Legal Theory Blog

Franklin on the Roberts Court and Facial verus As-Applied Constitutonal Challenges

David L. Franklin (DePaul University - College of Law) has posted Looking Through Both Ends of the Telescope: Facial Challenges and the Roberts Court on SSRN.  Here is the abstract:

This article explores how the Roberts Court has negotiated the choice between as-applied and facial review in its cases, and what those cases tell us about how the justices view the ongoing project of translating constitutional meaning into constitutional doctrine. Part I of the article describes the traditional model of judicial review, which strongly favors as-applied challenges over facial ones, and then canvasses several recent cases in which the Court has reaffirmed its adherence to that model. Part II discusses two categories of cases that have been described as exceptions to the traditional model--overbreadth cases and abortion rights cases--and discovers that the Court has not been especially receptive of late to facial challenges even in these areas. Part III identifies an intriguing phenomenon on the Roberts Court--what I call "facial adjudication in as-applied clothing"--and uses it as the key to discovering that facial review is not nearly as rare as the traditional model would have us believe. The article concludes by suggesting some reasons why this might be so, primarily an increased focus by some justices on substantive constitutional doctrines that necessitate an inquiry into legislative purpose.

Illuminating.

Finkelman on Foreign Law & American Constitutional Interpretation

Paul Finkelman (Albany Law School - Government Law Center) has posted Foreign Law and American Constitutional Interpretation: A Long and Venerable Tradition (NYU Annual Survey of American Law, Vol. 63, 2007-2008) on SSRN.  Here is the abstract:

This article offers a correction to the arguments of Justices Scalia and Thomas that the Supreme Court should not use foreign law (except perhaps in interpreting treaties), because it would violate the original intent of the Framers.

Rossi on Nondelegation

Jim Rossi (Florida State University College of Law) has posted Nondelegation Doctrine (ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES, David S. Tanenhaus, ed., Macmillan Reference USA, 2008) on SSRN.  Here is the abstract:

This encyclopedia entry discusses the history and current relevance of the U.S. Supreme Court's nondelegation doctrine.

Highly recommended.

Sunstein on the Constitutionality of OSHA

Cass R. Sunstein (Harvard University - Harvard Law School) has posted Is OSHA Unconstitutional? (Virginia Law Review, Forthcoming) on SSRN.  Here is the abstract:

Under the Occupational Safety and Health Act, the Secretary of Labor is authorized to issue whatever standards are reasonably necessary or appropriate to provide safe or healthful places of employment. More than any other provision in federal regulatory law, this language is subject to a plausible nondelegation challenge, because it seems to ask the Secretary to choose among a wide array of intelligible principles for standard-setting. The constitutional challenge raises serious and unresolved questions for both regulatory policy and administrative law. In answering those questions, courts have three principal alternatives. The most aggressive approach would be to invalidate the statute in the hopes of encouraging, for the first time, sustained legislative deliberation about the proper content of occupational safety and health policy. The most modest approach, rooted in the Avoidance Canon, would be to construe the statutory language to produce floors and ceilings on agency action; that approach would require the Secretary to ban significant risks while forbidding the Secretary from regulating trivial or de minimis risks and also requiring the Secretary to show that any regulations are feasible. The third and preferable approach, also rooted in the Avoidance Canon, would be to construe the statute so as to require the agency to engage in a form of cost-benefit balancing. Such a construction would have the advantage of promoting greater transparency and accountability at the agency level. At the same time, it would raise difficult questions about the precise nature of such balancing in the context of occupational safety policy and also about legal constraints on agency assessment of both costs and benefits. Because of the distinctive nature of workplace safety, the best approach would give the agency considerable flexibility on questions of valuation while also permitting serious attention to distributional factors.

And from the paper:

There is a final puzzle, and it raises a large issue with respect to the relationship between courts and the administrative state. That issue involves the status of narrowing constructions, designed to avoid nondelegation challenges by construing agency discretion to be narrow rather than broad.147 Such narrowing constructions are not uncommon,148 and I have suggested that the cost-benefit approach is best justified as an example. But the whole approach raises a serious question. The problem, in sum, is that if, as American Trucking teaches, agencies are not permitted to rescue open-ended delegations through subsidiary policymaking in the guise of interpretation, courts should not be permitted to do so either.149 The question therefore arises: What is the status of the Avoidance Canon, in the specific context of a nondelegation challenge, in the aftermath of American Trucking?

