Shall Be Vested in a Precedent: Stare Decisis, the Constitution, and the Supreme Court,” 66 Boston University Law Review 345, 347 (1986). 2. See, for example, Henry Paul Monaghan, “Stare Decisis and Constitutional Adjudication,” 88 Columbia Law Review 723, 744–748 (1988) (discussing effects of stare decisis); Frederick Schauer, “Precedent,” 39 Stanford Law Review 571, 595–602 (1989) (discussing virtues of constraint by precedent). 3. See Frank Easterbrook, “Stability and Reliability in Judicial Decisions,” 73 Cornell Law Review 422, 423 (1988); Note, “Constitutional Stare Decisis,” 103 Harvard Law Review 1344, 1349 (1990). 4. See David A. Strauss, “Common Law Constitutional Interpretation,” 63 University of Chicago Law Review 877, 910–913 (1996). The concept of “focal points” traces to Thomas C. Schelling, The Strategy of Conﬂict 58–80 (1960). Schelling introduced the term to refer to potential solutions to coordination or other problems that, for cultural or psychological reasons, are peculiarly salient and thus peculiarly capable of supporting agreements, coordinated behavior, and stable equilibria. 5. In emphasizing the “reasonable,” I loosely follow John Rawls, Political Liberalism 48–54 (1993). Rawls distinguishes the “reasonable” from the “rational” as a distinctive attribute necessary to social cooperation in identifying and implementing principles of justice. 6. See Strauss, “Common Law Constitutional Interpretation,” 913. 7. See Philip P. Frickey, “A Further Comment on Stare Decisis and the Overruling of National League of Cities,” 2 Constitutional Commentary 341, 351 (1985); Michael Gerhardt, “The Role of Precedent in Constitutional Decisionmaking and Theory,” 60 George Washington Law Review 68, 76–77 (1991); Earl M. Maltz, “Some Thoughts on the Death of Stare Decisis in Constitutional Law,” 1980 Wisconsin Law Review 467. 8. See, for example, Agostini v. Felton, 521 U.S. 203, 235 (1997) (overruling Aguilar v. Felton, 473 U.S. 402 (1985)); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 66 (1996) (overruling Pennsylvania v. Union Gas Co., 491 U.S. 1, 19 (1989)). 9. Celebrated examples include the continuing insistence of some Justices that the Court erred in recognizing a “fundamental” right to abortion in Roe v. Wade—see, for example, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 944 (1992) (Rehnquist, C.J., concurring in part and dissenting in part); the reiterated assertion of Justices Brennan and Marshall that

Notes to Pages 103–104

10. 11. 12. 13. 14.

15.

16. 17.

18. 19.

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the death penalty was per se unconstitutional—see, for example, Sorola v. Texas, 493 U.S. 1005, 1011 (1989) (Brennan, J., joined by Marshall, J., dissenting from denial of certiorari); and the long-held position of Justice Black that, notwithstanding the Court’s contrary decision in Roth v. United States, 354 U.S. 476 (1957), the First Amendment protected even “obscene” speech from governmental regulation—see, for example, Ginzburg v. United States, 383 U.S. 463, 476 (1966) (Black, J., dissenting). See generally Maurice Kelman, “The Forked Path of Dissent,” 1985 Supreme Court Review 227, 248–258 (assessing the option open to Justices of refusing to recognize the authority of decisions from which they dissented). See Gerhardt, “Role of Precedent,” 78; Monaghan, “Stare Decisis,” 744. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995). See Abrams v. Johnson, 521 U.S. 74, 90 (1997); Miller v. Johnson, 515 U.S. 900, 905 (1995). See Agostini v. Felton, 521 U.S. 203, 222–223 (1997). See, for example, Reynolds v. Sims, 377 U.S. 533, 590 (1964) (Harlan, J., dissenting) (arguing that the Fourteenth Amendment was not originally understood or intended to protect voting rights); School Dist. of Abington Township v. Schempp, 374 U.S. 203, 254 (1963) (Brennan, J., concurring) (acknowledging that “[I]t has been suggested, with some support in history, that absorption of the First Amendment’s ban against congressional legislation ‘respecting an establishment of religion’ is conceptually impossible because the Framers meant the Establishment Clause also to foreclose any attempt by Congress to disestablish the existing state churches”); Thomas C. Grey, “Do We Have an Unwritten Constitution?,” 27 Stanford Law Review 703, 711 (1975) (noting that “[t]here is no textual warrant for reading into the due process clause of the ﬁfth amendment any of the prohibitions directed against states by the equal protection clause”). Even if the Court had not granted certiorari with respect to one of these issues, a respondent is entitled to argue any ground consistent with the record on the basis of which the judgment might be sustained. See Robert L. Stern, Eugene Gressman, Stephen M. Shapiro, and Kenneth S. Geller, Supreme Court Practice 363–364 (7th ed. 1993). 403 U.S. 602 (1971). See Morrison v. Olson, 487 U.S. 654, 698 (1989) (Scalia, J., dissenting); Bendix Autolite Corp. v. Midwesco Enters., 486 U.S. 888, 897 (1988) (Scalia, J., concurring); Antonin Scalia, “The Rule of Law as a Law of Rules,” 56 University of Chicago Law Review 1175, 1187 (1989). See Maryland v. Wilson, 519 U.S. 408, 411–413 (1997); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358–359 (1997). See, for example, Gilbert v. East Stroudsburg Univ., 520 U.S. 924, 931–932 (1997) (applying a doctrinally prescribed balancing test to determine that due process does not require a state employer to provide a hearing before imposing a temporary suspension on an employee charged with a felony). See also

174

20.

