But what explains his opinions in every abortion-related case that has come to the court since Scalia became a justice in 1986 is not his Catholicism but his “originalist” interpretation of the US Constitution, the author of a new biography of Scalia said Monday.

Speaking at an “On the Issues” forum at Marquette Law School, Joan Biskupic told host Mike Gousha that Scalia has “parallel passions,” Catholicism and the law.

”You just cannot forget that he’s so darned conservative on the Constitution, independent of his Catholicism,“ Biskupic said. Scalia simply does not see anything in the text of the Constitution that supports giving a woman a right to have an abortion.

Biskupic said she found in researching Scalia’s life that his views on the Constitution have been consistent for all his adult life. People she talked to from each stage of his life described him as an originalist.

Biskupic described Scalia as a “many-layered” person.

She said he is charming, gracious, tough, bullying, arrogant, a lot of fun, and prickly, at different times. She quoted Justice Ruth Bader Ginsburg saying, “Sometimes I’d like to strangle Nino, but I love him.” Ginsburg and Scalia are philosophical opposites on many legal matters, but are close personal friends. On the other hand, Biskupic said, as much as Scalia and Justice Clarence Thomas are close on the court, they are not close socially because, in the words of Thomas, Thomas likes to go home and watch college football while Scalia likes to go home and listen to opera.

Biskupic interviewed Scalia on the record a dozen times for her book, even after he initially said he wouldn’t agree to talk to her. He changed his mind after she saw him at a social event and began describing what she had found during visits to Trenton, N.J., where Scalia was born.

Biskupic, who covers the Supreme Court for USA Today, said that, at 73, Scalia is at the apex of his career because his influence has grown and he can attract support from other justices, including Chief Justice John Roberts and Justice Samuel Alito Jr., to put together majorities in some cases. In some prior periods, when his views were in a clear minority, Scalia found being on the court so frustrating that he considered resigning, she said.

Scalia is “an amazing stylist” when it comes to his written opinions, she said, which is one reason his opinions are so widely read. “He’s so clever, so engaging in his writing,” she said.

Biskupic noted a little-known Milwaukee touch to Scalia’s life – he spent a summer as a clerk at Foley and Lardner between his second and third years of Harvard Law School. But he did not want to come back to Milwaukee to practice after he graduated.

Biskupic’s book, “American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia,” was published by Sarah Crichton Books. Biskupic received a bachelor’s degree from Marquette and covered the Supreme Court for the Washington Post before joining USA Today. She previously authored a biography of Justice Sandra Day O’Connor.

Although Arthur is frequently seen as Millard Fillmore primary competition for the title of “Most Obscure President in U.S. History,” the circumstances of his birth have raised questions eeriely similar to those asked about President Barack Obama by the birthers. 

Before 1880, Chester Arthur was a minor New York City politician who was a protégé of Sen. Roscoe Conkling of the Empire State.  Although he was a prominent lawyer, he had never run for, let alone held, elective office at any level.  Nevertheless, at the 1880 Republican Presidential Convention in Chicago, he was added to the Republican national ticket as the running mate of presidential candidate James Garfield.  Arthur was selected to balance the slate geographically — Garfield was from Ohio, part of the Midwest in an era when regions mattered — and to placate Sen. Conkling, a presidential aspirant himself and the leader of the Stalwart faction of the Republican Party.

In 1871, President Grant, with Conkling’s blessings, had appointed Arthur to the lucrative position as Collector of the Port of New York.  However, seven years later, he had been removed from that position by President Rutherford B. Hayes, as part of a presidential effort to crack down on the spoils system.  Although there was no evidence of real corruption at the custom house while Arthur was Collector, it was also clear that Arthur had no objections to padding the Collector’s payroll with loyal Republicans. Once elected, Arthur remained loyal to Conkling and the spoils system, and he and Garfield clashed repeatedly on questions of federal appointments, which led Garfield to ban Arthur from the White House.

However, on July 2, 1881, Garfield was assassinated by Charles Guiteau, a deranged supporter of Conkling, who, after shooting the president, shouted, “I am a Stalwart of the Stalwarts . . . Arthur is president now!”  Guiteau’s two shots actually did not prove to be fatal, and Garfield lived until September 19, when he was finally done in by a combination of infection and poor medical care. 

Although he was a product of, and, at least initially, a supporter of the spoils system, as president Arthur actually turned out to be fairly progressive and a strong supporter of civil service reform.  In 1883, he signed the Pendleton Act, which established the first Civil Service Commission.  Although he sought his party’s presidential nomination for 1885, he was not renominated by the Republican Party.  Even so, he left office widely respected by members of both parties.  Even Mark Twain begrudgingly acknowledged that “it would be hard indeed to better President Arthur’s administration.”

Questions of Arthur’s eligibility for the nation’s highest office surfaced during the 1880 campaign.  Arthur was the son of an Irishman who emigrated first to Canada and the then to the United States, and who finally became a naturalized United States citizen in 1843, fifteen years after his son Arthur’s birth in 1829.  Arthur’s mother was a United States citizen born in Vermont but whose family emigrated to Canada where she met and married her husband.  By the time of Arthur’s birth, his parents had moved back to Vermont. 

The controversy over Arthur’s citizenship status centers around the place of Arthur’s actual birth.  By one account he was born in his family’s home in Franklin County, Vermont.  If this was true, then he was clearly a natural born citizen.  On the other hand, the competing account has it that he was born during his pregnant mother’s visit to her family’s home in Canada. 

If the latter story is true, then Arthur was technically foreign-born, and in 1829, citizenship in such cases passed to the child only if the father was a United States citizen, and, of course, at this point Arthur’s father was still a citizen of the British Empire.

The principal advocate of the “born in Canada” theory was Arthur’s fellow New York lawyer Arthur P. Hinman who was hired in 1880 by the Democratic Party to investigate Arthur’s ancestry.  Hinman initially undermined his owned credibility by embracing an argument that Arthur was himself born in Ireland and didn’t come to the United States until he was fourteen years old.  That story was patently false and easily disproven. 

However, Hinman later discovered acquaintances of the Arthur family in Canada who told him the story of Arthur’s accidental Canadian birth.  Convinced that he now had proof of Arthur’s foreign citizenship, he published his findings in 1884 in a short book entitled How a Subject of the British Empire Became President of the United States.  Hinman’s book appeared near the end of Arthur’s presidency, and no official action was ever taken on the basic of his alleged evidence.

Arthur himself always insisted that he was born in Vermont, but he may not have known the place of his birth. By the time he was six years old, his family had left Vermont for New York, and he never lived in the Green Mountain State again.  It is possible that his parents considered the circumstances of his Canadian birth to be personally embarrassing and never shared the details of the story with him.

An investigation by the Boston Globe earlier this year — no doubt inspired by the Birther controversy — confirmed that there are no official records regarding Arthur’s birth in either Vermont or in Canada.  See Boston Globe, “Chester Arthur Rumor Still Lingers in Vermont,” August 17, 2009.

We will probably never know if Arthur was really eligible to be president of the United States in 1881.

The difficulty with strong free exercise protection is not simply how to cabin the freedom (by saying that the state may restrict it only if necessary to serve a compelling state interest) but how to define what constitutes a religious claim and to assess the strength of the religious claim asserted. The problem is that the notion of religious freedom cuts against the evaluation of the strength or reasonableness of religious claims and that leaves us with a potential universe of claims that is limited only by Revelation or imagination. That is no limit at all.

This is, I think, one of the reasons that the United States Supreme Court  has not afforded generous protection to free exercise, holding that neutral laws of general applicability not aimed at suppressing religious exercise are not subject to heightened scrutiny. But Wisconsin interprets the protection of religious belief and freedom of conscience included in its Constitution differently.

In an opinion written by our own Janine Geske, it  has chosen to afford strict scrutiny to the substantial burdens on the free exercise of religion.

State law prohibits charges of child neglect based solely on healing by prayer. But it provides no such exemption for more serious charges such as reckless homicide. There are, I think, two principal questions.

First, must the state permit parents to heal by prayer? My own view is that the state has a compelling interest in protecting life and that interest can justify interfering in parental prerogatives.

Second, does a more robust protection for religious free exercise require any – or a broader – exemption from criminal prosecution? It is, after all, one thing to say that one has no right to deny medical treatment for one’s child and another to say that, if one does so, one should be prosecuted. Not everything that can be prohibited (or prevented) ought to be criminalized.

Perhaps Wisconsin has it right. Maybe the state’s interest in prosecuting such conduct does not become compelling until it inflicts the more substantial injuries that support a charge other than child abuse, such as reckless homicide or the infliction of substantial bodily injury.

Cross posted at Shark and Shepherd.

Here’s the abstract:

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that the Federal Constitution provides a cause of action in damages for violations of the Fourth Amendment by individual federal officers. The so-called “Bivens” cause of action — initially extended to other constitutional provisions and then sharply curtailed over the past two decades — has been a subject of controversy among academics and judges since its creation. The most common criticism of Bivens — one that has been repeated in different venues for thirty years — is that the Court’s individual liability model, in which the offending officer is personally liable in damages, should be abandoned in favor of a governmental liability model akin to respondeat superior liability.

Commentators base their criticism of the individual liability model on two empirical assumptions: (1) Bivens suits are almost never successful; and (2) the defense of qualified immunity, available only to individuals, is a nearly insuperable barrier to plaintiffs’ prevailing in Bivens claims. On this account, a move to the governmental liability model will ensure adequate compensation and deterrence while removing a substantial barrier to plaintiffs’ success. These empirical claims about the general failure of Bivens suits and the explanation for that failure have never been tested. This Article corrects that oversight by offering the results of the first detailed empirical study of the determinants and outcomes of Bivens litigation. Based on data collected from cases filed in five district courts from 2001-2003, this Article concludes that the truths that scholars and judges have taken as a given are unsupported. Bivens claims succeed at a much higher rate than previously thought, especially compared to other civil rights litigation, and the defense of qualified immunity rarely plays a role in the outcome of Bivens litigation. These data call into question the given wisdom about the characteristics of Bivens litigation, and undermine the policy proposals that have occupied the field in Bivens scholarship.

So why do I bring this interesting article to the labor and employment law readers of this blog?  In an article I published last year, Whither the Pickering Rights of Federal Employees?, I pointed out that as a result of the Supreme Court’s 1983 decision in Bush v. Lucas, federal employees are not permitted to bring Bivens constitutional tort claims directly to federal court to vindicate their First Amendment rights to free speech under Pickering v. Bd. of Education. Instead, the Bush Court found that Congress had established an effective, alternative statutory scheme for vindication of such claims under the Civil Service Reform Act of 1978.

Because my empirical analysis of all First Amendment Pickering cases involving federal employees found that there had not been one successful employee claim of this type under that administrative scheme, I argued that Bush should be revisited and overturned, and a Bivens claim implied to vindicate the First Amendment interests of federal employees.

Some had argued that by going back to Bivens that these federal employees would face insurmountable odds because of the difficulties associated with winning these claims. Reinert’s new study demonstrates, however, that federal employees given a Bivens claim will likely find a more meaningful remedy for their First Amendment claims in federal trial courts.

Now, I can only hope that more people will pay attention to this study and see its importance for federal employees’ constitutional rights in the workplace.

Ed’s post plays off the fact that the United States Constitution, unlike the Wisconsin Constitution, creates a government of enumerated – and not plenary – powers. (This is one of the reasons that the state constitution looks rather different than the federal charter.) Ed sees the negative spaces as areas of opporunity, but emphasizes filling those “empty spaces” where the Constitution has not created federal authority with … federal authority. The negative space is for government – at least where exigency is thought to be served by the expansion of state authority.

It will surprise precisely no one that I see it differently. In fact, to continue our soccer metaphor, improperly invading them (as the image at the top of this post illustrates) leaves us offside.

I love Escher prints and one of the reasons is that show us how what artists refer to as “negative space” – the interstices between displayed objects (or what seem to be interstices) – can be put to use; can be turned into something.

But isn’t it usually something else? Birds rather than fish. The opportunity presented by negative spaces is that they allow the creation of something else. In constitutional terms, they prevent breathing room for the creativity of the states and civil society. That is why textualism – seen as an attempt to remain faithful to the original solution in a contemporary context – is hardly as discredited as Ed suggests.

But if the Catholic notion of subsidiarity tells us something (and I hope it does since I have two papers in progress on the idea), it is that the “negative spaces” left for (more properly belonging to) individuals and mediating institutions are not open areas waiting to be occupied. They are places for the exercise of and respect for human subjectivity.