At first glance, nothing in American Trucking should endanger the use of the Avoidance Canon. The Court’s suggestion was merely that if a statute does confer open- ended authority on an agency, the agency cannot eliminate that problem by deciding how much discretion to exercise. “The idea that an agency can cure an unconstitutionally standardless delegation of power by declining to exercise some of that power seems to us internally contradictory. The very choice of which portion of the power to exercise–that is to say, the prescription of the standard that Congress had omitted–would itself be an exercise of the forbidden legislative authority.”150 The new nondelegation doctrine, repudiated by American Trucking, asked agencies to develop “subsidiary policy” by which to discipline their discretion under open-ended statutes. The reason is that the development of subsidiary policy counts as an exercise of discretion. It is not “interpretation.”

If American Trucking is understood in this way, it certainly suggests that courts cannot rescue a statute from a nondelegation challenge if they are themselves making subsidiary policy. But when a court is legitimately selecting an interpretation that narrows agency discretion, it is not really making subsidiary policy, certainly not in the sense that the court of appeals deemed sufficient, and the Supreme Court irrelevant, in American Trucking. Instead a court that properly uses the Avoidance Canon is relying on standard legal materials to hold that of two or more plausible interpretations of a text, the agency is bound by the one that gives it limited rather than open-ended authority. An approach of this kind would not be legitimate if the standard legal materials left both court and agency at sea – if the narrower interpretation does not qualify as an interpretation at all. But if courts can fairly insist on that interpretation, as a reasonable way of coming to terms with what Congress has actually said, American Trucking creates no obstacle. 

Here, then, is a possible problem with the approaches I have outlined. Suppose that the relevant interpretation is really an exercise in policymaking – that courts are choosing an intelligible principle not on the basis of anything that Congress has done, but as a means of implementing what judges see as the best way to come to terms with a difficult problem. Under American Trucking, the “floors and ceilings” approach, and the cost-benefit approach, would not cure the nondelegation problem if they amounted to judicial policymaking. But I have argued that on the basis of the standard legal materials, both approaches are legitimate readings of the legal materials in light of the Avoidance Canon. If this argument is correct, then judicial insistence on one or another should not be taken as running afoul of the Court’s rejection of the new nondelegation doctrine.

A deeply interesting treatment of an important question--very highly recommended. 

I am not fully convinced by Sunstein's argument at the end of the paper.  Forcing "cost-benefit analysis" as a narrowing construction requires courts to make the crucial policy choice (between cost-benefit analysis on the one hand, and approaches that would privilege worker safety, on the other hand) in a way that is permitted (but not required) by the statutory text.  That is, the Avoidance Canon may require an "intelligible principle" but judicially-imposed cost-benefit analysis is only one of several possible "intelligible principles" that courts might impose.  Does it make sense to have courts (as opposed to the agency) make the choice as to which of the available "intelligible principles" should be chosen?  One way to think about this issue is via the following hypothetical--suppose that the Court were to mandate cost-benefit analysis and the agency were to reject that choice and adopt an alternative principle.  (Chevron immediately comes to mind.)

But I am really just thinking out loud here.  Read Sunstein!

Young on Motive Analysis

Gordon Gregory Young (University of Maryland - School of Law) has posted Justifying Motive Analysis in Judicial Review (William & Mary Bill of Rights, Vol. 17, No. 1, pp. 191-261, 2008) on SSRN.  Here is the abstract:

Motives concern us in ordinary life and in the law of torts and crimes, and that concern is justified by consequentialist ethics. Despite occasional judicial protestations, motive analysis pervades large parts of constitutional law. Illegitimate motives aimed at suspect classes, or "designed to strike" at any number of rights identified as fundamental, presumptively invalidate the official actions that they animate. The consequentialist arguments for the use of motive review in this class of cases are relatively simple. Such illegitimate official motives tend to cause bad distributions of tangible benefits and burdens, or cause direct cognitive or emotional harm to the targets or derision or denigration. Difficulties emerge, along with some potentially generative possibilities, in a set of cases which includes U.S. Department of Agriculture v. Moreno, Cleburne v. Cleburne Living Center, and argulably Romer v. Evans and Lawrence v. Texas. Those cases involve neither suspect classes nor fundamental rights, yet in each case, the Court invalidated political branch action on grounds of more general destructive motives. Perhaps it is this broader normative concern that undergirds motive law in general.