21. 22. 23.

24.

25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35.

36. 37. 38. 39. 40.

Notes to Pages 105–107 Scalia, “Rule of Law,” 1187 (acknowledging that, despite the desirability of a “law of rules,” the Court “will have totality of circumstances tests and balancing modes of analysis . . . forever—and for my sins, I will probably write some of the opinions that use them”). Aware of their limited resources, Justices will occasionally signal that they would welcome fuller exploration of matters that they regard as relevant by other parties in future cases. See, for example, Camps Newfound/Owatonna, Inc. v. Harrison, 520 U.S. 563, 637 (1997) (Thomas, J., dissenting). Denver Area Educ. Telecomm. Consortium v. FCC, 518 U.S. 727, 778 (1996) (Souter, J., concurring). 519 U.S. 102 (1996). Justice Ginsburg wrote the opinion of the Court, which was joined by Justices Stevens, O’Connor, Souter, and Breyer. See id. at 106. Justice Kennedy concurred separately. See id. at 128. See Boddie v. Connecticut, 401 U.S. 371, 374 (1971); Rinaldi v. Yeager, 384 U.S. 305, 310 (1966); Mayer v. Chicago, 404 U.S. 189, 194 (1971); Grifﬁn v. Illinois, 351 U.S. 12, 16 (1956). See Mayer v. Chicago, 404 U.S. 189, 194 (1971); Grifﬁn v. Illinois, 351 U.S. 12, 16 (1956). See Santosky v. Kramer, 455 U.S. 745, 774 (1982); Lassiter v. Department of Social Servs., 452 U.S. 18, 101 (1981). Justice Thomas’s opinion was joined by Justice Scalia, and in part by Chief Justice Rehnquist. M.L.B., 519 U.S. at 129 (Thomas, J., dissenting). Id. at 110. Id. at 132–133 (Thomas, J., dissenting). 426 U.S. 229, 239–240 (1976). M.L.B., 519 U.S. at 133–139 (Thomas, J., dissenting). Id. at 139. Id. at 120–121 (“We place this case within the framework established by our past decisions in this area”). See id. Justice Ginsburg did distinguish Washington v. Davis, 426 U.S. 229 (1976). Unlike the test challenged in Davis, the statute involved in M.L.B. did not merely have a disproportionate impact on an identiﬁable group; the burdens that it imposed “apply to all indigents and do not reach anyone outside that class.” M.L.B., 519 U.S. at 126–127. See Cass R. Sunstein, “The Supreme Court, 1995 Term—Foreword: Leaving Things Undecided,” 110 Harvard Law Review 4, 20 (1996). See Cass R. Sunstein, Legal Reasoning and Political Conﬂict 4–5, 35–61 (1996). See id. at 38–46, 194–196. See id. at 195. See, for example, Thomas Nagel, The Last Word 109–125 (1997) (arguing that skeptical and relativist claims must be rejected if incompatible with other claims, including ﬁrst-order ethical claims, that are better supported by reason

Notes to Pages 107–109

41.

42.

43. 44. 45. 46. 47. 48. 49.

50. 51. 52. 53. 54. 55.

56. 57.

58.

175

and experience); John Rawls, A Theory of Justice 20–22, 48–53 (1971) (developing the concept of “reﬂective equilibrium” as a test of the soundness of political beliefs); Ronald Dworkin, “Objectivity and Truth: You’d Better Believe It,” 25 Philosophy and Public Affairs 87, 119 (1996). Antecedents of coherence tests in ethics and politics trace back to Aristotle. See Stuart Hampshire, Two Theories of Morality 6–28 (1977). But see Joseph Raz, “The Relevance of Coherence,” 72 Boston University Law Review 273, 275 (1992) (disputing that coherence is central to the justiﬁcation of belief). See Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 69 (1962) (“When it strikes down legislative policy, the Court must act rigorously on principle, else it undermines the justiﬁcation for its power”). See Frank I. Michelman, “Justiﬁcation and Justiﬁability of Law in a Contradictory World,” in Justiﬁcation 71, 85–87 (J. Roland Pennock and John H. Chapman, eds., 1986). See also David L. Shapiro, “In Defense of Judicial Candor,” 100 Harvard Law Review 731, 737 (1987) (terming “reasoned response to reasoned argument” an “essential aspect” of the judicial process). 521 U.S. 203 (1997). 473 U.S. 373 (1985). 473 U.S. 402 (1985). 403 U.S. 602, 612–613 (1971). See Ball, 473 U.S. at 387–389. Id. at 391–392; Aguilar, 473 U.S. at 395–397. Agostini, 521 U.S. at 203. In Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 13 (1993), the Court had upheld the use of a state-employed sign language interpreter to assist a deaf student in a parochial school. Agostini, 521 U.S. at 223. 474 U.S. 481 (1986). Agostini, 521 U.S. at 223. Id. Id. at 230–231. Dissenting in Agostini, Justice Souter, joined in whole by Justices Stevens and Ginsburg, and in part by Justice Breyer, saw an issue of ﬁrst principle unavoidably at stake—namely, the principle, too fundamental to be rejected based on a few possibly mistaken precedents, that government should not provide direct ﬁnancial subsidies or their equivalents to religious institutions. See id. at 243 (Souter, J., dissenting). See Charles Fried, “The Artiﬁcial Reason of the Law or: What Lawyers Know,” 60 Texas Law Review 35, 57 (1981). For a lucid discussion of the philosophical presuppositions of reasoning by analogy, see Scott Brewer, “Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy,” 109 Harvard Law Review 923, 926 (1996). Chief Justice Rehnquist and Justices Kennedy, Scalia, and Thomas have all attacked the “objective observer” test favored by Justice O’Connor. See Alle-