Of course, exigencies will always create pressure for action, notwithstanding the old constitutional debate about whether emergency can create power. Dissastification with the Contitution as an obstacle to power – expressed in different ways by the left and the right – has a long history. Woodrow Wilson was an advocate of a living Constitution, writing that “”Government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin.” The Constitution could, he believed, mean “one thing in one age, another in another.”

This is where textualism and subsidiarity prove to be something other than two sides of the same federalist coin. Textualism seeks legal sanction. What have we agreed the law is? If the constitution is to mean something else for a new age, there must be political assent to that new meaning. 

Subsidiarity makes a claim about the nature of human beings and the proper form of social organization. What should the law be? Limited government does not reflect an archaic social understanding but an enduring truth about human beings.

Both suggest that negative spaces are, as Ed’s soccer and jazz metaphors suggest, places of creativity. But, as in an Escher print, that creativity is not served by filling them in.

Article II, Section 1, provides, in part:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

Unfortunately, neither the Constitution itself nor the documentary record pertaining to its drafting and ratification in the 1780’s provides any additional insight into what the framers specifically meant by the phrase “natural born citizen.”

Because of the absence of specific standards, Congress has been forced to define what the phrase means, which it has done in a series of citizenship and immigration acts dating from 1790.

Certain factors definitely make one a “natural born citizen.” It has always been accepted that any white person, and since 1870, any person of any race, actually born in the United States is eligible to be elected president once they reach the age of 35 and have been 14 years a resident. (Male gender was never a prerequisite, even when women were denied the right to vote. That is how Belva Lockwood could run for president in 1884 as the candidate of the National Equal Rights Party.)

It has also been accepted from the beginning that a person born outside the United States with two citizen parents is a natural born citizen. Although no president has ever fallen into this category, a number of actual and potential presidential candidates have, including turn-of-the-last-century Supreme Court Justice David Brewer (born in the Ottoman Empire), nineteenth-century Republican politician John S. Wise (Brazil); Michigan Governor George Romney (Mexico), and 2008 Republican nominee John McCain (Canal Zone).

What is less clear is (1) what constitutes the United States for “born in” purposes, i.e., which territories, if any, are included, and (2) what is the citizenship status of an individual born outside the United States with only a single citizen parent. Congress has answered these questions differently in different eras.

Had Barack Obama actually been born in Kenya, as some Birthers claim, he would have fallen into the category of having been born outside the United States with one citizen parent and one alien parent. (Of course, he wasn’t born in Kenya; he was born in Hawaii, after it had become the 50th state.)
Originally, citizenship in such situations passed through the father. If the father of a foreign-born individual was a United States citizen, then the individual was a “natural born Citizen” regardless of the nationality of his or her mother. To become a U.S. citizen, a foreign-born or “outside the U.S.-born” individual with a citizen mother and an alien father had to go through the naturalization process and was not eligible to run for president of the United States.

This was a feature of the original American naturalization statute of 1790, and was a provision that was retained throughout the nineteenth century and through the first third of the twentieth. In fact, the United States citizenship of the mother could not be passed on to a foreign-born child until Congress changed the naturalization laws in 1934.

At the time of Barack Obama’s birth in 1962, 8 U.S.C.A. § 1401 provided that

The following shall be nationals and citizens of the United States at birth:
* * *
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years . . .

This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date . . . .

Were Obama actually born outside of the United States, then it would appear that under this statute he would not be a “citizen of the United States at birth.” His father was unquestionably a citizen of Kenya, then part of the British Empire, and his eighteen-year-old mother could not have lived in the United States for a minimum of five years after obtaining the age of fourteen. (She could not have done this because she was only 18 when he was born on August 4, 1961. She did not meet the five years “after attaining the age of fourteen years” requirement until the following November 29, when Obama was almost four months old.) Consequently, under this counterfactual scenario, Barack Obama would appear to be ineligible to be president.

However, on November 14, 1986, when Obama was twenty-five years old, Congress enacted an amendment to the above statute, which substituted “five years, at least two” for “ten years, at least five” in the language describing the length of time the citizen parent had to live in the United States after age fourteen. This new standard, unlike the one adopted in 1952 and in effect in 1962, was met by Obama’s mother when she turned 16, more than two years before the birth of her son.

Moreover, according to it terms, this amendment, like the section itself, applied retroactively to anyone born after December 24, 1952, which, of course, included Barack Obama.

Whether or not Congress has the power to reclassify someone as a “United States citizen at birth” after twenty-five years of being classified as not “a United States citizen at birth” is an interesting constitutional question. Could Congress, for example, make the Austrian-born Arnold Schwarzenegger, who had no U.S. citizen parents, eligible to run for president by adopting a statute that defined “natural born citizen” as someone born after gestating in his biological mother’s womb? Presumably not, but why wouldn’t that logic apply to the 1986 amendment? Is it possible that a person such as our hypothetical foreign-born Obama who had a too-young citizen mother could be a citizen of the United States at birth (under the revised statute) but nevertheless not eligible under Article II, Section I?

Fortunately, we do not have to address the question of the retroactive application of the 1986 amendment and its relation to Article II, Section I, because President Obama really was born in the United States.

However, the birthers have provided us with a very interesting civics lesson regarding presidential eligibility, and now most of us know much more about Article II, Section I than we ever did before.

Some people dislike jazz.  To them, the melody of the song gets lost in a blizzard of noise.  Jazz aficionados hear something different.  They are listening to what the musicians do in the spaces in between the notes of the melody.

The United States Constitution creates a positive space for government.  The federal government is delegated specific powers.  The governments of the states retain those powers not delegated to the federal government or otherwise retained by the people.

However, the United States Constitution also creates negative space for government.  What happens when a changing world, changing social values, or new technologies cause the public to demand an expansion of government into spaces that fall in neither the delegated powers of the federal government nor the traditional realm of the states?  Typically in our nation’s history, this has occurred in response to a crisis that implicates a national economic interest or a national security interest, making reliance on the individual state governments for solutions inadequate.  Examples would include the Great Depression and the response to the September 11 attacks.  In these situations, the federal government rushes in to fill the negative space, despite the fact that a strict reading of the Constitution does not provide for the federal authority to do so.

In the controversy surrounding the chartering of the Bank of the United States, shortly after the Constitution was ratified, two of the Framers grappled with this dilemma.  The fact that they came to different conclusions continues to influence the debate over federal power today.   James Madison and Alexander Hamilton agreed that the delegated powers of the federal government should be interpreted broadly, but they differed in their view of whether the Constitution left any negative space for the federal government to expand beyond those powers expressly delegated to it.

Madison felt that the outer limits of federal government power were set by the understanding of the people at the time that the Constitution was ratified.  Those boundaries could not be expanded short of a constitutional amendment.  In contrast, Hamilton seems to have believed that these limits could be loosened or lifted through precipitous action by the federal government, explained and defended to the public, so long as the public demonstrated their approval of the new boundaries.  Hamilton’s conception of sovereignty allowed for the possibility that later generations of Americans might approve of a stronger national government than was originally envisioned, if they were persuaded that the extra authority was merited.

 Hamilton’s proposal to charter a national bank, and his adoption of the principle that even a federal government limited in its ends could employ tremendous discretion to achieve those ends, flowed naturally from his view that the Constitution left the federal government room to grow when acting in response to a truly national need.  Madison believed that the proposed bank was inconsistent with the original assumptions concerning the proper ends for which the newly created federal power would be used.  Madison thought it had been settled at the time of ratification that the federal government lacked the power to charter a national bank.  As a result, Madison came to align himself with the Ant-Federalists in opposition to the bank, and he would eventually articulate the States Rights political philosophy that continues to resonate with many Americans. 

In our constitutional system, the Supreme Court serves as the ultimate arbiter of whether an attempt by the federal government to expand into negative space is permitted.  In his recent book, Packing the Court, historian James MacGregor Burns paints a picture of a Supreme Court that has exercised this role in a reactionary fashion.  That the Court is able to play this role at all is solely the result of the bedrock doctrine of judicial review laid down in Marbury v. Madison.  Burns’ thesis is that this seminal case was wrongly decided.

Burns’ view of American history is sympathetic towards presidents who engage in the type of “transforming leadership” necessary to adapt the nation to new challenges and changing environments.  He criticizes the Supreme Court over the course of our nation’s history for often frustrating presidential attempts at transformative leadership through the illegitimate (in his eyes) vehicle of judicial review.  His book is an indictment of a Supreme Court that serves to further reactionary elements in our society rather than to respond to popular movements for reform (with the exception of the Warren Court, which Burns praises – inconsistently – for exercising judicial review in order to expand the scope of individual rights).

Although Burns views history through the traditional dichotomy of liberalism versus conservatism, we should recognize that the search for negative space is not an ideological issue.  The doctrine of the unitary executive, espoused by many of the leading lawyers in the Bush Administration as the justification for broad executive branch power after September 11, and still embraced by many leading conservative thinkers, is nothing if not a declaration that the Constitution leaves a great deal of negative space for the President to operate in in matters of national security.  In its cases dealing with the Guantanamo Bay detainees thus far, the Supreme Court has not foreclosed the possible existence of an expansive executive power so much as insisted that any unprecedented movement of executive power into spaces left open by the Constitution must come with the assent of congress.

Burns is correct that the Supreme Court has often used judicial review to deny attempts by the federal government to expand beyond the bounds that Madison thought were settled in 1789.  Early in the nineteenth century, Chief Justice John Marshall interpreted the federal sphere quite broadly.  However, later in the Court’s history the justices would rely upon doctrines of federalism to promote a political philosophy where state governments received first claim on the ability to expand into any negative spaces.  As our national economy grew larger and more intertwined, and as the role of the United States as a global superpower required a stronger federal hand in dealing with foreign nations, it became more difficult to argue that state governments could successfully occupy all of these open spaces.  The Great Depression, and two Wolrd Wars, forced the Court to recognize this reality.

In more recent years, the Supreme Court has relied upon theories of interpretation, most notably textualism, as the vehicle for denying the federal government the ability to expand its role beyond delegated bounds.  These theories have the benefit of applying without regard to whether state governments are capable of meeting the same demands that the federal government is seeking to satisfy, and therefore these theories have been more successful than federalism as a means of policing the expansion of the federal sphere in the modern economy.  However, the subjective way in which interpretive theory is inevitably applied has become apparent to all observers of the Court, with the consequence that the Supreme Court’s use of textualism has only served to increase public awareness of the Court’s growing institutional power and also of the ideology of its members.  Persons across the ideological spectrum share a discomfort with these developments.

There are early hints that persons seeking to deny the federal government the negative space in which to grow will next turn to moral philosophy, such as the theory of subsidiarity in the Catholic faith, as a vehicle for policing the federal government.  Whether or not these early efforts will mature into a coherent mode of constitutional interpretation remains to be seen.  If this effort fails, there will doubtless be other arguments advanced by those who seek to deny the existence of negative space in our Constitution.

What is undeniable is that the Constitution of 1789 was not written for a United States that had a complex and integrated national economy and that was a global superpower.  As the President and the Congress seek to navigate in such a world (and indeed, as the general public demands that they do so), some people will see only chaos and a lack of legitimate authority.  Other people will see an attempt to create something out of open spaces.

To call this clause of the Constitution “overlooked” is an understatement.  The authors of the Federalist Papers spent little or no time discussing the meaning of this clause.  The Supreme Court, when asked to interpret this clause, has generally admitted that it doesn’t have the slightest idea what it means—with the consequence that the Court has rendered the clause irrelevant and left it devoid of meaning.  This is a shame because, properly understood, I believe that this clause is one of the most important in the Constitution.

The federal government guarantees every state a Republican form of government.  What does the word “republican” mean?   It certainly does not refer to a specific political party.  Political parties did not even exist in 1789.

Today’s school children are generally taught that the clause is intended to guarantee that state governments use the mechanics of representative democracy over the mechanics of direct democracy.  This interpretation is incorrect.  While the Framers often wrote of the benefits of a political system whereby voters elected representatives who would make important decisions on their behalf, especially in instances where the geographic territory to be governed was large, the Framers never expressed the opinion that the direct exercise of democracy by the people should be prohibited.

Indeed, this incorrect interpretation of the clause is dangerous because it has led some observers to question the constitutionality of state-wide voter initiatives altogether, such as the ones that regularly go before the voters in California.  These types of initiatives may be unwise as a means of using direct democracy to determine the policies of state government.  But the use of state-wide initiatives of this type is certainly constitutional.

So if the “Republican form of government” clause does not prohibit the use of direct democracy as a means of state government, what is its purpose?  Simply stated, the clause prohibits the people of any state in the Union from amending their state constitution in order to adopt a monarchy or an aristocracy.