Can motive analysis be justified in this set of cases on consequentialist grounds? Or is the only explanation deontological - that such actions are wrong in themselves, regardless of their consequences? Doubts about consequentialist justification are legitimate. In cases involving more ordinary interests, normally consigned to rational basis review, almost any set of consequences will be accepted by courts unless an illegitimate motive is found. Thus the deep concern seems to be with some inherently morally tainting property of illicit motives, not with the consequences of such motives. Despite these appearances, this Article argues that consequentialism is the moral theory best fitting these cases. Along the way, it explores other neglected issues connected with motive analysis, including whether judicial motive talk is inevitably about mental states, and the extent to which government actions can be prohibited based on the psychic harm caused by expression without unduly restricting the ability of governments to speak.

The paper assumes that deontological & consequentialist ethics provide the only perspicuous frameworks for analysis.  Young writes:

It is difficult to see how the notion of virtue ethics might be translated to apply, in some convincing way, to the actions of individual and collective government officials. Though the effort might be interesting, and even rewarding, nothing suggests that virtue ethics is a good fit with the cases dealing with the role of motive in constitutional law.

There is, of course, a growing literature that does "apply" "virtue ethics" "to the actions of individual and collective government officials."  For an introduction to my own work in this vein see Virtue Jurisprudence: A Virtue-Centered Theory of Judging and for a collection of essays, see the anthology Virtue Jurisprudence.  I should think that virtue ethics (rather than deontology) best illuminates the evaluative significance of motive in decisionmaking by public officials.

Primus on the Limits of Intepretivism

Richard Primus (University of Michigan Law School) has posted Limits of Interpretivism (Harvard Journal of Law and Public Policy, Forthcoming) on SSRN.  Here is the abstract:

As a matter of history, the term "interpretivism" was current only for a short time in the 1970s and has since been largely replaced by the term "textualism." But "interpretivism" still survives, partly as a matter of rhetoric. This paper responds to the contention of one self-described interpretivist (Justice Stephen Markman of the Michigan Supreme Court) that interpretivism is a strategy for constitutional interpretation that follows the constitutional text, respects original meanings, establishes known and stable rules in advance of particular cases, and keeps judges within their traditional role. The paper argues that the foregoing goals are regularly in tension with one another. In the rhetoric of judicial politics, it is common for one side to claim to be doing all of these things while the other abandons them all. In reality, all judges must frequently compromise some of these aims to better achieve the others, whether consciously or otherwise.

And from the text:

Originalism also has an uneasy relationship with traditional‐ ism as a matter of jurisprudential method. A method of judging  is traditional if it calls on judges to decide cases in the ways  that were dominant among their predecessors. On that under‐ standing, originalism is less traditional than some of its chief  rivals. In America, the most traditional form of jurisprudence— the form that has dominated among judges through the genera‐ tions, and the form that each new generation of entrants into  the legal profession learns as it is inducted into the culture of  the guild—is not originalism but rather common‐law judging.  The leading spokesperson for this point is Justice Scalia, who  regards  common‐law  judging  as  the  foil  for  originalism.45  Originalism, Scalia explains, requires that judges overcome our  common‐law traditions, by which the judge is partly a policy‐ maker and not just the agent of the legislature. That overcoming is a departure from tradition, perhaps even a revolutionary  one. Originalism may or may not be a better theory of judging  than the one the common law provides, but it is not more traditional. 

This is not to say that originalist judging is foreign to our  traditions. American judges have long included considerations  of original meaning among various other kinds of jurispruden‐ tial methods when deciding cases, especially when the cases  arise under constitutional or statutory authority. Considering  original meanings as one of several sources of law is accordingly a traditional practice in constitutional and statutory cases.  But traditional jurisprudence in such cases does not rely on  original meaning, or on text, to the exclusion of other sources of  law. Even in constitutional and statutory cases, judges have  also long engaged in many other forms of reasoning, including  some to which Justice Markman seems quite opposed. Making  arguments about James Madison is indeed a traditional element of American constitutional law, but so is making arguments about justice.

This short and illuminating essay is highly recommended.