176

Notes to Pages 110–113

gheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 668 (1989) (Kennedy, J., concurring in part and dissenting in part); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 763–770 (1995) (Scalia, J.). And in Lee v. Weisman, 505 U.S. 577, 635 (1992), the Chief Justice and Justices Scalia and Thomas divided sharply with Justice Kennedy. 59. See, for example, Ronald Dworkin, Law’s Empire 176–275 (1986); Ronald Dworkin, Taking Rights Seriously 259 (1977).

7. Legitimacy and the Unwritten Constitution 1. See generally Symposium, “Fidelity in Constitutional Theory,” 65 Fordham Law Review 1247 (1997). 2. See, for example, Joseph D. Grano, “Prophylactic Rules in Criminal Procedure: A Question of Article III Illegitimacy,” 80 Northwestern University Law Review 100 (1985). 3. See Gary Lawson, “The Constitutional Case against Precedent,” 17 Harvard Journal of Law and Public Policy 23, 23–25 (1994); Edwin Meese, “The Law of the Constitution,” 61 Tulane Law Review 979, 983–985 (1987). 4. For earlier works suggesting that the United States has an unwritten as well as a written Constitution, see, for example, William Bennett Munro, The Makers of the Unwritten Constitution 1–23 (1930); Christopher G. Tiedeman, The Unwritten Constitution of the United States 43–45 (1890); Thomas Grey, “Do We Have an Unwritten Constitution?” 27 Stanford Law Review 703, 710–714 (1975). But see Michael S. Moore, “Do We Have an Unwritten Constitution?,” 63 Southern California Law Review 107 (1989) (arguing that we do not have an unwritten constitution in any signiﬁcant sense). Others have suggested that the written Constitution has undergone a number of relatively speciﬁc, unwritten “amendments.” See, for example, 1 Bruce Ackerman, We The People: Foundations 44–50, 81–130 (1991); David A. Strauss, “Common Law Constitutional Interpretation,” 63 University of Chicago Law Review 877, 905–906 (1996). 5. See, for example, Sanford Levinson, Constitutional Faith 29–30 (1988); Grey, “Unwritten Constitution”; Jed Rubenfeld, “Reading the Constitution as Spoken,” 104 Yale Law Journal 1119 (1995); Strauss, “Common Law Constitutional Interpretation.” 6. See, for example, Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 351–372 (1977). 7. See, for example, Ackerman, We The People 44–50, 81–130. 8. Compare F. F. Ridley, “There Is No British Constitution: A Dangerous Case of the Emperor’s Clothes,” 41 Parliamentary Affairs 340, 341 (1988) (arguing that “Britain does not really have a constitution at all,” because British practice dissolves the distinction between constitutional law and other law). 9. Indeed, as one authority has remarked, “[t]here is hardly any discussion of this [topic] in the literature.” Colin R. Munro, “What Is a Constitution?,” 1983 Public Law 563, 564.