Recall that, prior to 1789, national sovereignty had always– with few exceptions– been lodged in either a monarchy or an aristocracy.  It was a novel idea to declare in 1776 that sovereignty belonged in the hands of the people.  Never before in human history had a nation of the size of the United States declared its intention to recognize its entire people as the ultimate sovereigns.  However, after the Articles of Confederation were adopted following the Declaration of Independence, the national economy was reduced to a shambles and our young country’s national security was questionable.  By 1789 it was natural to fear that the population in some states might eventually backslide and seek a return to a monarchy as a way of restoring public confidence and preserving order.

What Article IV does, then, is to deny to the people of the states the sovereign power to choose monarchy as a form of government.  This clause forever circumscribes the freedom of the people of a state to choose the way in which they govern themselves.  The denial of state power in this regard is necessary, because leaving the residents of a particular state with the absolute freedom to choose any form of state government would be an infringement upon the sovereignty of the people of the nation as a whole.

In fact, by stating that the federal government will “guarantee” a republican form of government, the Constitution makes it clear that the federal government is granted the power to enforce the prohibition on monarchy by force of arms if necessary.  Article IV makes it clear, even more explicitly than the Supremacy Clause in Article VI does, that the sovereign power of the people as a whole, as expressed through the federal government, is supreme over the sovereignty of individual states.   

If one state were to institute a monarchy, it would destabilize the entire Union of states.  In 1789, monarchies were viewed as inherently militaristic.  Monarchies place the decision of whether to resort to force within the hands of one single individual, where it is not subject to any checks or balances.  For a king, an increase in personal power and an expanded border provide mutually reinforcing temptations for invading your neighbors.

If the residents of one state were to adopt a monarchy as their form of government, neighboring states would feel threatened.  Monarchies require standing armies to maintain the king’s authority, and in order to redress an imbalance in power neighboring states would be forced to follow suit.  An alliance between two state monarchies would inspire neighboring republican states to enter into mutual defense pacts.  Imagine a United States with fences and checkpoints at the borders between the states.

The best interests of the nation as a whole require the residents of each state to cede away a portion of their political sovereignty to the nation: the ability to choose any form of state government that they desire.

This has important implications.  It implies that Lincoln was correct when he declared that the southern states had no right to secede from the Union.  While the text of the Constitution is silent on the right of secession, Article IV is an example of an overall constitutional structure that denies state residents the power to exercise political sovereignty within their own borders in a way that threatens national unity as a whole.  The denial of an absolute state power to secede is no greater a restriction on state sovereignty than the denial of an absolute state power to adopt a monarchy.

Some scholars have argued that Lincoln had to reinterpret the Constitution in order to impose a federal government of all the people that was supreme over the states.  In actuality, Lincoln was merely being faithful to the Constitution’s original design.

This understanding of Article IV Section 4 also implies that the Supreme Court was correct, in U.S. Term Limits v. Thornton, when it ruled that it was unconstitutional for states to amend their constitutions in order to impose term limits on their residents elected to federal office.  The Supreme Court’s majority opinion in that case relies upon a tortured interpretation of the various qualifications clauses of the Constitution, and the majority opinion raises Article IV Section 4 just long enough to dismiss the clause as irrelevant.  However, in the end the Court gets the basic point right by holding that state constitutions cannot impose term limits for federal office.

In his dissent in that case, Justice Thomas asserts that the Constitution’s authority depends on “the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.”  Had the majority not overlooked Article IV Section 4, the majority opinion would have had a greater textual basis to rebuke Justice Thomas.  Contrary to Justice Thomas’ assertion, the Constitution does take away from state residents the absolute power to control their own form of state government in cases where the national political structure is implicated.  The sovereign power to make decisions affecting the political structure of the nation as a whole rests with the people of the nation as a whole, not with the people of one state.

The text of the U.S. Constitution contains several clear statements that prohibit the states from frustrating the economic unity of the nation.  Economic protectionism is clearly precluded by the commerce clause, the privileges and immunities clause, and the full faith and credit clause (note that the latter two are also located within Article IV).  The fact that the text of the Constitution is far less clear about the predominance of federal interests when it comes to political unity has been the source of great debate and conflict during our nation’s history.

The debate between centralized power (sovereignty with a federal locus) and decentralized power (sovereignty with a state locus) goes back to the Federalist debate with the Anti-Federalists.  Even Madison and Hamilton themselves possessed contrary views on the matter (Madison generally favored decentralization while Hamilton strongly favored centralized government).  Commenting on the internal inconsistencies within the Federalist Papers on this topic, and the text’s sudden lurches between advocating a strong federal government at one point and then arguing in favor of state power moments later, some scholars have accused the Federalist Papers of reading as if its author was a paranoid schizophrenic.

Is it any wonder, then, that our nation’s history reflects this unresolved attitude toward who holds ultimate sovereignty?  The primacy of the federal political power over state sovereignty has been advanced by the jurisprudence of Justice John Marshall, the Civil War policies of Abraham Lincoln, and the New Deal legislation of Franklin Roosevelt.  The absolute sovereign power of the states to make political choices within their borders has been advanced by Jefferson and Madison in the Kentucky and Virginia Resolutions, by the secessionists during the Civil War, and by the leaders of the States Rights movement in the Twentieth Century.

Article IV Section 4 should remind us that under our Constitution the sovereignty of the people is a national sovereignty.  No state government, and no individual state population, has the power to take actions that threaten the political unity of the United States.  The federal government is superior to the states because it is only through a federal government that a national people can exercise their sovereignty.

No one denies that the Constitution forces the states into an economic union, even when they might prefer state protectionism.  Nonetheless, to this very day, many people still argue in favor of an absolute state sovereignty to decide political matters within their own borders.  By consistently overlooking the “Republican form of government” clause, we obscure the fact that the constitutional text imposes a political union on the states in a way that necessarily places a limit on individual state sovereignty.  By rescuing Article IV Section 4 from obscurity, we can resolve the debate over federal supremacy once and for all.

A glance at the Constitution reveals that there is much more to the document, some of it mysterious. There is, for example, talk of “Emoluments,” “Letters of Marque and Reprisal,” and “Corruption of Blood.” Indeed, large portions of the Constitution make at best infrequent appearances in public discourse. There is, one might say, an Overlooked Constitution.

The Overlooked Constitution will be the theme of our Constitution Day observation at the law school this year. As most are probably aware, in 2004 Senator Robert Byrd introduced an amendment to an appropriations bill that, when ultimately enacted, required all educational institutions receiving federal funds to hold educational programs relating to the Constitution on September 17 (which is the date on which, in 1787, the delegates to the Constitutional Convention in Philadelphia signed the Constitution at their final meeting).

In accordance with this mandate, four panelists will present brief talks concerning provisions in the Constitution that are infrequently discussed. The speakers and their topics are as follows:

Professor Stephen Engel, Marquette Department of Political Science: The Membership of Congress clause of Article 1, Section 5.

Professor Ed Fallone, Marquette Law School: The “Republican Form of Government” clause of Article 4, Section 4.

Professor Nora O’Callaghan, Marquette Law School: The Forgotten Thirteenth Amendment.

Professor Stephen Vladeck, American University Law School: The “Calling Forth” clause” of Article I, Section 8. Lunch will be provided. More information here .

First, the confirmation of Justice Sonia Sotomayor has added a sixth practicing Catholic to the Supreme Court.  As a proportion of the Court’s membership, Catholics on the Court currently exceed their proportionate representation in the general public by a significant amount.  This is an astonishing historical fact, although its significance is not self-evident.

Second, Frank Colucci’s book, Justice Kennedy’s Jurisprudence, was recently reviewed  in the Wall Street Journal by Northwestern University Law School Professor John McGinnis.  Apparently, Mr. Colucci does not adhere to the conventional wisdom that Justice Kennedy is an unpredictable jurist whose primary concerns are the aggrandizement of the Supreme Court and the divination of narrow, fact-based holdings.  Instead, and somewhat unexpectedly, Corlucci argues that Justice Kennedy’s approach to the interpretation of the Constitution is best understood as seeking to advance a moral imperative.

Justice Kennedy’s objective, according to Corlucci, is to vindicate and preserve an ever increasing share of individual liberty within our broader society.  Here is the key portion of Professor McGinnis’ review:

Looking for the sources of Justice Kennedy’s moral judgment, Mr. Colucci discovers one in post-Vatican II Catholic thought, including papal encyclicals like Dignitatis Humanae.  In Roper v. Simmons, a ruling forbidding the death penalty for criminals under the age of 18, Justice Kennedy wrote that juveniles only rarely exhibit ‘irreparable corruption’ – a phrase that a secular judge might not have used.  (Justice Kennedy is an observant Catholic).  It is odd to reflect that the justice most influenced by contemporary Catholic thought may today be – because of his emphasis on individual rights – the decisive vote for preserving the abortion status quo.

It is intriguing to consider whether there is, in fact, a demonstrable connection between Catholic social thought and Justice Kennedy’s interpretation of an evolving liberty interest guaranteed by the Constitution.

Should this matter?  Few people would argue that all religiously observant  judges are necessarily intent on imposing a theocratic rule of law (turning the gavel into a cross, as it were).  Moreover, it is neither possible nor advisable to seek to eliminate all religiously-derived conceptions of morality from the judicial decision making process.  However, the intersection of the Catholic faith and the judicial function remains troublesome for some, perhaps because it takes place out of the sight of the public and within the mind of the judge. 

A third recent event raises this same issue.  There has been a great deal of consternation in the blogosphere over Professor Alan Dershowitz’s intemperate attack on Justice Antonin Scalia’s dissent from the Supreme Court’s August 17 order in the case of In re Troy Anthony Davis. 

In that case, Justice Scalia (along with Justice Thomas) dissented from the Court’s order directing the district court to consider whether or not evidence unavailable at the time of trial now indicated that a convicted felon, presently on death row, was in fact innocent.  Justice Scalia disagreed with the Court’s order, stating in his dissent that “[t]his Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” 

Professor Dershowitz charged Justice Scalia with hypocrisy, claiming that Justice Scalia was willing to impose a constitutional rule of habeas corpus that was in conflict with Catholic teaching.  For Dershowitz, it is self-evident that it is immoral to execute a man who you know is innocent.  Apparently it is similarly self-evident that Catholic moral teaching reaches the same conclusion.

If Professor Dershowitz wanted to start a heated debate on the topic of Catholicism and the Supreme Court, he succeeded.  Some of the more interesting responses to Professor Dershowitz include this post by Professor Richard Garnett and this post by Professor Robert Vischer.

 In Professor Dershowitz’s defense, Justice Scalia raised the issue of his Catholic faith first.  In a 2002 article in First Things entitled “God’s Justice and Ours,”  Justice Scalia admitted that he finds it necessary to reassure himself that his interpretation of the Constitution does not contravene his Catholic faith.  In fact, he goes so far as to assert that, if he ever felt that the Constitution mandated a rule that contravened his faith, he would feel morally bound to resign from the Supreme Court rather than to vote to uphold that rule.

Fortunately for Justice Scalia, he has concluded that there is no conflict between Catholic teaching on the death penalty and the manner in which the United States Constitution permits the death penalty to be imposed.  This is because, as Justice Scalia explains, his interpretation of Catholic teaching on this point differs somewhat from the position of Church authorities:

I do not agree with the encyclical Evangelium Vitae and the new Catholic catechism (or the very latest version of the new Catholic catechism), according to which the death penalty can only be imposed to protect rather than avenge, and that since it is (in most modern societies) not necessary for the former purpose, it is wrong. . . . So I have given this new position thoughtful and careful consideration—and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign.  

Professor Dershowitz charges that in dissenting from the case of Troy Anthony Davis, on the grounds that the Constitution does not prohibit the execution of a factually innocent man, Justice Scalia is adopting a misguided reading of Catholic theology.  Some will be tempted to charge Justice Kennedy with a similar offense.

Justice Kennedy and Justice Scalia present the positive and the negative aspects of the same photographic image.  It is the picture of a judge trying to reconcile the role of his faith with his responsibilities on the Supreme Court.  We have long recognized that Justice Kennedy and Justice Scalia have very different conceptions about the proper role of a judge under our Constitution.  It is possible that their differing conception about what it means to be Catholic has had an equally profound influence on the divergence of their judicial philosophies.   

Catholics live their faith in a variety of ways, so it is not surprising that this variety of beliefs can be observed on a Supreme Court with six Catholic members.  Religious beliefs influence all of us in diverse ways, as do ideological beliefs, affinities for cultural traditions, and prejudices or stereotypes.  Each person’s understanding of how the world works (or should work) is comprised of a unique stew of multiple predispositions.

