Josh Blackman

Check out this fascinating new article from Tom Donnelly, titled A Popular Approach to Popular Constitutionalism: The First Amendment, Civic Education, and Constitutional Change. (H/T Legal Theory Blog). Here is the abstract:

Popular constitutionalists often ignore one of the most important features of popular constitutional culture — the constitutional life of the average citizen. Although these scholars have detailed the key role played by non-judicial actors in promoting non-Article V constitutional change, they have spent little time considering how changes to constitutional meaning become part of our popular constitutional fabric. This Article fills a gap in the literature by examining how popular constitutional meaning is shaped “on the ground,” once the most recent controversy fades and constitutional life returns to normal. To that end, it focuses on a pathway that has been largely ignored by legal scholars — civic education. In particular, this Article scrutinizes the free speech stories presented in our leading high school textbooks. In the end, these popular constitutional narratives are not particularly popular — and have become even less so in recent decades. Furthermore, the patterns of change in these accounts suggest that transformations in our popular constitutional narratives tend to follow periods where key public officials and broad-based social movements promote similar changes to constitutional meaning.

Tom Donnelly, a Climenko Fellow at Harvard Law School, has published some great scholarship about the intersection of popular constitutionalism and civic education. I find his work fascinating. Tom has graciously accepted an invitation from the Harlan Institute to develop some content for the curriculum of FantasySCOTUS. I can’t wait for the students to see his material!

This piece profiles Eugene Volokh, Doug Berman, Paul Caron, and some of the other top Praw Blawgers.

This article, titled The Countermajoritarian Classics (and an Upside Down Theory of Judicial Review), says no, and other famous precedents that are pereceived to be countermajoritarian were in fact in sync with the majority sentiments of the time. Here is the abstract:

Brown v. Board of Education. Engel v. Vitale. Miranda v. Arizona. Furman v. Georgia. Roe v. Wade. Within the academy, these countermajoritarian classics stand as a testament to the Supreme Court’s willingness to thwart the will of a national majority in the name of minority rights. Yet a historical examination of these cases reveals a dramatically different narrative, illustrating just how majoritarian even ostensibly countermajoritarian cases can be. Indeed, in several of these cases, the Court’s ruling was so majoritarian, so consistent with national public opinion, that it only looked countermajoritarian because the seemingly majoritarian stance of the democratically elected branches wasn’t. Considered in full historical context, the Court’s position was actually a better reflection of prevailing sentiment than that of the legislative and executive branches. The implications are striking. While most theories of judicial review see the Court’s countermajoritarian capacity as its unique institutional attribute, the classics show that sometimes just the opposite is true. Sometimes it is the democratically elected branches that are out of sync with majority will, and the Supreme Court that bridges the gap, turning the traditional understanding of the Court’s role on its head. The result is a distinctly majoritarian, upside-down theory of judicial review, one that recognizes the Court’s ability to be more majoritarian than the majoritarian branches, rather than less. Democracy never looked so undemocratic – nor, one could argue, has it ever worked so well.

From the article:

Indeed, several of the cases allow for an even stronger claim. In Brown and Roe (and arguably others as well),15 the Supreme Court’s ruling had so much majoritarian support that it only looked countermajoritarian because the presumably majoritarian results of the legislative and executive branches weren’t. In these cases, the Court rejected the results of the democratic process, but there is little reason to think that the democratic process was getting democracy right. When viewed in full historical context, the Court’s position was actually a better reflection of prevailing sentiment than that of the democratically elected, representative branches.

And what conclusion does the author draw from this observation:

For constitutional theory, this suggests the need to reconsider the current conceptualization

of the countermajoritarian difficulty. And for constitutional doctrine, it presents a significant challenge to the Supreme Court’s reliance on legislation as “the clearest and most reliable objective evidence of contemporary values.”17 Legislation is not necessarily the most reliable evidence of contemporary values. Sometimes it is not reliable at all. For constitutional theory,this suggests the need to reconsider the current conceptualization of the countermajoritarian difficulty. And for constitutionaldoctrine, it presents a significant challenge to the Supreme Court’sreliance on legislation as “the clearest and most reliable objectiveevidence of contemporary values.”17 Legislation is not necessarilythe most reliable evidence of contemporary values. Sometimes itis not reliable at all.