Notes to Pages 113–114

177

10. See Marbury v. Madison, 5 U.S. 137 (1803); Ralph Ketcham, Framed for Posterity: The Enduring Philosophy of the Constitution 11 (1993); Charles Fried, “The Supreme Court, 1994 Term—Foreword: Revolutions?” 109 Harvard Law Review 13, 30 (1995) (identifying the Constitution with “the supreme law”); Joseph Raz, “On the Authority and Interpretation of Constitutions: Some Preliminaries,” in Constitutional Theory: Philosophical Foundations 152, 153 (Larry Alexander, ed., 1998); Rubenfeld, “Reading the Constitution as Spoken,” 1137 (“by a constitution we mean something with the force of law—law capable of restraining popular politics as well as creating the institutions for its exercise”). 11. See C. F. Strong, Modern Political Constitutions 9–10 (rev. ed. 1949); Raz, “Authority and Interpretation of Constitutions,” 153; Fried, “Foreword,” 24. 12. See Charles Fried, “Constitutional Doctrine,” 107 Harvard Law Review 1140, 1152 (1994); Fried, “Foreword,” 32–33; Raz, “Authority and Interpretation of Constitutions,” 153. 13. See Kent Greenawalt, “The Rule of Recognition and the Constitution,” 85 Michigan Law Review 621, 653–654 (1987) (recognizing that the authority of precedent rests on acceptance, and cannot be derived from the supreme criterion for the validity of law, involving the Constitution and all duly enacted amendments). 14. See, for example, Fried, “Constitutional Doctrine”; Michael Gerhardt, “The Role of Precedent in Constitutional Decisionmaking and Theory,” 60 George Washington Law Review 68, 87–90 (1991); Henry Paul Monaghan, “Stare Decisis and Constitutional Adjudication,” 88 Columbia Law Review 723 (1988). 15. It may or may not be easy to explain why other ofﬁcials and lower court judges must accept the Supreme Court’s interpretation of “the Constitution.” See Evan Caminker, “Why Must Inferior Courts Obey Supreme Court Precedents?” 46 Stanford Law Review 817 (1994). 16. The most prominent and inﬂuential practice-based theorist is Ronald Dworkin. See Ronald Dworkin, Law’s Empire 254–259, 397–399 (1986). For a discussion of practice-based constitutional theories, see Richard H. Fallon, Jr., “How to Choose a Constitutional Theory,” 87 California Law Review 535, 554–562 (1999). 17. See, for example, Dames & Moore v. Regan, 453 U.S. 654, 678–686 (1981); United States v. Midwest Oil Co., 236 U.S. 459, 469–473 (1915); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610–611 (1954) (Frankfurter, J., concurring). 18. See generally Joel R. Paul, “The Geopolitical Constitution: Executive Expediency and Executive Agreements,” 86 California Law Review 671 (1998); G. Edward White, “The Transformation of the Constitutional Regime of Foreign Relations,” 85 Virginia Law Review 1 (1999). 19. See Paul, “Geopolitical Constitution,” 675–677. 20. See United States v. Belmont, 301 U.S. 324 (1937); United States v. Pink, 315 U.S. 203 (1942).

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21. See Robert H. Bork, The Tempting of America: The Seduction of Law by Politics 155– 158 (1990); Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 138–140 (1997); Barry Friedman and Scott B. Smith, “The Sedimentary Constitution,” 147 University of Pennsylvania Law Review 1 (1999); Monaghan, “Stare Decisis,” 747, 758. 22. Compare Fried, “Foreword,” 33 (asserting that the Constitution establishes a structure for “generating law” that may produce substantively “revolutionary” changes in constitutional doctrine “without any constitutional change at all”); Lawson, “The Constitutional Case against Precedent,” 29–30 (considering and rejecting a similar argument). 23. See Paul, “Geopolitical Constitution”; White, “The Transformation of the Constitutional Regime of Foreign Relations.” 24. See Bruce Ackerman, “The Storrs Lectures: Discovering the Constitution,” 93 Yale Law Journal 1013, 1053–55, 1069–71 (1984); Richard Epstein, “The Proper Scope of the Commerce Power,” 73 Virginia Law Review 1387 (1987). 25. See Greenawalt, “Rule of Recognition and the Constitution,” 653–654. 26. Compare id. at 655–656 (doubting “[w]hether every standard of interpretation that constrains judges should be characterized as ‘legal,’ ” but afﬁrming that “[w]hether standards are distinctly legal or not, so long as judges are bound to follow them in deciding what the Constitution means, the standards need to be accorded some place among ultimate or derivative criteria for determining law”). 27. See MacIntire v. Ohio Elections Comm’n, 514 U.S. 334, 359 (1995) (Thomas, J., concurring in the judgment) (calling for originalist interpretation of the First Amendment); Antonin Scalia, “Originalism: The Lesser Evil,” 57 University of Cincinnati Law Review 849, 862 (1989) (defending an originalist over a nonoriginalist approach to interpretation); Clarence Thomas, “Judging,” 45 University of Kansas Law Review 1, 6–7 (1996). 28. See, for example, Cass R. Sunstein, “The Supreme Court, 1995 Term—Foreword: Leaving Things Undecided,” 110 Harvard Law Review 4, 14 (1996) (noting that most Justices of the current Court have not formally subscribed to any formal interpretive methodology at all). 29. See Greenawalt, “Rule of Recognition and the Constitution,” 656. 30. See, for example, Monaghan, “Stare Decisis.” 31. See, for example, Webster v. Reproductive Health Servs., 492 U.S. 490, 512 (1989); Frisby v. Schultz, 487 U.S. 474, 483 (1988). 32. See, for example, Frank I. Michelman, “Justiﬁcation (and Justiﬁability) of Laws in a Contradictory World,” in 28 Nomos: Justiﬁcation, 71, 72 (J. Pennock and J. Chapman, eds., 1986). Compare Dworkin, Law’s Empire 45–86 (arguing that law is an “interpretive concept,” and that lawyers must develop individual theories of the practice in which they are engaged in order to know what constraints and obligations the practice imposes). 33. For an argument of this general tenor, see Moore, “Unwritten Constitution.”