However, what happens when these predispositions come into conflict?  In particular, how do we react when our interpretation of the Constitution, as the embodiment of a fervently held political philosophy, comes into conflict with our understanding of the moral teachings of our faith?   Our sacred and secular belief systems must either align or come into conflict, and Supreme Court Justices are no different than the rest of us in this regard.       

Human nature being what it is, we would prefer to avoid the dissonance that occurs within our psyche when the secular and the sacred conflict.  Therefore, our natural temptation will be to engage in self-delusion.  This occurs when we force the interpretation of either our faith or our secular Constitution in a particular direction in order to bring the two of them into alignment.  Justice Kennedy wants to see his faith’s promotion of human dignity reflected in the Constitution.  Justice Scalia wants to reassure himself that his reading of the Constitution does not countenance the exercise of immoral authority.  Not surprisingly, both men see what they want to see.

 All of us begin the act of interpretation knowing what it is that we hope to find.  Is it any wonder that we often shade our reading of the text and precedent in order to arrive at our hoped for destination?  When our mind shades the text in this fashion, we risk doing violence to the meaning of the words we interpret.  The alternative, however, would be to do violence to our strongly held self-image.  Our subconscious mind will not allow this to occur. 

The only solution for a judge placed in this position is to exercise her capacity for self-awareness.  This means pausing before she rules.  During that pause she should self-consciously reflect on her premises, her life experiences, and even her religious beliefs, in order to assure herself that her interpretation of the text is driven by logic and precedent and not by an unconscious desire to rationalize competing belief systems.

Sound familiar?  This is the wisdom imparted by our newest Catholic Justice in her “Wise Latina” speech.

In Coulee Catholic Schools, the Court was asked whether a first grade teacher in a Catholic school was subject to the “ministerial exception,” meaning that the school’s religious freedom to select its own ministers and leaders barred her age discrimination claim. Half the courts in the country that have considered this question concluded that a religious school teacher is engaged in sufficient ministry to be included, while half have said that such a teacher is not. The Wisconsin Supreme Court decided that the religious school teacher in this case did engage in and lead sufficient religious activities to fall within the exception.

As the product of seven years of Catholic primary school, and the son of a longtime Catholic schools teacher, I’m convinced the Court got this determination right. Catholic school teachers lead prayer, organize Mass, teach the Catholic faith, model a moral and devout life, and incorporate religious principles into the “secular subjects” they teach as well. A religious organization should have the religious freedom to select those who communicate its faith to the rising generation free from state interference.

In addition to Professor Esenberg’s observations, let me highlight three other key points from the case:

1. Robust Religious Liberty Protection in Wisconsin. The majority’s discussion of the Wisconsin Constitution, Art. 1, Sec. 18 in paragraphs 58-66 describes a very strong protection for the free exercise of religion and conscience in Wisconsi, following the Court’s precedent in State v. Miller. Looking at the text of the clauses, the Court concludes, “It is difficult to conceive of language being stronger than this.”

This language could be important in future cases.  For instance, if future challenges were filed in the health care conscience context after the Compassionate Care for Rape Victims Act or the Madison Surgery Center decision.

2. An emphasis on constitutional text. Since the mid-1970s, the Wisconsin Supreme Court has relied heavily on legislative and popular history when interpreting the Wisconsin Constitution. In this case, the majority cited the standard three-factor test from Beno, but emphasized the importance of text as the first and foremost source. I have been working on a law review article regarding interpretation of the Wisconsin Constitution (more on that soon), and this decision definitely represents a positive step towards a more text-based interpretive method.

3. Elections matter. Justice Gableman wrote the majority opinion in this 4 to 3 decision. It’s quite probable that if Justice Butler were still on the Court, the decision would have gone the other way. As the Wisconsin Family Council noted on its blog, the closing paragraphs of the majority opinion contained an important line: “As a court, our job is to interpret and apply the law the people adopt, not to make it up in accord with ours or society’s current policy preferences.”  This rings especially true when placed alongside Justice Ziegler’s concurrence last week in VFW Post 2874.

There a few points worth making. First, it is inaccurate and misleading to call the decision, which was written by Justice Michael Gableman and joined by Justices Prosser, Roggensack and Ziegler, “legislating from the bench.” Although this exception is not spelled out in the applicable statute, it is fairly implied from the free exercise clause of the First Amendment and the freedom of conscience clause in Article I, sec. 18 of the Wisconsin Constitution. In fact, courts everywhere recognize it and it is consistent with a general reluctance on the part of courts to examine the internal decision making of religious organizations on matters that implicate the organization’s religious mission and precepts. To determine whether the plaintiff in this case was terminated due to her age, an administrative agency or court would have to examine the school’s decision in light of its religious mission and that would lead to state evaluation of religious judgments.

Second, it is also unfair to say that the Court found a “loophole,” although I can see that there is some poetic justice in the charge for critics of Gableman campaign ads that used that term in connection with certain of the Court’s criminal law decisions. 

People use the term “loophole” in connection with judicial decisions to imply that the principle of decision is either unimportant or not intended for the purpose to which it has been put. Constitutional guarantees, whether in the criminal law or religious freedom context, are never unimportant and often the question of whether they are or are not intended in the way that the Court has used them is precisely the issue before the Court. I may believe that the Court has misinterpreted constitutional protections for criminal defendants, but it is not helpful to think about loopholes. Although the use of that term in campaign literature might communicate my substantive conclusion, it really doesn’t help me make it.

Third, it is also wrong to suggest that the Court modified its own precedent or preferred the decisions of courts from other jurisdictions to its own. There was no controlling state Supreme Court precedent on the issue. There was a Court of Appeals decision that is not consistent with the method adopted by the Court but that is hardly binding on the Supreme Court. What the Court did was adopt a “functional analysis” approach to the ministerial exception asking whether the duties of the employee is questions are sufficiently “important or closely linked” to “the fundamental [religious] mission of [the] organization.” This test is in distinction to the test used by most courts which is to ask whether the employee’s “primary duties” are religious.

Fourth, it would be fair to say that the Court’s decision demonstrates at least a favorable nod in the direction of New Federalism, i.e., the idea that state constitutional provisions might be interpreted differently than parallel federal provisions. Although it does not appear that the Court’s decision turns on that (and the federal and state provisions at issue here are not identically worded), it is unsurprising. Wisconsin has previously interpreted its freedom of conscience clause more broadly than the United States Supreme Court has interpreted the free exercise clause.

Fifth, Justice Crooks suggestion in dissent that the Court’s decision calls into question its prior decision in Jackson v. Benson, upholding the constitutionality of the school choice program seems rather weak. While Coulee Catholic certainly recognizes the idea that religion is suffused throughout the curriculum of at least certain religious schools, Jackson was not based on any assumption to the contrary and the fact that religious schools are religious does not mean that vouchers to students attending those schools violate the Establisment Clause. In fact, the Supreme Court in Zelman v. Simmons-Harris held that it does not. Thus Jackson could be in trouble only if the state Supreme Court were to hold that the state constitution’s anti-establishment principle is somehow broader than that of the First Amendment. That has not traditionally been the view of the state Supreme Court.

Justice Crooks seems to think that the idea that the state may not interfere with what is “important or closely linked” to the religious mission of schools calls into question a provision in the school choice program requiring that students be permitted to “opt out” of religious activities (as opposed to subjects that are secular, even if taught in service of the school’s religious mission). Perhaps it does. But there is little reason to believe that the outcome in Jackson turned on the opt-out provision. In addition, while Coulee Catholic certainly suggests the rather obvious notion that the state could not compel religious schools to permit students to opt out of religious activities, it is far from clear that such a requirement could not be a condition of state vouchers. That gets us into messy law regarding, among other things, unconstitutional conditions and, suffice it to say, the outcome is hazy.

Sixth, I think that the Court probably got the legal standard right. Even employees of religious organizations whose primary duties are not religious may play a sufficiently important role in their employer’s religious mission that decisions regarding their hiring or firing are inextricably tied up with that mission such that the state could not examine these decisions without having to assess religious judgments.

Cross posted at Shark and Shepherd

Although many members of the Court have cited to international and foreign law at one time or another (including Justices William Rhenquist, Antonin Scalia, Sandra Day O’Connor), none have asserted that international and foreign law have any determinative or precedential value in the U.S. legal system. Moreover, citation to international and foreign law in common law cases has rarely been challenged. Rather, the issue is centered on the reference to international and foreign law when the Court is addressing the Constitution. In fact, this issue has served as a cloak for the ongoing debate between the “originalists” (those who assert that the original wording of the Constitution and its context at the time are the sole measure as to the meaning of the Constitution) and the “evolutionists” (those who assert that we must measure the meaning of the Constitution with at least an eye on its contemporary context) over the appropriate way to interpret the Constitution. In effect, the “originalist” argument states that to allow reference to foreign and international law is not merely to align oneself with foreign interpretations that could be inconsistent with the context of American constitutional law (because the sources and therefore the meaning arises in different contexts), but that the use of these foreign sources undermines the very meaning of the Constitution’s drafters and by implication American sovereignty itself. Therein lies the bedrock debate: although international and foreign law is neither mandatory nor precedential, the fear is that these references will be used as tools to pervert the essence of the “originalist” philosophy of constitutional purity. 

An interesting side note in this debate is the history of consideration of international law by the Court. For example, in Sabbatino v. Banco Nacionale de Cuba (1964), Justice Harlan, speaking on behalf of the majority, considered when might it be appropriate under U.S. law to apply international customary law as to the expropriation by a foreign sovereign of property wholly within its territory and the appropriate compensation that might be warranted by the taking. Sabbatino involved the disposition of property in Cuba purchased by a private party prior to the 1959 Cuban revolution but seized and resold by Cuban governmental entities pursuant to a decree of the Cuban government after the revolution. The private purchaser whose property was expropriated asserted that the property was taken without complying with the international law standard of prompt, effective and just compensation. Despite Justice Harlan’s concern about the Act of State Doctrine (AOSD) (a judicially created doctrine that precludes review of the legality of an act of a foreign sovereign performed wholly on its own territory) he would have applied the international customary law standard for expropriation if he could find consensus among nations as to the appropriate standard. Unable to find consensus he stated that the AOSD precluded an examination of the legality of the Cuban taking.  A primary underlying rationale for the AOSD is the potential conflict between the executive and judicial branches of the Unites States government as divided by the separation of powers under the Constitution. Justice Harlan chose not to overcome the AOSD preclusion not because it is inappropriate to consider and apply international law in this constitutional context, but rather because the international law in the area of expropriation was too unsettled to set an international law standard.

Those who rail against the citation and analysis of international and foreign law by the Supreme Court fail to consider that the Supreme Court has never barred one state from citation to and examination of another state’s constitution as an aid in the analysis of its constitution; that the Court often makes reference to secondary resources that have their origins in international and foreign law; or that Americans have historically used comparative law to examine and develop our own law. And there is the rub. If we allow the developmental experiences of international and foreign law to be a source in aid of understanding our Constitution, it will vary the literalism necessary for the preservation of the originalist doctrine.  Maybe this is why Senator Sessions and others (see, for example, Michael Chertoff in “Questions for Judge Sotomayor” in the Op-ed section of the New York Times on July 13, 2009) have raised what seems like an esoteric topic into an issue of significance.  Not surprisingly, it appears that Judge Sotomayor has never faced this issue in her voluminous history as a litigator or jurist. Although Judge Sotomayor will probably refuse to prematurely judge this issue, it has joined Roe v. Wade as a perennial for future Senate hearings for future nominees to the Court.

The case addressed whether the government may introduce a crime laboratory report (hearsay) against a defendant without calling as a witness the analyst who performed the test.  The Court held that such reports are manufactured expressly for use at trial against the defendant; hence, they constitute “testimonial hearsay” that cannot be introduced without the declarant (the lab analyst) on the witness stand, available for cross-examination. 

The dissent bewailed the expense and inconvenience wrought by this requirement, a critique seemingly blunted by the majority’s endorsement of “notice-and-demand” rules.  Such rules allow prosecutors to give pretrial notice of their intent to offer reports in lieu of expert testimony and require the defense to object absent the live, in-court testimony of the analyst.  Some states already have such rules and others, like Wisconsin, will probably soon expand their use.  (I spoke with state officials last week about some alternatives.)   Regardless, competent prosecutors will present such live testimony anyway, and even in the teeth of a defense offer to stipulate, where it is helps the jury decide facts, fills gaps in the story, or provides a “dog-and-pony show” that underscores the strength of the State’s case.  In sum, the Court’s holding hardly handcuffs the government.