…
Instead of a countermajoritarian Court checking the majoritarian branches, cases like Brown and Roe showcase a majoritarian Court checking not-so-majoritarian branches, enforcing prevailing norms when the representative branches don’t. Democracy never looked so undemocratic—nor, one could argue, has it worked so well.

This is a very Barry Friedman-esque “Will of the People” style article (and no surprise that Barry Friedman is thanked in the acknowledgement section).

So the courts, and not the elected branches, may be the most “the clearest and most reliable objective evidence of contemporary values” in some cases? I need to ponder that one for a bit but it sounds like somewhat of a blank check for the Courts to do whatever they want.

While Friedman’s work seems to be a descriptive account of what the Courts do, this article seems to justify the Court’s actions to rule in what some may view as a countermajoritarian manner based on what the court, and not society, sees as in fact the majority sentiments of the country. I wonder which entity, the elected branches or the unelected branches, are in the best position to make this determination.

Update: After some further reflection, I ponder how much credence we can give to the Courts to sense what the majority sentiments are in light of their dismal failure at discerning a “national consensus” in the 8th amendment context (see here, here, and here).

Ilya Shapiro and I discuss the fallacy of the “national consensus”in Pandora’s Box, pp. 57-62 beyond the context of the 8th Amendment.

The fallacy of recognizing national consensuses is highlighted by the aftermath of Kennedy v. Louisiana. If the Supreme Court could not properly analyze the extent of the consensus among state laws governing the sentencing of child rapists, an area that any first-year law student could understand with the proper Lexis search, how can we expect judges to understand consensuses on nebulous and polarizing social issues—on which public opinion ebbs and flows—such as the right to health care, the right to education, or reproductive rights?

Balkin himself acknowledges that “[i]n 1973, when Roe was decided, the right to abortion was not a privilege or immunity of national citizenship” because only four states had adopted the rules Roe laid down. He counters, however, that “most of the public now regards a basic abortion right as among the guarantees of citizenship” and, in the long run, “it should eventually be protected under the declaratory model of the Privileges or Immunities Clause.” But how is the Court to determine society’s views to a point that gives them constitutional authority?—particularly in light of the complications in as comparatively simple a task as surveying state laws regarding capital punishment for child rapists. Kennedy v. Louisiana thus belies Balkin’s attempt to portray the right to abortion as a privilege or immunity of national citizenship by virtue of a national consensus.

Moreover, what constitutes a national consensus? Half the population? Two thirds? Ninety percent? To paraphrase Justice Brennan’s quip, why not whatever five duly confirmed justices think? Should the Court commission its own Gallup Poll? What standard should the consensus be based on? How long should it exist? These are inherently subjective determinations, not reducible to judicially or legislatively manageable standards.

Finally, and perhaps most significantly from a constitutional perspective, for a court to determine that simply because “most of the public” considers some right to be among the privileges or immunities of citizenship—not that the public thinks in terms of “privileges or immunities” or any other constitutional terms of art—ignores the rights of minorities. That is, the Constitution is countermajoritarian in many ways—as would be expected from a charter that establishes a republic, not a pure democracy. The Constitution provides for the indirect election of the president through an electoral college and, before the Seventeenth Amendment, for state legislatures to select senators. Impeachment requires super-majorities, as does the constitutional amendment process—which is why Balkin, Ackerman, and others propose constructive amendment theories. All these provisions reflect a fear of oppressive majority rule and aim to prevent factions from seeking economic advantage and overwhelming our system of liberty.

Finally, why limit this analysis to consensus among states? Why not consider consensuses among nations? For example, Justice Kennedy has looked to foreign and international law to establish norms with respect to executing minors—and thus confirm his understanding of the Eighth Amendment. Why then not look to European conventions and treaties to recognize consensuses on rights among modern, progressive peoples to confirm our understanding of the Fourteenth Amendment? These are such divisive and controversial issues that, ultimately, a consensus model would “just [be] giving effect to the [Court’s] own preferences.”

From Pew Research:

Asked to name the current chief justice of the Supreme Court, and given four possible names, nearly one-in-ten Americans (8%) choose Thurgood Marshall, despite the fact that Justice Marshall left the Supreme Court roughly 20 years ago, and passed away in 1993. In fact, very few Americans can name the current chief justice in a Pew Research news quiz; just 28% were able to correctly identify John Roberts. Another 6% thought the recently retired Justice John Paul Stevens was chief justice, while 4% named Sen. Harry Reid. A majority (53%) admitted that they did not know the answer. Americans have not always been so unknowledgeable about the Supreme Court. In November 1986, 43% correctly identified William Rehnquist as the chief justice, though 29% chose his predecessor, Warren Burger.