Notes to Pages 117–120

179

34. Compare Stanley Fish, Doing What Comes Naturally 121 (1989) (arguing that because “rules are texts,” which “are in need of interpretation,” they “cannot themselves serve as constraints on interpretation”). 35. See, for example, Berger, Government by Judiciary 351–372. 36. For a lucid and provocative exploration of historically evolving conceptions of constitutional legitimacy, see Paul W. Kahn, Legitimacy and History: Self-Government in American Constitutional Theory (1992). 37. See, for example, David Copp, “The Idea of a Legitimate State,” 28 Philosophy and Public Affairs 3, 3–5 (1999) (using the term in roughly this way). 38. Tyler Pipe Indus. v. Washington State Dep’t of Revenue, 483 U.S. 232, 265 (1987) (Scalia, J., dissenting). 39. See the discussion in Chapter 1. 40. See Richard Posner, Overcoming Law 246–255 (1995). 41. This idea traces to the fountainhead of American constitutional thought, The Federalist Papers (Clinton Rossiter, ed., 1961.) See “The Federalist No. 22” (A. Hamilton): “The fabric of American empire ought to rest on the solid basis of the consent of the people. The streams of national power ought to ﬂow immediately from that pure, original fountain of all legitimate authority.” 42. Close to the Ulysses paradigm is the “parable of the pigeon” invoked by Laurence Tribe in the ﬁrst and second editions of his inﬂuential treatise, American Constitutional Law (2d ed. 1988), to explain why the Constitution should be enforced against the will of current political majorities. Prior to the most recent third edition, Tribe purported to seek “the outlines of an answer” in an experiment in which “[p]igeons were given a small but immediate food reinforcement for pecking a certain key, and a larger but delayed reinforcement for not pecking it.” Id. at 10. Nearly all of the pigeons initially pecked the key providing immediate food. But many, according to Tribe, “regretted their choice,” and subsequently learned to peck a different key that would remove the immediate temptation and force them to wait for a larger reward. Id. at 11. The lesson, Tribe concluded, was that “even pigeons seem capable of learning to bind their ‘own future freedom of choice’ in order to reap the rewards of acting in ways that would elude them under the pressures of the moment.” Id. As it was with the pigeons in the impulse control experiment, so it is, Tribe implied, with us and the Constitution. In the ﬁrst volume of the most recent edition of his treatise (3d ed. 1999), Tribe develops a critique of the notion that either the “parable of the pigeon” or the model of Ulysses can illuminate issues involving the legitimacy of judicial review. See id. at 22–23. 43. See Jeremy Waldron, Law and Disagreement 270–275 (1999). 44. Doubts about the capacity of one generation to bind subsequent generations by adopting a constitution are by no means latecomers on the constitutional scene, but trace to the writings of Thomas Jefferson and Thomas Paine. See Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy 138– 150 (1995).

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45. See Louis E. Feldman, “Originalism through Raz-Colored Glasses,” 140 University of Pennsylvania Law Review 1389, 1422–23 (1992). 46. Compare John Rawls, Political Liberalism 53–54 (1993) (“Insofar as we are reasonable, we are ready to work out the framework for the public social world, a framework it is reasonable to expect everyone to endorse and act on, provided others can be relied on to do the same.”). 47. See, for example, Don Herzog, Happy Slaves: A Critique of Consent Theory (1989). 48. See Rubenfeld, “Reading the Constitution as Spoken,” 1153. I have not listed this as a deﬁning feature of constitutionalism because there may be some nation states in which this role is played by cultural forces other than the constitution. See Colin R. Munro, Studies in Constitutional Law 5 (1987) (treating it as a “contingent factor[]” that a constitution may “help to excite the reverence of the citizenry”). 49. My argument roughly parallels that offered in Raz, “Authority and Interpretation of Constitutions,” 169–176. 50. Although judges and certain other ofﬁcials may need make promises to uphold the Constitution and undertake other commitments that approximate actual consent, for much of the population there may be little more than passive “acquiescence.” See Paul Brest, “The Misconceived Quest for the Original Understanding,” 60 Boston University Law Review 204, 226 (1980). 51. See Raz, “Authority and Interpretation of Constitutions,” 169–176. 52. See Deborah Hellman, “The Importance of Appearing Principled,” 37 Arizona Law Review 1107, 1122–27 (1995). 53. See, for example, City of Boerne v. Flores, 521 U.S. 507, 519 (1997) (suggesting that congressional legislation enforcing rights not recognized by the Court itself would “alter the meaning” of the underlying constitutional guarantee). 54. See Thomas Grey, “The Constitution as Scripture,” 37 Stanford Law Review 1, 14–15 (1984) (emphasizing that the framers attached great signiﬁcance to the writtenness of the Constitution, as did John Marshall, who relied on its written character to justify the institution of judicial review). 55. See Levinson, Constitutional Faith 191–194; Ackerman, 1 We The People 314– 322. 56. Compare Strauss, “Common Law Constitutional Interpretation,” 916–919 (noting that the text “matters most for the least important questions,” while issues that “elicit strong reactions” are much less likely to be resolved “formalistically”). 57. See Tiedeman, Unwritten Constitution of the United States 163–165.