And Melendez-Diaz itself may have a short-shelf life.  Only four days after publishing Melendez-Diaz, the Supreme Court granted certiorari in a Virginia case that revisits this very evidentiary scenario.  Since the recently departed David Souter provided the fifth vote for the majority, we will soon learn how justice-soon-to-be Sotomayor, a former prosecutor with a liberal bent, affects the balance.  (After reading last week’s lively exchanges about Sotomayor by my colleagues Ed Fallone and Rick Esenberg in the Milwaukee Journal Sentinel (June 28), I’ll hedge my bet, as wise Slovak men invariably do.)

Aside from the narrow hearsay issues, Melendez-Diaz speaks to several more fundamentally important concerns.  First, it evinces the Court’s continuing skepticism about expert testimony generally.  In explaining the defendant’s need to cross-examine the government’s analysts, the Court noted the “serious deficiencies” that plague forensic sciences, as tellingly set forth in a winter 2009 report by the National Academy of Sciences.  The problem is neither new nor confined to criminal cases.  Concerns in civil litigation about “junk science,” to use the sobriquet, led to the Daubert rule in the mid-1990s, which anointed federal judges as “gatekeepers” charged with ensuring that only “reliable” science and expertise be admitted at trial.  (We all know that history majors are ideally suited for this role.)   If Melendez-Diaz reveals the Court’s unease about how science is often bent, twisted, and distorted in the courtroom, it also signals intolerance for making this even easier through hearsay evidence.

And this leads directly to the second point.  By demanding that the government produce the analysts for trial, Melendez-Diaz faithfully embraces an older ideal of the trial as a literal face-to-face confrontation between the accused and accuser in a public courtroom.  It prefers the spoken word, extemporaneous exchanges through a lively Q&A, and assumes that demeanor yields valuable clues about what is believable and, as important, who is worthy of belief.  Here “character” looms large as divined in one’s appearance and deportment.  Reliability is a function of credibility.  The older-style trial judged people more than it “found” facts. 

In sum, Melendez-Diaz fits into a line of cases that recreates the world of the late eighteenth-century trial, a product of a different society and culture.  The hubris of the modern trial as a procedurally rigid, quasi-scientific search for “the” truth is a later development.  The gulf that separates the majority and dissenting opinion is one that spans the considerable changes that have occurred in American law, culture, and institutions since the early 1790s, and the limits to which that older-style trial can, and perhaps should, be adapted to present circumstances and values.

It may very well be that something like “judicial bias” is undefinable without reference to some background principles derived from the constitutional design. Unfortunately, I believe that the direct election of judges was a reform associated with Jacksonian theories of democracy, and therefore the relevant state laws post-date the Bill of Rights. Without any relevant evidence of original intent on the question of when a judge is tainted by campaign contributions, I am willing to rely on Mike McChrystal’s common sense approach: the perception of bias in this case was too obvious for the Court to ignore.

He’s right about state judicial elections. If I recall correctly, they began with Mississippi in 1832. I agree that Mike McChrystal does capture something important about why the majority acted in the way it did, but I think that it might be not simply a judicial gag reflex. I think there may be some instruction to be found in the structure of the constitution. I’m still thinking on it, but it might go something like this.

The Caperton majority was concerned with the potential for bias when a  person with a case before the court “had a significant and disproportionate influence in placing the judge on the case” through campaign contributions or direction of the judge’s campaign.

Why should the potential for bias be limited to the context of judicial elections? The potential for bias presumably arises from the “debt of gratitude” on the part of a judge that might “lead him not to hold the balance nice, clear and true.” A man should not, the majority said, choose the judge in his own case.

But, of course, a man (or, in some cases, a woman) chooses the judge in his (or her) own case all the time.  The President (or the Governor in appointive states) chooses judges that proceed to sit on cases in which the administration has a vital interest. George W. Bush had much more influence on the judicial fortunes of Chief Justice John Roberts than Don Blankenship had on those of Justice Brent Benjamin. Might he have a debt of gratitude that might prevent him from holding the balance nice, clear and true in a case raising, I don’t know, whether waterboarding is prohibited by 18 U.S.C. § 2340?

One answer would be to say that the Constitution itself provides for the appointment of judges by the executive. While there is no logical inconsistency between executive appointment and recusal in cases in which the appointing executive is a party or has – let’s say – an extraordinarily strong interest, the two ideas rest uneasily together. It may be that we ought not presume that the Bill of Rights was intended to disable recently appointed judges from sitting on cases involving –  or of great importance to – the appointing executive.

But might not this tell us something about the nature of the due process guarantee? Does it suggest that there was not and could not have been an understanding that due process is offended by the mere fact that a litigant had a key role in the judge’s elevation to the bench?

This may not mean that the outcome in Caperton was wrong. One could argue that the executive, as opposed to a private party, does not expect any particular result but that seems to beggar reality.  Executives most certainly choose judges based on expectations regarding the way in which those judges will approach cases. FDR did not suggest his court packing plan simply because more justices would improve his odds.

But maybe we can say that it would be a rare case in which the executive appointed a judge seeking a particular outcome in a specific case. She might want judges who are tough on crime or empathic. She may seek originalists or those committed to democratic constitutionalism, but she is unlikely to be looking for someone who will rule for the state in a particular case. This is not to say that this could not happen, it’s just that we ought not presume it will be so and call the entire process into question.

If that’s true then maybe Caperton was rightly decided. But it may also suggest a limit on Caperton. Just as the President or, in some states, the Governor is constitutionally empowered to select judges, so are citizens in states with judicial elections constitutionally empowered to select judges -including through participation in the electoral process by making permitted campaign contributions and speaking on matters of public import (see Wisconsin Right to Life v. FEC).

On this view, Caperton ought not to be expanded to cases in which the contributions or expenditures in question were not made by a party to a particular case pending or imminent but by persons who are looking to  elect judges thought to have preferable philosophical dispositions. In other words, it should be limited to the particular principle that the court said it was applying to Caperton’s case and that its broader endorsement of a due process right to recusal in cases presenting the potential for bias ought not to be expanded.

In the discussion that follows, I will continue to use the Sotomayor/ Bork comparison in order to draw out the manner in which the Supreme Court’s interpretation of the Second Amendment threatens to undermine the very philosophy of constitutional interpretation that is most closely associated with Judge Bork.

Opponents of the Sotomayor nomination have seized on the Second Amendment as an issue with which to attack her.  Portraying her as an opponent of the constitutional right to own firearms is a strategy that will certainly succeed in energizing the base of the Republican Party.  If she rises to the bait during her confirmation hearings, and expresses any skepticism over the correctness of the District of Columbia v. Heller case – striking down the DC handgun ban– then efforts to paint her as a liberal jurist who is out of the mainstream might gain some traction with the public.

Certainly there are grounds to criticize the textualist reading of the Second Amendment endorsed by the Heller majority.  In the course of finding that the Constitution prohibits the federal government from banning handguns, Justice Scalia applies the modern, colloquial usage of the phrases “bear arms” and “keep arms” in order to conclude that the text of the Second Amendment guarantees a right to own handguns for personal use.  He also chooses to interpret the operative clause of the Second Amendment independently of the prefatory clause in the first instance, and only later reintroduces the prefatory clause into the analysis in order to determine whether it forecloses his chosen interpretation of the rest of the Amendment.

Although Justice Scalia denies it, the meaning of the phrase “bear arms” did possess a distinctive meaning in the 18^th century that differs from the way in which the phrase is commonly used today.  The phrase was applied to the military use of weaponry and was derived from its Latin roots (arma ferre) describing the “equipment of war.”  Justice Scalia’s method of interpreting the text also ignores the Style Periodique used by the drafters of many formal 18^th century documents (i.e., Thomas Jefferson in the Declaration of Independence), whereby a series of linked propositions gradually reveals the full meaning of a sentence at its conclusion.  In other words, it is likely that the meaning that Justice Scalia ascribes to the words of the text was not in fact the original intent of the drafters of the Second Amendment.  The Heller opinion is strong evidence that textualism is not a reliable technique for divining original intent.

Indeed, more than twenty years ago Judge Bork asserted that the originalist interpretation of the Second Amendment was limited to the protection of formal state militias as a counterweight against a standing federal army.  Many forget that the National Rifle Association was critical of Judge Bork during his confirmation hearings for this very reason.  I do not know whether Judge Bork has subsequently modified his views on the matter.  My assumption is that Judge Sotomayor is wise enough to avoid any direct criticism of the Heller opinion during her confirmation hearings.

However, Judge Sotomayor will undoubtedly be questioned closely about her ruling in the Second Circuit case of Maloney v. Cuomo.  The issue there was whether the Heller opinion guaranteeing an individual right of gun possession applies to state and local governments as well as to the federal government.  In other words, does the 14^th Amendment “incorporate” the Second Amendment and apply it to the states despite the fact that the original Bill of Rights only applied to the federal government?  In Maloney, Judge Sotomayor sat on a three judge panel that refused to read the Heller decision to in any way limit state gun control laws.

Opponents of Judge Sotomayor would like to use this ruling as evidence that she is hostile towards gun rights.  Unfortunately, the underlying premise of such an attack is that the Heller opinion gives circuit court judges carte blanche to overturn hundreds of years of Supreme Court precedent.  A long line of Supreme Court cases rejects the wholesale incorporation of the Bill of Rights against the states via the 14^th Amendment (The Slaughter House cases) and also upholds state laws restricting gun ownership (Cruikshank, Presser and Miller).  As Judge Easterbrook of the Seventh Circuit noted — in the course of oral arguments in a case where he ultimately adopted the same reasoning as the Maloney panel– the decision to depart from such established precedent is “above [a circuit judge’s] pay level.”  The issue of the incorporation of the Second Amendment against the states may come before the Supreme Court as early as next year.

Interestingly, the Robert Bork of twenty years ago might well agree with the reasoning of the Maloney decision.  As a law professor, Judge Bork wrote in opposition to the application of the Bill of Rights to the states, and he was very critical of the manner in which the Supreme Court “incorporated” the Bill of Rights through the Fourteenth Amendment’s right of due process.  In fact, his originalist theory of constitutional interpretation appears incompatible with both the Heller majority’s modern reading of a time-specific phrase and with the push to read the Second Amendment as a limit on state power.

As a Supreme Court Justice, Judge Sotomayor will not be shackled by precedent to the same extent as a circuit judge.  Therefore, she will face pointed questioning on her views of the Second Amendment and the incorporation debate.  My prediction is that if she is confirmed she will confound her critics and vote to apply the rights recognized in the Heller decision against state and local governments.

After all, the Heller opinion interprets the Constitution in a way that every liberal should love.  The case can be read to support the proposition that the individual rights expressed in the Constitution should be interpreted expansively in order to reflect current realities.  Nowhere did the Heller majority pause to consider whether the individual Second Amendment right that it found in the text applied specifically to automatic weapons, armor piercing ammunition, or any of the other modern aspects of “firearms” that were unknown in 1789.  Instead, Justice Scalia’s opinion attaches the right to bear arms generally to the kinds of weapons “typically possessed by law-abiding citizens for lawful purposes.”  Of course, the weapons that met this criteria in 1789 differ from the weapons that met this criteria in 1939, when the Court upheld the federal regulation of shotguns, which might very well differ form the types of weapons that meet this criteria today.  This fact suggests that once a right is located in the original text it continues to attach and respond to evolving societal circumstances.  Therefore, Justice Scalia’s treatment of individual rights under the Second Amendment contrasts with other instances where he has expressed doubt that the scope of conduct protected by the Constitution can evolve.

If we take an acceptance of evolving individual rights and add the additional confirmation that state and local governments are necessarily precluded from restricting these evolving rights to the same extent as the federal government, the result is some of the strongest rights-based jurisprudence of recent years.  I doubt that any of this would trouble a Justice Sotomayor.  On the other hand, a Justice Bork might have difficulty accepting such a result.

The Heller opinion provides a test case of what happens when conservative theories of constitutional interpretation come into conflict with culturally conservative values.  During his career as a scholar and a judge, Robert Bork made it clear that if forced to choose between the two he would choose the former.  His consistency of thought over his long career fed into the popular conception of Judge Bork as a jurist that placed fidelity to theory ahead of the real world consequences of his judicial rulings.  After all, the public wants to see a little pragmatism in its judges, just not too much pragmatism.  But Judge Bork’s place in the conservative canon has become somewhat ambiguous some two decades after his nomination battle.  Despite his continued iconic status as a symbol of conservative thought, the power brokers in today’s conservative political movement place a primacy on cultural values over theoretical consistency.