I will point out the Pew Research fail here. The proper title is “Chief Justice of the United States,” not “Chief Justice of the Supreme Court.”

Tomorrow in class we will be discussing Erie Railroad v. Tompkins and I’ve spent some time considering this case. I had not read this case since I was a 1L. When I studied it as a 1L, I remember spending so much time trying to grasp my mind around the holding of the case, the overruling of Swift v. Tyson, and what laws federal courts should apply when sitting in diversity. I totally missed the context in which the case was decided.

The opinion was issued in 1938, near the peak of the FDR’s fight with the Court. This opinion, in large measure, was a rejection of the legal formalism that courts had employed for nearly a century, and represented the adoption of Holmes’ legal realism. Commensurate with the rejection of the “general” common law was also a repudiation of the idea that some natural/common/whatever you want to call it law existed. This broader jurisprudential point is really missed when studying Erie in Civ Pro.

As 1Ls we study cases in silos by topic, such as torts, constitutional law, civil procedure, criminal law. There is very little spillover from one class to the next. But when one views all of the cases from a certain era across the spectrum, the law really comes alive. Viewing Erie through a jurisprudential fight over formalism and realism makes it so much more fascinating.

What about a class that teaches cases by historical era rather than by subject. This would be a fun 3L survey class. After a student has learned all the substantive law, they can relearn it as a whole. This is how I visualize the law, as I always try to connect and interrelate disparate doctrines.

For example, for the New Deal I would lump in Erie with Carolene Products, Schechter Poultry, Wickard, and a few other pre and post 1936 cases to highlight the shift in the Court’s jurisprudence, as well as the new interaction between the states and federal government.

For the Roberts Court, Iqbal and Citizens United could be taught together. They are usually studied in different classes–Civil Procedure and Constitutional law. But these cases, when pieced together represent the aggrandizement of power in powerful larger groups, at the cost of individuals (I do not necessarily buy this narrative, but it makes for an interesting lesson plan).

Just a thought.

I love rational self interest.

Check it out here. Today was the first day of class. I am really looking forward to an awesome semester!

Will Baude has posted an intriguing article to SSRN titled Signing Unconstitutional Laws (H/T Legal Theory Blog). Here is the abstract:

It has become fairly common for Presidents to sign laws that they think are (at least partly) unconstitutional. Some scholars argue that this practice is itself unconstitutional. Others defend it, but on pragmatic grounds, as if one cannot afford to be a constitutional formalist in today’s government. Both sides are wrong. Formalism provides a principled justification for signing unconstitutional laws and a legal test for when the President may do so. We are not forced to choose between a President who is obligated to veto crucial legislation and one who places expediency over constitutional principle.

In a wide range of cases, there is nothing wrong with signing unconstitutional laws. Indeed, it is required. First, as a matter of constitutional law, the President’s duties are more complicated than have been assumed. The President has no categorical duty to veto every unconstitutional law, but he must take seriously the constitutional risks created by signing one. Second, the President’s broad duty to enforce the Constitution frequently requires him to help pass legislation—especially in the national-security and individual-rights contexts.

The President’s duty to sign unconstitutional laws arises when these circumstances intersect. The President is faced with a partly unconstitutional law that also contains provisions that are unconstitutionally required. At that point, nothing flatly forbids him from signing the law, and he must consider the tradeoffs in terms of constitutional consequences. Sometimes those tradeoffs will lead him to believe that he must sign the bill, even though it is unconstitutional. Several Presidents in recent memory—include Richard Nixon and George W. Bush—have been faced with such circumstances, and this Essay argues that they were right to sign the unconstitutional bills.

I have always wondered about the duty or responsibility of the Executive and Legislative branches to consider the constitutionality of laws they enforce or enact. I suppose in the cases Baude identifies, not only does the President not have the duty to consider the constitutionality, but has an affirmative duty to disregard it! The article also builds on Nick Rosenkranz’s Subjects of the Constitution, a really cool article. Interesting food for thought.