8. Against Populism and Methodological Pragmatism 1. See, for example, Richard Parker, “Here, the People Rule”: A Constitutional Populist Manifesto (1994); Mark Tushnet, Taking the Constitution Away from the Courts (1999).

Notes to Pages 127–133

181

2. See Paul Brest, “Who Decides?,” 58 Southern California Law Review 661, 664, 670 (1985). 3. See, for example, Jeremy Waldron, Law and Disagreement (1999). 4. See, for example, Tushnet, Taking the Constitution Away from the Courts; Robin West, Progressive Constitutionalism (1994). 5. See Robert Bork, Slouching toward Gomorrah 114–119 (1996). 6. See, for example, West, Progressive Constitutionalism; Mary Becker, “Conservative Free Speech and the Uneasy Case for Judicial Review,” 64 University of Colorado Law Review 975 (1993). 7. See Tushnet, Taking the Constitution Away from the Courts. 8. 347 U.S. 483 (1954). 9. 198 U.S. 45 (1905). 10. 410 U.S. 113 (1973). 11. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 105–179 (1980). 12. Waldron, Law and Disagreement 245–249, 291–302. 13. In 1997, there were 87,453 local governmental units in the United States, comprising 3,043 counties, 19,372 “municipal” and 16,629 “township” governments, 13,726 school districts, and 34,683 “special” districts. Statistical Abstract of the United States 1998: The National Data Book 305 (1998). 14. Id. at 331. 15. See Tushnet, Taking the Constitution Away from the Courts 163. 16. U.S. Const., art. VI, §2. 17. See, for example, Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Mitchum v. Foster, 407 U.S. 225 (1972). 18. See Mills v. Alabama, 384 U.S. 214 (1966). 19. See sec. 1, 14 Stat. 430 (1867). Violation of this so-called Tenure of Ofﬁces Act was one of the grounds for impeachment alleged against President Andrew Johnson. 20. See, for example, New York v. United States, 505 U.S. 144 (1992). 21. See Bork, Slouching toward Gomorrah, 114–119 (proposing that Congress should be authorized by constitutional amendment to reverse Supreme Court decisions). 22. 521 U.S. 507 (1997). 23. Richard A. Posner, “Pragmatic Adjudication,” 18 Cardozo Law Review 1 (1996). 24. Id. at 4. 25. See, for example, Richard A. Posner, The Problematics of Moral and Legal Theory 227–265 (1999). 26. See Richard A. Posner, Overcoming Law 243 (1995). Even in “Pragmatic Adjudication,” after setting out the bold claim that pragmatist judges would recognize no duty of ﬁdelity to legal authorities, Judge Posner refers unselfconsciously to “rules of law,” describes judges as under an obligation to “consider all the legal materials” relevant to a case, says that a judicial opinion must demonstrate

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that the judge “is a competent legal reasoner,” and denounces judges who “ignore the good of compliance with settled rules of law” as agents of “judicial tyranny.” Posner, “Pragmatic Adjudication,” 16–17. 27. See, for example, Posner, Problematics of Moral and Legal Theory 227–265. Other examples of self-styled legal pragmatism include Michael C. Dorf and Charles F. Sabel, “A Constitution of Democratic Experimentalism,” 98 Columbia Law Review 267 (1998), and Daniel A. Farber, “Legal Pragmatism and the Constitution,” 72 Minnesota Law Review 1331 (1988). 28. Posner, Overcoming Law 243.

Index

Burger Court, 63–64, 99

Abortion, 1, 61–66, 89, 91, 93 Ackerman, Bruce, 176n4 Adjudication, 116–117, 132–133. See also Extraordinary adjudication; Ordinary adjudication Afﬁrmative action, 42, 68, 87, 89, 92 Agostini v. Felton, 107–109 Aguilar v. Felton, 108–109 Amar, Ahkil Reed, 144n22 Arguments, constitutional, 45–46, 134; text, 45, 46, 47, 49, 134; history, 45, 134; structure or theory, 45–46, 134; precedent, 46, 49, 134; value, 46, 47–55, 109, 134

Casey, Planned Parenthood v. See Planned Parenthood v. Casey City of Boerne v. Flores, 56, 69–74, 100, 131 Civil War Amendments, 130 Classiﬁcations, 66; race-based, 42, 78, 87, 92; age-based, 49; sex-based, 61, 79, 80, 87 Commerce Clause, 42, 98–101 Congress, 1, 2, 4, 5, 9, 38, 39, 55, 70–74, 98–101, 114–115, 129, 130–131 Constitutional remedies. See Remedies