This focus on cultural conservatism has had unintended consequences for the political right.  I would contend that the litigation strategy of the National Rifle Association has done more to expand the protection of individual rights under the Constitution over the past few years than the strategy of the American Civil Liberties Union.  Paradoxically, the success of cultural conservatives in achieving their objectives on the issue of the right to bear arms has come at the expense of undermining the intellectual foundation of Judge Bork’s judicial philosophy.

The Chief Justice makes a rather stark assertion: “The Court’s inability to formulate a ‘judicially discernible and manageable standard’ strongly counsels against the recognition of a novel constitutional right.” He cites to Veith v. Jubelirer in support of this statement, which of course held no such thing. In fact, as a plurality opinion devoted to the issue of what constitutes a “political question,” the Veith case is a fairly slender reed upon which to rest such a sweeping proposition.

It was another Chief Justice, John Marshall, who famously asserted the traditional common law rule that governed the role of the Supreme Court in the administration of justice. In Marbury v. Madison, Justice Marshall wrote:

The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.

By demanding that the judicial remedy be clear and manageable before the Court should undertake to recognize the existence of a constitutional right, Chief Justice Roberts would transform judicial restraint into judicial timidity. For example, one could easily take the holding of the Supreme Court in Brown v. Board of Education – that the maintenance of segregated schools for blacks and whites violates the Equal Protection Clause – and generate 40 unanswered questions:

1. Is the proper remedy for segregation the forced busing of students to different schools?

2. Should busing plans be designed to achieve the integration of each individual school or is it sufficient that the school district as a whole be integrated?

3. Should busing plans incorporate districts without a history of discrimination if doing so will aid in the creation of a larger integrated educational system?

4. How long should forced busing plans be maintained before integrated school districts are allowed to naturally slide back towards segregation?

5. Can school districts without a history of intentional segregation choose to voluntarily impose busing plans that create integrated schools?

I could go on and on, as there is a two decade history of busing litigation in federal courts that worked through these and countless other questions in the wake of the Brown decision.

These cases constitute the far end of the spectrum in terms of federal judges leaping into the great unknown in order to craft a remedy for a newly created constitutional right. Yet Justice Roberts seems to suggest that the lesson to take away from this experience is that the Supreme Court should not have overturned Plessey v. Ferguson and ordered the desegregation of public schools. He suggests that if the Justices cannot anticipate all of the issues raised by an attempt to remedy the violation of a constitutional right, perhaps the right shouldn’t exist at all. I prefer Justice Marshall’s classic definition of the judiciary. If there is a violation of a legal right, it is the obligation of the federal courts to find a remedy.

Wasn’t Brown v. Board of Education driven by empathy, not just the weighing of legal merits?  How about Meyer and Pierce?  Is the recognition that “the child is not the mere creature of the state” as a rationale for a judicial decision driven solely by legal merit, or something else?  And what about abortion?  There are lots of Supreme Court decisions that reflect weak constitutional interpretation, but calls for the Court to overturn Roe v. Wade are not just about remedying bad interpretation, are they?  Aren’t we also asking judges to empathize with the unborn in recognizing the need to overturn Roe?

Putting aside Roe (which I think is all about weak constitutional interpretation), Rob’s point goes to the idea that I was trying to explore yesterday about cabined empathy. It can be, to borrow Ed Fallone’s phrase again, useful in reasoning from undisputed (or at least a judge’s accepted) first principles. It isn’t that empathy creates an obligation of equal protection, but it does help us see the flaw in Justice Henry Billings Brown’s (who remembers that name?) assertion in Plessy that the badge of inferiority arising from Jim Crow exists “solely because the colored race chooses to put that construction upon it.” 

Although I have argued against Justice O’Connor’s endorsement test in Establishment Clause cases, empathy might help us see that the harms stemming from government endorsement of religious principles flow as well from the government’s disapproval of those principles.

The endorsement test is a useful example, I think, because it also demonstrates the danger in interpretive methods that do not sufficiently bound empathy and the predilections of the judge. As was true of so much of Justice O’Connor’s jurisprudence, the test maximizes judicial discretion. It tells the judge to prohibit endorsement but then defines the concept in a way that alows the judge to completely contruct its presence or absence. The court is not to look at whether real people perceive the endorsement of religion but whether a person of the judge’s imagining – someone who is familar with the text of the first amendment and the history and purpose of the challenged practive – ought to perceive. Not surprisingly the test came to be known by the acronym of WWSD – What Would Sandra Do?

Maybe Catholic legal thought has something to tell us about this as well. Subsidiarity can be a maddeningly elastic notion, but doesn’t it remind us that the courts are only one of the institutions ordained to create justice and that they ought to operate within their sphere of authority. If that’s so, then using, in Orin’s phrase, any “appreciable legal ambiguity” to rule in a way that “furthers whatever normative vision of the law that the judge happens to like” is problematic from the perspective of Catholic legal theory.

President Obama’s stated preference for judges with “empathy” has been a jumping-off point for a variety of conservative versus liberal debates on constitutional interpretation. Folks who tend to think like I do on these matters have roundly criticized the President for suggesting that judges ought to abandon the rule of law in favor of preferred results.

But the real debate, in my view, is not about whether empathy is a desirable quality in people and judges, but what role empathy ought to play in, to borrow from Ed, seeking “the logical consequence of undisputed first principles, the overall structure of the document, and prior interpretations.”

It seems to me that, while empathy may not be the most important quality in such an enterprise and emphasizing it presents certain risks to the rule of law, it is not wholly irrelevant.  For instance, in applying the Fourteenth Amendment’s guarantee of equal protection, a certain degree of empathy with the position of African-Americans facing a legal regime of “seperate but equal” may be relevant.  

Nevertheless, I think the President’s emphasis on empathy is problematic. The first concern is that, as presented, the empathy that he called for seemed to be ideologically slanted, singling out those dispossessed groups that the progressive political tradition has historically regarded as uniquely disfavored and as needing special protection from and intervention by the state.

But, more fundamentally, it calls into question adherence to Ed’s formulation of what constitutes legitimate consitutional decision-making.  If empathy is defined as a concern for a particular result in the matter at hand, the logical application of first principles, structure, and prior decisions is threatened. If empathy is defined as one tool in the interpretive process, the devil is in the details, and it is here that we arrive at what I think is the second point raised by Ed’s post.

Much of the disagreement in constitutional interpretation has to do with how one discerns first principles and constitutional structure. An unfair caricature of the “conservative/restraintist” view, recently indulged by the formerly conservative Doug Kmiec, is that public meaning ”virtually delivers itself like the morning paper.” I know of almost no one who believes that. An unfair caricature of the “liberal/activist view” is that it can be anything. I know of almost no one who believes that.

But, as unfair as these caricatures may be, they do suggest something about the difference of opinion between those who advocate more or less restrained interpretive philosophies, and that difference itself bears upon the role of “empathy” in judicial decisionmaking. The more elastic these first principles are thought to be or the more discretion is recognized in the ways in which they are discerned, the greater will be the role of empathy and the political and policy choices that are necessary to translate empathy into action.

Teaching Constitutional Law, it is easy to get wrapped up in ideological conflicts and to overlook the key role that logical syllogisms play in the construction of Supreme Court opinions.  Certainly the students do not immediately grasp the connection between formal logic and Supreme Court decision-making.  They begin the semester with the assumption that the members of the Court merely vote their ideologies.  As the students assimilate the various interpretive theories for reading the text, such as textualism or intentionalism, they flirt with the possibility of deriving the meaning of the Constitution in an objective manner.  However, the inconsistent manner in which the members of the Court employ these interpretive methods soon frustrates a fair proportion of the class.  Some students begin to drift towards the view that the decisions of the Court are merely bald assertions of political power, while others begin to flirt with nihilism and the belief that the entire interpretive enterprise is arbitrary.

My personal view is that the United States Constitution is a political document, constructed via compromise between various interest groups and left intentionally ambiguous in several key respects. 

The success of this careful drafting effort can be seen in the fact that even today adherents of conflicting political philosophies claim the same textual provisions as a reflection of their core beliefs.  Of course, if certain philosophical battles were intentionally left unresolved by the Framers, then many provisions of the text will be subject to multiple equally valid interpretations.  This is not a view that provides comfort to anyone seeking the “true” meaning of the Constitution.

In my opinion, what makes any particular Supreme Court decision defensible as an exposition of the Constitution’s meaning is whether the Court’s reasoning follows an internal logic.  A syllogism must be put forth that defends the majority’s interpretation as the logical consequence of undisputed first principles, the overall structure of the document, and prior interpretations.  This is a process that allows the students to separate good results from bad logic (Plyler v. Doe?) and helps the students to isolate cases where the underlying assumptions of the Court are more important than the Court’s reasoning (Marbury v. Madison?).  This past semester, I assigned the book Being Logical by D.Q. McInerny as optional reading in order to assist my Constitutional Law students in this process.

I think that it is valuable to focus on the elements of formal logic as an integral part of legal education, especially since it is easy to overlook these basic tools in the pursuit of the latest technology or the latest “law &” fad.  I am heartened that my colleagues on the faculty at Marquette University Law School just approved two new courses in Rhetoric for the coming year, as well as a course that focuses on the philosophy of Plato and Aristotle.  Some observers might disagree with my belief that a facility with principles of classical Greek philosophy remains relevant to the practice of law in the twenty-first century.  I say that it is only logical.

Based on Atkins and Roper anyway — I am admittedly not as familiar with some of the Court’s other uses of foreign law – I think that Tribe is right about at least two things.

First, much of the criticism of the Court’s use of foreign law is overblown.  Despite suggestions that American sovereignty itself may be threatened by citations to foreign law, I think it is hard to read such citations as anything more than an afterthought in either Atkins or Roper.  Indeed, in Atkins, the reference to foreign law is made only in passing in the middle of a long footnote.  In Roper, foreign law does get more textual play, but only after the Court has already completed its standard two-step Eighth Amendment analysis.  (”Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”)  I like Tribe’s phrase for this (perhaps borrowed from Mark Tushnet): the justices are “using foreign sources to put icing on cakes that they insist have already been baked” (187).

Second, I think Tribe is also right to suspect there are connections between jurisprudential “antiglobalism” and “the evidently rising national anxiety about immigration, the outsourcing of important economic activities to businesses and employees overseas, and the decline of American prestige abroad in the wake of the Iraq war” (186).  Without some connection to deeper national preoccupations, it is hard to see why a few passsing references to foreign law have produced such an outpouring of outrage.

To be sure, there is something rather awkward in the foreign-law references in Atkins and Roper, particularly when the opinions are set against the backdrop of the Court’s earlier Eighth Amendment cases.  As it has attempted to regulate the politically popular death penalty through Eighth Amendment interpretation, the Court has obviously been quite sensitive to charges that it is merely enacting its own policy preferences.  For that reason, in its modern Eighth Amendment cases, the Court has repeatedly emphasized the use of “objective” indicia of national consensus.  Usually, this means little more than simply counting the number of states that prohibit the challenged practice.  This has always struck me as an odd way to decide the scope of an individual constitutional right; I would have thought such rights should function as constraints on majority will, not codifiers of majority will.  In any event, the point is this: when the touchstone of Eighth Amendment analysis is counting states to decide “national consensus,” there is indeed something a bit jarring about following the state-counting with nation-counting — this seeems implicitly to suggest that foreign nations “count” as much as domestic states and that foreign preferences are part of the “consensus” that the Eighth Amendment doctrine purports to codify.  Framed this way, one can see some sort of basis — still much overblown, I think — for the sovereignty concerns.

A more coherent approach to the Eighth Amendment — one, that is, that does not purport to make individual rights a popularity contest — would result in less dissonance when foreign law is consulted.  The sort of reasoning suggested by Tribe might then have greater appeal in the Eighth Amendment context:

[T]here is much to be said for learning from other nations and from the world community as we seek to flesh out the skeleton of basic human rights that has always undergirded our own Constitution’s protections for life and liberty, particularly given the strong evidence that the framers of the 1787 Constitution read widely and borrowed freely from the ideas of international law treatise-writers, and that they thought of themselves, as did those who drafted the Fourteenth Amendment nearly a century later, as protecting basic rights common to all humankind and not some peculiarly American set of rights and privileges. (183-84) 

The favored behavior is “judicial restraint,” which is usually defined by the values of “originalism” (deference to the original intent of the lawgivers), “textualism” (respect for the language of laws), “self-restraint” (respect for precedent) , and “separation of powers” (deference to the prerogatives of democratically elected legislative bodies and/or the States).

The foundations of “judicial restraint” are originalism and textualism.  “Self-restraint” and “separation of powers” are secondary values. Precedent and legislative enactments are binding and commendable only when they are consistent with the original intent and text of higher law, which is not always the case. 