Bakke, Board of Regents v. See Board of Regents v. Bakke Balancing tests. See Tests, balancing Ball, Grand Rapids v. See Grand Rapids v. Ball Bickel, Alexander, 52, 55, 57 Black, Charles, 21–22 Blackmun, Harry, 62–64 Blasi, Vincent, 63 Board of Regents v. Bakke, 87, 165n50 Bolling v. Sharpe, 140n7 Bork, Robert, 19–20, 119 Brown v. Board of Education (I), 8, 16, 46, 56–60, 62, 74, 100, 119, 128, 139n7 Brown v. Board of Education (II), 58–60 Burger, Warren, 63

Davis, Washington v. See Washington v. Davis Deference of courts, 9, 20, 35, 74, 81–82, 95–97, 135; to legislatures speciﬁcally, 9, 21, 33, 73, 88–89, 94, 129–130; to administrative ofﬁcials speciﬁcally, 21, 40– 41, 129 Democracy, republican theories of, 86–87, 96, 170n132; Supreme Court’s conception of, 95–97; pluralist theories of, 170n135 Democratic acceptability of judicial decisions, 4, 9, 60, 65, 73, 74, 127, 128, 133, 135; and reasonable disagreement, 51– 52, 53, 54–55, 63–64; swaying public opinion, 58; recent federalism decisions, 100–101

183

184

Index

Democratic ferment, 68–69 Disagreement, reasonable, 4–5, 8–11, 34– 36, 48, 51–52, 60, 63, 66, 72–73, 74, 81, 85, 86, 88–89, 91, 94, 96–97, 103, 107, 108–110, 120, 128, 135–136, 142n40 Doctrine, constitutional, 5–8, 12, 28–31, 37–39, 41–42, 44, 51, 76–101, 106, 136 Dorf, Michael, 147n75, 168n110 Due Process Clauses, 38, 48, 62, 78–79, 81, 87–89, 105–106; “some evidence” test and, 6, 32, 38; substantive rights under, 46, 61, 67–68, 91, 112; procedural rights under, 83 Dworkin, Ronald, 3–4, 11, 26–36, 37, 48, 55, 58, 68–69, 134–135, 147n77, 152n26. See also Forum-of-principle model Effects tests. See Tests, effects Eleventh Amendment, 100 Ely, John Hart, 61, 63, 88–89, 128 Employment Division v. Smith, 70–72 Equal Protection Clause, 4, 5, 15, 26, 32– 33, 39, 42, 46, 49, 57, 61, 63, 67, 78–79, 81, 85, 86, 87–89, 90, 92, 105–106, 120, 130; historical understanding of, 15, 46, 57, 139n7; norm binding the federal government, 16, 62, 103 Establishment Clause, 53–54, 86, 90–91, 104, 108; historical understanding of, 140n9 Extraordinary adjudication, 11, 43–44, 45– 75, 124, 134–135, 152n26 Federalism, 69–70, 72, 73, 97–101, 130 Fidelity, constitutional, 7–8, 12, 14, 43, 102, 104, 106, 111, 124–126, 130, 133, 136 First Amendment, 5, 15, 21, 29, 42, 81, 85, 88, 120, 130; historical understanding of, 15, 23. See also Establishment Clause; Free Exercise Clause; Free Speech Clause Forum-of-principle model, 3–4, 11, 26–36, 37, 43, 55, 59, 65–66, 68, 77, 83, 90, 102, 107, 134, 136; and democratic acceptability, 4, 66; and reasonable dis-

agreement, 4–5, 34–36, 81; and interpretation, 26–28; compared to practice, 28–34 Fourteenth Amendment, 70; historical understanding of, 57, 71, 139n7, 140n9; Section 5 of, 70–74, 100, 131 Fourth Amendment, 5, 31, 46, 49, 51, 59, 82–83 Free Exercise Clause, 70, 86, 91, 94, 130 Free Speech Clause, 22, 26, 42, 90, 92–94, 119, 130, 164n46; and defamation law, 5, 29–30, 51; and commercial speech, 5, 76; and expressive conduct, 79–80, 86 Fried, Charles, 161nn3–4, 178n22 Garcia v. San Antonio Metropolitan Transit Authority, 99 Gertz v. Robert Welch, Inc., 29–30, 33 Ginsburg, Ruth Bader, 106 Glucksberg, Washington v. See Washington v. Glucksberg Grand Rapids v. Ball, 108–109 Greenawalt, Kent, 164n45, 177n13, 178n29 Grey, Thomas, 176n4, 180n54 Griswold v. Connecticut, 27 Hart, H. L. A., 145n46 Hamilton, Alexander, 1 Hellman, Deborah, 158n127, 180n52 Holmes, Oliver Wendell, 93 Incommensurability, 84 Jaffe, Louis, 21 Judicial review, 1, 2, 9–11, 20–22, 40, 73– 74, 81–82, 127–132, 135 Kahn, Paul, 179n36 Kennedy, Anthony, 64, 71, 98 Klarman, Michael, 140n7, 156n72, 161n180 Legitimacy, 7–8, 9, 39, 65, 118–124; based on acceptance and reasonable justice, 8, 18–19, 112–113, 122, 124; conveyed by

Index Supreme Court, 22; based on consent, 120–121, 124; perceived, 123–124 Lemon v. Kurtzman, 53–54, 86, 90, 104, 108 Lessig, Lawrence, 14 Linkletter v. Walker, 59 Lochner v. New York, 61, 73, 98–100, 128 Lopez, United States v. See United States v. Lopez Mapp v. Ohio, 59 Marbury v. Madison, 1, 39, 74 Marshall, John, 4 Marshall, Thurgood, 59 Maryland v. Wilson, 82–83 Mathews v. Eldridge, 83 McConnell, Michael, 72, 139n7, 160n160 McCulloch v. Maryland, 4, 71 Michelman, Frank, 150n57, 154n29, 164n48 Minorities, discrete and insular, 88, 96, 167n98 Miranda v. Arizona, 6–7, 41, 42, 59, 141n34 M. L. B. v. S. L. J., 105–107 Monaghan, Henry, 172n2 Moral heroism, 8, 45, 74–75, 137 Morrison v. United States, 99 National League of Cities v. Usery, 99 New York Times v. Sullivan, 29–30, 33, 41 New York v. United States, 99 Nixon, Richard, 2, 63 O’Brien, United States v. See United States v. O’Brien O’Connor, Sandra Day, 64, 98, 108 Ofﬁcial immunity, 31–32, 59 Ordinary adjudication, 12, 43–44, 102– 110, 136, 152n26 Originalism, 3, 11, 13–25, 43, 58, 59, 65, 68, 77, 81, 83, 90, 104, 107, 134, 136; and nonoriginalist precedent, 3, 15–17, 20, 22–25, 37, 114, 119; and positivism,

185

17–19, 24; normative justiﬁcations for, 19–24 Planned Parenthood v. Casey, 56, 64–65, 91 Plessy v. Ferguson, 57, 75 Populism, constitutional, 12, 127–132 Positivism, 17–19 Posner, Richard, 119, 132–133, 181nn23– 26, 182nn27–28 Powell, Lewis, 87 Pragmatism, methodological, 12, 132–133 Precedents, respect for, 14, 16, 37, 43, 113– 115. See also Stare decisis Presidency, the, 1–2, 38, 55, 64, 114, 115, 130 Printz v. United States, 99 Prophylactic rules, 6–7, 41, 42, 141n34 Purpose tests. See Tests, purpose Rational basis review, 5, 32–33, 39, 40, 77, 78, 84, 88. See also Tests, non-suspectcontent Rawls, John, 48, 172n5 Raz, Joseph, 177n10, 180n49 Rehnquist, William, 67–68, 98 Rehnquist Court, 69 Religious Freedom Restoration Act, 71, 73 Remedies, 31–32, 58–60, 71 Right to die, 56, 66–69 Roe v. Wade, 56, 61–66, 67 Rule of law, 16, 19, 85, 122, 133 Sager, Lawrence, 6, 31, 32, 149n38, 151n20 Scalia, Antonin, 19–20, 68, 85, 98, 104, 116, 119 Schauer, Frederick, 145n46 Schelling, Thomas C., 172n4 Separation of powers, 33, 70, 97, 114–115, 130 Shapiro, David, 171nn137,138,140, 175n42 Smith, Employment Division v. See Employment Division v. Smith Souter, David, 64

186

Index

Sovereign immunity, 59, 100 Standards of review, 6, 32, 38, 39, 40–41 Stare decisis, 102–103, 104, 113. See also Precedents, respect for Stevens, John Paul, 64 Strauss, David, 41, 141n34, 176n4, 180n56 Strict scrutiny, 77, 80, 84, 86. See also Tests, suspect-content Sunstein, Cass, 95, 106–107 Supremacy Clause, 130

Thayer, James Bradley, 142n41, 170n132 Thomas, Clarence, 68, 98, 105–106, 116 Tribe, Laurence, 179n42 Truman, Harry, 2 Tushnet, Mark, 128, 129

Takings Clause, 87 Tenth Amendment, 99 Tests, 5, 11, 28, 38–39, 44, 51, 76–101, 104–105, 124, 133; balancing, 78, 80– 81, 82–85, 95; suspect-content, 78, 80– 81, 83–84, 85, 86, 87–89, 91–92, see also Strict scrutiny; non-suspect-content, 78, 81, 83–84, 87–89, 96–97, see also Rational basis review; forbidden-content, 78, 81, 85, 91, 100; effects, 79–81, 85–86, 91, 108; appropriate-deliberation, 79– 81, 86–87, 96; purpose, 79–81, 89–95, 96–97

Vacco v. Quill, 66–69 Voting rights, 21, 22, 49–50, 87, 103–104, 119

United States v. Lopez, 98–101 United States v. O’Brien, 79–80, 86 Unwritten constitution, 8, 12, 27, 111– 126, 136, 176n4

Waldron, Jeremy, 128, 181nn3,12 Warren, Earl, 57 Warren Court, 56, 59, 63, 70, 96 Washington v. Davis, 86, 90, 105–106 Washington v. Glucksberg, 66–69 Wellington, Harry, 154n38 Witters v. Washington Department of Services for the Blind, 108