The words of any law (statute or a decision) are the best evidence of its meaning because it is presumed that the law’s Framers picked those words to efficiently describe what they intended the law to require or prohibit.  (For the sake of convenience I use “Framers” to refer to courts rendering a decision or legislative bodies drafting a statute.)  “Textualism” demands respect for the clear meaning of these words.  Unless there is some unavoidable flaw or ambiguity in the drafting which makes the intent of the Framers incomplete, incoherent, or ambiguous, courts should treat laws as meaning what they say they mean.

Textualism has its limitations. 

As history shows, the apparently clear meaning of text can be easily distorted or disregarded.  In numerous rulings after Plessy v. Ferguson, 163 U.S. 537 (1896), courts interpreted “separate” rigorously and “equal” with great imprecision.  In Slaughter-House Cases, 83 U.S. 36 (1873), the Privileges and Immunities Clause of the Fourteenth Amendment was summarily eviscerated.  Similarly, in D.C. v. Heller, 554 U.S. 290 (2008),**  the opening clause of the Second Amendment was voided.  In decisions such as Crawford v. Washington, 541 U.S. 36, courts have given open lists of factors to consider in certain situations, which list of factors lower or later Courts treat as if exhaustive requirements.   In any of these cases, activist implementation of personal policy preferences masquerades as “textualism.”  These behaviors could be called “pseudo-textualism.”

The value of textualism is also of no assistance when an issue or controversy arises regarding a matter not yet referred to directly by any law because the courts or legislative bodies remained silent on some now-controverted matter.

If the plain words of a law can be subverted to advance a personal agenda, think how much more difficult it is to faithfully adhere to the virtue of originalism.  How do we know what the “original intent” was of people long dead? 

If the Framers fully recorded their intent, then we can examine those records.  But all written records fall under the textualism paradigm, and all are equally subject to abuse as discussed previously.  Since the best and often the only record of the Framers’ intent is the words they used to write their law and those best word are subject to misuse, other written records are even more vulnerable to “pseudo-textualism.”  Court decisions usually present easier problems because courts usually explain their purposes in a decision.  However, faithful analysis of any written record of intent is guided by textualism, and is subject to the same historically demonstrated abuses of “pseudo-textualism.”

Where the laws are silent or records of intent are missing, courts must find other means to determine the intent of the Framers.  Determining the intent of an accused is a common problem when intent is an element of a crime, so at first blush determining the Framers’ intent in some law seems to be a manageable problem even without a written record of intent.  However, determining the original intent of laws decades or centuries old is more complex than determining the intent of an accused felon.  Intent can be surmised by analysis of circumstances surrounding the act in question.  When a jury is asked to render a verdict based on circumstantial evidence of intent, the jury examines the circumstances with their contemporary understanding of contemporary situations and contemporary expectations.

When attempting to apply this strategy to the intent of a law written long ago, the contemporary perspective is unavailable.  Which circumstances mattered at the time?  How would the Framers have reacted to the social and technological changes occurring since the law was given?  At this point, historical analysis must replace legal analysis.  But this is problematic because even historians disagree about the meaning of historical events and circumstances.  All historical analyses are fraught with investigative biases.  And these are the experts!  There is no reason to place any confidence in the ability of jurists acting as inexpert historians to do as well, much less to do a better job.

To supplement an inconclusive record of intent, courts have analyzed closely related activities or enactments by those who were contemporaries of the Framers.  In the recent Heller decision, the Court examined firearms ordinances contemporary to the Second Amendment on the presumption that these would illuminate what the Framers intended by the Second Amendment.  In Crawford, the Court examined the history of the confrontation right.  In both of these cases, the Court majority and dissenters examined the same history and came to contradictory conclusions.  How can we understand this except that in each instance, historical examinations aimed at finding the Framers’ intent resulted in something else?  The jurists found historical evidence inconclusive, while others “found” it supporting their own personal policy agendas.  This latter behavior could be called “pseudo-originalism.”

The apparent objective nature of “judicial restraint” is a mirage.  Except in those rare instances where the law is blessedly clear, courts, especially at the appellate level, examine challenged laws in the course of their duty.  Even if they do their work by the standards of “judicial restraint,” they must apply their own sense of what proper policy and standards apply at each stage of the analysis.   When the words of the challenged law are not precisely on point or the intent of the Framers is unclear, the values of judicial restraint provide only a non-exhaustive list of factors to consider.  They are not a complete exposition of how to arrive at a proper decision.

When examining the rationale for a law, what does restraint require when the Framers’ rationale or premises are found faulty?  Does “restraint” mean adhering to the result however faulty its derivation?  Or does “restraint” mean adhering to the reasoning process, but taking into account updated facts, and adhering to the outcome even if the Court doesn’t like it?

The ambiguous guidance of “judicial restraint” is not commanded by the text of the Constitution.  Worse, the Ninth Amendment makes no sense except to command protection of individual rights enumerated nowhere in the Constitution.  It is a law whose narrow reading compels a broad interpretation of individual rights.  But how do jurists find these rights?  MORE IMPORTANTLY, how did the Framers intend us to find these rights?  In the rights the Framers recognized in 1790?  Or in the rights the Framers would have reasoned to if they knew what we have since learned about the human condition?  However we answer this question, our answer both informs and is informed by our personal beliefs.  We must at least flirt with “activism.”

Here is the crux of the problem: “judicial restraint” is a policy position.  How much respect is “sufficient” for precedent and legislative prerogatives?  Which of several textual interpretations is controlling?  And why?  What facts are most persuasive regarding the Framers’ several possible or likely intentions?  None of these questions have strictly objective answers; all require a court to make judgments about history, language, political or social theory, or legal philosophy.  Whenever human beings make decisions like these, with the weight and impact of judicial decisions, they necessarily must employ their own personal moral compasses to evaluate the weight and implication of the evidence.  They must be guided by their own personal beliefs.  They must flirt with “activism.”

Bald-faced disregard of law is not a behavior the courts should ever engage in.  But laws will always be flawed; they will be incomplete, incoherent, or ambiguous.  Courts may endeavor to achieve faithful interpretation and enforcement under the banner of “restraint,” but inevitably they will come to situations where familiar landmarks fail.  At that point, courts must either duck the issue or find just, equitable solutions.  To avoid negligence, courts must give regard to their own sense of right and wrong.   They must flirt with “activism.”

Some may say this puts us on the slippery-slope to ruin.  To this I can only say: life is lived on the slippery-slope to ruin.  Every day.  Whenever a court does as they all eventually must do, and makes a difficult decision, there will be those who will disagree with the court.  This is always so because any decision at the juncture of power and propriety will annoy someone.  And some of those so annoyed will complain of “judicial activism.”

** In the interests of full disclosure, I do believe in an individual constitutional right to keep and bear fire arms, based not on the Second Amendment, but on the Ninth.  My complaint with Heller is not with the result, but with the implementation by the Justices of their personal agendas; my complaint is with their activism.

I have come to believe that the underlying presumptions of proponents and opponents of same-sex marriage are almost ontological in their differences about the nature of the law and the way in which it shapes and is shaped by society. We are all hard-wired now days to think of constitutional law as, largely, the mediation between the “rights” of individuals and the “demands” of the state. The former are seen as radically subjective, while the latter are the sum of their legal incidents. The former are not to be judged, and the latter are often examined for their “fit” without regard for their interaction with extralegal norms and institutions.

We also are steeped in an almost eschatological view of the law in which we see the claims of some new “discrete and insular minority” as analogous to those advanced during the civil rights movement and somehow validated by an Hegelian move toward “equality” and progressivism.

I understand the attraction of those assumptions, but they are not universally shared and do not underlie the arguments against same-sex marriage. This makes it hard — or so it seems to me — for proponents of same-sex marriage to see the point that opponents are making. We are speaking in a way that cuts against the grain of much of postwar legal and political theory.  As a consequence, much of what I have seen in debates on the issue are charges of religious zealotry, bigotry and, as in Varnum, “irrationality.” I congratulate Mr. Samis for trying to steer clear of these.

The other interesting thing in the academic literature on same-sex marriage is the degree of agreement between the right and the left regarding the consequences of same-sex marriage. They believe that it will change marriage profoundly, only differing as to whether this is a good or bad thing. Yet, at the level of popular discourse, proponents of same-sex marriage deny — even claim to be puzzled by — the very results  that theorists of their position expect and desire.

Mr. Samis says that he had hoped (really?) that I would offer “the reasons that same-sex marriage should be banned, but alas it was not to be so . . . .” Of course, he need not be -– probably will not be -– persuaded by those reasons, but my post expressly distinguished between the differences that justify the state’s distinction of same-sex relationships with respect to marriage as a matter of equal protection and those arguments that say it should not redefine marriage as a matter of policy.

The former dispose of Varnum. I am fairly confident that Mr. Samis did not learn in Con Law 2 that, in this context, “all one needs show is that the right at issue satisfies some legitimate purpose and avoids significant harms” (and I’ll assume that he did not really mean to claim that this is some test for the recognition of constitutional rights or for application of the equal protection guarantee).  Nor do I believe that the analogy to forms of speech that serve different purposes but that, nevertheless, each deserve constitutional protection is apt. There is a difference between defining the express constitutional protection of speech and the application of the equal protection guarantee. The latter does look for similarities between classes, but the heart of the matter is not the similarities but the distinctions. What are the differences between classes and how do they justify differential treatment?

Mr. Samis claims to agree with me on the “purposes” of marriage. I think he does not. What I said is that marriage involves (we hope) the union of two people who love each other and commit to mutual support. Mr. Samis would argue that these are sufficient reasons to extend civil marriage to relationships that exhibit these characteristics. As important as these relationships may be to the people who are in them and as admirable as these people may be, I don’t.

While love and commitment may explain much about why people marry, it does not tell us why the state recognizes civil marriage. Any number of relationships might satisfy the first two requirements, but we don’t allow the participants to marry.

The reason that we allow civil marriage does have to do with channeling potentially procreative relationships into a certain context. It is to communicate the norm that sexual relationships between men and women ought to take place within a marital relationship and that this relationship should be governed by a set of expectations that, whether we acknowledge it or not, are designed and have been developed to facilitate the care of any children that the relationship might create. It assumes — in fact, insists — that children have a right to be – are best off if they are — raised by their biological mothers and fathers.

This is why the charge of “discrimination” on the basis of sexual orientation is unhelpful. While it would certainly be irrational to discriminate on the basis of sexual orientation in, say, hiring law professors, it is not irrational to do so when it comes to marriage. The state acted to encourage certain types of heterosexual relationships (married ones) over others (cohabitation and casual sex) because a man and woman who sleep together might make a baby.

But two men or two women cannot do so. Because of that, the state simply does not have the same reasons to create and encourage a marriage-like status for same-sex couples. It does not have the same interest in structuring their sexual relationships.

I am fully aware of and have spent much time responding to the argument that this cannot be so because we allow men and woman who cannot or will not procreate to marry. That argument is wholly beside the point. For the most part, we cannot know which ones these will turn out to be and it would be intrusive on individual privacy (as well as, in many cases, impossible) to try to find out.

More fundamentally, channeling nonprocreative heterosexual relationships strengthens the norms of conjugal marriage. In fact, if we channeled –- or regarded as equally desirable — heterosexual relationships outside the marital norm whenever a couple could not — or intended not to have — children, we’d actually weaken the marital norm for heterosexual couples, as we have done with no-fault divorce laws and other manifestations of the sexual revolution.

Nor am I much moved by the argument that, having weakened the marriage norm and the value of fathers as fathers in other ways, we are no longer in a position to insist upon it. While it’s true that we no longer criminalize adultery and fornication (and should not), that doesn’t undercut the cultural norm that marriage is trying to preserve. While it’s true that we have weakened the marital norm and weakened fatherhood through liberalized divorce law and more generous attitudes toward out-of-wedlock births and nonmarital relationships, that has come at a cost — one that has been devastating among the poor. Mr. Samis may be right -– unfortunately, he is right — that society has sent the the message that fathers as fathers do not matter. But I would rather rail against the darkness than conclude that we must now live in that long night.

The decline of the marital norm and fatherhood has resulted in enormous human misery. There is nothing in our social policy — not the decline of unions, not free trade, not welfare reform, not the imagined scaling back of government over the past 30 years — that has harmed the poor more. While that doesn’t mean we should or can go back to 1959, it is foolish to ignore the harm and see only the benefits.

There is a much better point for proponents to make here, although they rarely do so. Why, they might say, wouldn’t trying to channel same-sex relationships into marriage help underscore the norm as well? Why might it not help the children (admittedly very few) that are raised by same-sex couples. If gays and lesbians want to commit to the norms that have evolved to restrain and channel heterosexual relationships, why not encourage it?

Here is where we get Burkean. Marriage is a fundamental institution that has been weakened (by no fault of gays and lesbians) at great social cost. The practical problems of the very small number of same-sex couples who would marry (and the almost infinitesimal number of children who would be raised by them –- particularly under circumstances where both partners could have parental rights) can be addressed in other ways. In other words, there is great risk and relatively little need — unless you are compelled by a desire to, as same-sex marriage proponent Andrew Koppelman says, “sanctify” gay and lesbian relationships. To say, incidentally, that this is tantamount to a claim that amounts to no more than “society isn’t ready” strikes me as an extraordinary assertion of hubris and ignores the past fifty years of the social history of marriage.

Nor am I simply alluding so some unknown and unspecified threats. The difficulties with the “no harm” argument are many. The redefinition of marriage would underscore the “close relationship” model of marriage which, as Mary Ann Glendon of Harvard and other scholars have noted, ineluctably weakens the norms of conjugal marriage by loosening the social (if not legal) strictures on individual choice in matters of sexuality and family structure. Remember marriage — at least our traditional conjugal model — absolutely does “endorse” the relationships to which it applies. In fact, it must endorse them because its very purpose is — at least for men and women — to encourage them as opposed to other forms of relationships.

If you don’t believe me (or her), read what the theorists of genderless marriage have to say. They believe that it will advance the close relationship, as opposed to the conjugal, model of marriage. They say that it will change the public meaning of marriage. As one of them noted, “the right wing gets it.” Of course they count this change as a good thing. I do not.

I agree that all children cannot be raised by their biological father and mother. Sometimes the ideal is not possible and we should not let the perfect be the enemy of the good. Divorce is sometimes the best of bad choices and adoption is an attempt to take lemons and make lemonade. But we don’t — at least not yet — marry people with the expectation that they ought to get divorced and thereby impair or eliminate the relationship between a child and her mother or (usually) father. Same-sex marriage necessarily sends a message that it is perfectly fine for children to lack a father or to lack a mother.

Will expanding marriage to same-sex couples have no impact on the norms of marriage itself? Perhaps, but it strikes me as unlikely and, once again, the more sophisticated proponents of same-sex marriage do not believe that. Thus, the Ontario Court of Appeals, in mandating same-sex marriage, expressly demanded that its incidents be changed to accommodate same-sex couples, suggesting that it might require the recognition of (at least) tripartite forms of parental rights since, even if Heather has two daddies, she will also have a mommy. Others have suggested modification of norms and legal rules regarding financial interdependence and the presumption of marriage. Still others have argued that the sexual exclusivity that is a norm of conjugal marriage need not be –- and perhaps should not be –- an expectation of genderless marriage.

This shouldn’t be surprising. To believe otherwise is to believe that sexuality is nongendered in the sense that a relationship between two men or two women is likely to be the same — save for some physical details — than one between a man and a woman. If the norms of marriage developed from a need to bridge the sexual divide between men and women – which is itself a function of the fact that sex makes babies — then why would we expect partners in other forms of relationships to develop — or at least to experience in the same way — the same norms and expectations? There may be much about homosexual relationships that are the same, but it also makes sense to think that there will be much that is different.

Nothing I have said here implicates religion or morality. In fact, it’s probably more rooted in evolutionary biology. To extend marriage to relationships that cannot produce children and whose participants, as a result, are unlikely by evolution or socialization to see them in light of norms and expectations that grow from the nature of relationships that are potentially procreative, seems likely to change them.

It is not an adequate response to say that, well, “I don’t see how your homosexual marriage can affect my heterosexual one.” As Maggie Gallagher writes, that is a sound bite and not a serious thought. Of course, it may not, just as your neighbor’s no-fault divorce did not cause your parents to break up. (Incidentally, Helen Alvare recently wrote an excellent piece in the Stanford Journal of Law & Public Policy demonstrating the way in which arguments for no-fault divorce track those now made for same-sex marriage.)

The consequences that concern me are not an immediate impact on individuals, but a change in cultural understanding — and eventually the law — that would occur over time and in ways that are almost impossible for us to see today. Proponents can shake their heads, praise “progress,” condemn “reaction,” and denounce fear-mongering, but the law of unintended consequences has held up rather well.

If we are concerned by the practical (mostly financial) problems facing same-sex couples that cannot be remedied by private agreement, then I think a better approach would be reciprocal beneficiary schemes.

But I am finishing (with Daniel Suhr ‘08) a paper on interpretation of marriage amendments using Wisconsin as a case study, so the topic is much on my mind.

First, a disclosure. I was a public proponent of Wisconsin’s marriage amendment and based my case on wholly secular grounds without reference to the morality of same-sex relationships. While I appreciate that my church believes such relationships to be morally impermissible, I am not persuaded by that judgment.

Nor do I disagree with Mr. Samis that gay and lesbian relationships, just as heterosexual unions, may — hopefully, will — exhibit the loving and supportive characteristics that he observed between his friends. I have observed the same in my own circles.

But where proponents and opponents of genderless marriage part ways is on the question of whether this resolves the matter. The latter focus not on merely on what may be similar about same-sex and opposite-sex intimacy, but also on what is distinctive.

In my estimation, the most persuasive case against redefinition of civil marriage to include same-sex couples lies in marriage’s public meaning and purpose. Marriage certainly involves the union of people who love and are committed to one another. It certainly involves the provision of certain benefits and protections that facilitate and structure that relationship. But that alone is not what marriage is for.

To the contrary, opponents of same sex marriage adhere to the conjugal model of marriage. Its purpose is to channel relationships between men and women –  who often experience their sexuality in different ways — into a setting which is optimal for the support of the children that these relationships may — often unintentionally — create. It is intended not only to provide benefits and protections to loving and mutually supportive relationships (there are many such relationships that are outside the scope of marriage), but to encourage the channeling of potentially procreative relationships in a certain way.

If you buy this (and there are many who don’t, believing that the decoupling of sexual relationships from procreation and marriage is a good thing), then there is no reason to extend marriage to same-sex couples. Society simply does not have the same interest in channeling gay and lesbian relationships into the same setting.

This argument is not undercut by the fact that not all marriages produce children.  The conjugal model of marriage — and the normative judgment that it is the proper place for sexual relations between men and women — is a norm, not a rule. Those who adhere to the norm, even if they do not have or cannot have children, reinforce it.

This may resolve the equal protection argument, but it doesn’t resolve all questions. Most significantly, it doesn’t quite tell us what would be wrong with extending marriage to same-sex couples, some of whom will be raising children (mostly from previous heterosexual relationships, but sometimes through adoption or artificial reproduction). We still need to know why adherence to the marital norm by same-sex couples would not reinforce it.

It is there that opponents turn back to the public meaning of marriage. That meaning affects not only its legal incidents, but its norms and mores and the way in which people conduct themselves in relationship to it. The argument is that these mores and norms — the “rule of two,” the norm of exclusivity, the presumption of permanence, and the value of fathers qua fathers – are rooted in the particulars of potentially procreative relationships, the need to bridge the sexual divide between men and woman, and a normative judgment about a child’s right to know and be raised, if possible, by her biological parents. It seems unlikely, they argue, that society could change the relationships to which marriage applies and not change its public meanings and norms.

Same-sex marriage would constitute a pubic endorsement of the creation of fatherless or motherless families, not as the best alternative when a child cannot be raised by her own father and mother, but as an equally desirable form of family structure. It is unlikely that this would not further alter our notions about the importance of intact families consisting of a child’s biological parents. It would involve the incorporation into marriage of relationships for which the biological facts that have structured marriage’s norms are absent. It is not clear why this could not affect those norms.

As I said recently at Prawfs, this is an argument that appeals more to people whose intellectual tastes are more Burkean and who are cautious about the unintended consequences of rapid social change.

That would be me.

It apparently would not be the justices of the Iowa Supreme Court.

Fair enough, but I would have appreciated more of an effort to address the arguments that opponents of same-sex marriage actually make. Most of the court’s analysis presumed a “close relationship” model of marriage, as if that model were somehow ordained by the Iowa Constitution. It failed to address — or even acknowledge – the defendants’ argument about the way in which the law of marriage operates, not only by legal fiat, but by the creation of norms. It concluded, in a dismissive footnote, that fathers as fathers do not matter to the well-being of children. What does, it said, is an involved “second parent,” basing its conclusion upon a body of social science evidence that has been subjected to withering criticism and which, at least as I read it, does not come close to “proving” what the Court said it does – much less precluding the state from concluding otherwise.

In an astonshing bit of circularity, it argued that one must engage in heightened scrutiny of laws restricting marriage to opposite sex couples because majorities keep insisting that is what marriage is. (This can, of course, constitute evidence of discrimination only if that insistence is somehow irrational.) In becoming one of the few courts to apply heightened scrutiny to classifications based on sexual orientation, it misstates traditional equal protection analysis regarding the determination of suspect or quasi-suspect classes by engaging in an acontextual analysis of whether sexual orientation is a trait that is unlikely to relate to any legitimate governmental purpose. It assumes, without evidence or prompting by the plaintiffs, that traditional marriage is nothing more than imposition of a religious view and, having assumed that it is, misstates the law regarding religious motivation of secular measures.

Beyond that, it seems to me that the very worst way to redefine marriage or to create an equivalent status for same sex-couples is by judicial fiat. Not only does doing so tax what I believe to be the outer boundaries of  judicial competence and require interpeting legal doctrine in a way that makes it radically indeterminate, it threatens to perpetuate social conflict that may have negotiated a truce through the political process. The suggestion that it could be otherwise recalls the naivete of the joint opinion in Casey v. Planned Parenthood, in which Justices Souter, Kennedy, and O’Connor somehow persuaded themselves that the Court  could call for the “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Courts can, of course, call for anything. It’s quite another matter for it to expect that doing so will quell passionately held beliefs.

As I read Tribe’s book, I was reminded of a story told to me by a friend who was in William Nelson’s Constitutional History seminar at Yale in the mid-1970’s.  Nelson apparently was arguing at that time that the ratification of the Constitution of 1789 actually made very little difference, and had the Articles of Confederation remained in effect, that document would have been interpreted to mean pretty much the same as the Constitution that replaced it came to mean.

Of course, I wasn’t in the class, but I take it that Nelson believed that the constitutional norms that emerged in post-1789 America would have developed with or without any specific constitutional text, and whatever written constitution there was would have been interpreted so that it would embrace those values.  In the alternate timeline it might have been necessary to amend the constitution a bit more frequently than actually occurred, but I suspect that this point is probably correct.

To me, Tribe’s argument that constitutional norms exist independent of the text of the Constitution seems only another variant on this argument. 

In fact, the manner in which he presents the argument illustrates a fundamental difference between constitutional historians and constitutional scholars. Constitutional theorists and constitutional lawyers operate within a paradigm of constitutional argument that assumes that the precise nature of arguments matter and that judicial decisions can be influenced by the logic of constitutional analysis. 

Constitutional historians, on the other hand, stand outside the paradigm and simply try to understand and to explain what is going on.  Historians have long realized that the paradigm is quite self-serving — it creates a role for the constitutional advocate and the constitutional theorist — and that its fundamental premises ultimately fail to jibe with the reality of judicial decision-making.  Historically, judges have been much more likely to reach results in constitutional cases through the felt imperatives of “constitutional” values than by being persuaded by logically constructed arguments or imaginative textual interpretations. 

Every now and then it dawns on a constitutional theorist that the primary paradigm doesn’t really make any sense, and he reports it to his colleagues as a revelation.  Which it isn’t, at least for those who have studied history.  Constitutional historians make this point over and over.  Richard Beeman’s new book on the Constitutional Convention wonderfully illustrates the historical contingency of everything associated with the Constitution of 1789, whether it be the text itself or the ideas that were passing through the brains of various Founders.  The point is not that constitutional norms are meaningless or purely fungible.  Rather, constitutional meaning is an organic concept that evolves over time and which is subject to a variety of restraints.  For some reason, constitutional scholars and constitutional lawyers never seem to catch on.

The problem, of course, is that constitutional advocates are required by the system in which they operate  to argue in terms drawn from inside the paradigm.  Even if you believe that judges decide cases on the basis of culture and common norms and that history rather than logic dictates the resolution of most constitutional disputes, you cannot say that to the judge.  The lawyer has to at least go through the motions of a traditional text-based constitutional argument.  It is as though we tell ourselves one story in private but require that a different one be told in public. 

As law professors, we have to train our students in the art of making acceptable constitutional arguments.  But we should be honest and tell them that the content of constitutional arguments and constitutional truths are two entirely different matters.