Shinar on Constitutions in Crisis

Adam Shinar (Harvard University - Harvard Law School) has posted Constitutions in Crisis: A Comparative Approach to Judicial Reasoning and Separation of Powers (Florida Journal of International Law, Vol. 20, p. 115, 2008) on SSRN.  Here is the abstract:

In the ever growing literature on emergencies, writers mostly focus on normative questions. Yet the structural aspect, investigating the interactions between institutions, is often overlooked. This article seeks to add to the institutional discourse by looking at emergencies through an institutional lens, situating the resolution of legal questions within the separation of powers framework. By looking at judicial decisions in emergencies, I argue that most of them can be explained not according to constitutional considerations of substantive individual rights, but by the position the courts assume within the broader governmental framework. In a presidential system, such as the one in the United States, courts are more likely to perceive themselves as enforcing the separation of powers scheme, rather than as protectors of individual rights. However, when looking at how emergencies are handled in a parliamentary system, in this case Israel, the courts tend to assume a more active role, often employing substantive reasoning. The comparison between institutions in different regimes thus suggests an often missed insight: choosing a particular separation of powers scheme does not only shape the inter-institutional discourse, but also impacts the type of reasoning institutions employ and the kinds of decisions they produce.

Rosenthal on Eskridge on Same-Sex Marriage

Lawrence Rosenthal (Chapman University - School of Law) has posted The Chapman Dialogues: Same Sex Marriage - Response to Professor Eskridge (Chapman Law Review, Forthcoming) on SSRN.  Here is the abstract:

This essay, a revision of remarks originally delivered as part of the Chapman Dialogues series at Chapman University School of Law, is a response to the remarks of Professor William Eskridge of Yale Law School making to case for the recognition of a constitutional right to same-sex marriage. The essay argues that the judicial establishment of a right in the face of deeply entrenched social norms, prior to the time at which the political groundwork necessary for the enforcement of the right has been laid, risks a powerful and ultimately counterproductive backlash.

Pettys on a Written Constitution

Todd E. Pettys (University of Iowa - College of Law) has posted The Myth of the Written Constitution (Notre Dame Law Review, Forthcoming) on SSRN.  Here is the abstract:

Many Americans have long subscribed to what this Article calls the myth of the written constitution - the claim that the nation's constitution consists entirely of those texts that the sovereign American people have formally ratified, and the claim that the will of the American people, as expressed in those ratified texts, determines the way in which properly behaving judges resolve constitutional disputes. Drawing on two different meanings of the term myth, this Article contends that neither of those claims is literally true, but that an attachment to those claims serves at least three crucial functions. Subscribing to the myth helps to ease the tension created by the American people's paradoxical beliefs that they are morally entitled to govern themselves and that human beings often cannot be trusted to behave in morally praiseworthy ways; it helps to ease the tension between Americans' commitment to self-rule and their attraction to judicial supremacy; and it helps to secure the strong sense of nationhood that so many Americans deeply desire. The Article suggests that embracing the myth of the written constitution for such instrumental purposes need not be seen as a shameful act of self-delusion, despite the fictive qualities of the myth's claims. So long as courts and scholars maintain the necessary conditions, the American people can responsibly embrace the myth as an act of "poetic faith."

And from the text:

Regardless of whether they emphasize the framers’ original intentions or the ratified texts’ original meanings, originalists typically share the conviction that the ratified texts’ demands do not evolve over time.   Originalists insist that those texts’ requirements remain static until the sovereign American people alter the texts using the procedures described in Article V of the 1787 document.   In the eyes of originalists, therefore, there are only two occasions when it is appropriate for the nation’s courts to change their constitutional bearings: (1) when, after a regrettable period of misdirection, the courts conclude that they have more accurately perceived the framers’ intentions or the texts’ original meanings, or (2) when the texts themselves have been formally amended.  Many of the most noteworthy and widely accepted changes in the courts’ constitutional understandings, however, have not followed either of those scripts. One cannot reasonably argue that most of the great shifts in the courts’ constitutional bearings have been provoked by a rediscovery of the framers’ intentions or the ratified texts’ original meanings.   Consider, for example, the vast expansion of federal regulatory power that occurred when the New Deal Court finally capitulated to the nationalistic ambitions of the federal government’s elected officials.   The 1787 text was intended and understood by the founding generation to be remarkably anti-nationalistic—a fact we often conceal by glorifying a few of the Marshall Court’s rulings, ignoring much of the nineteenth century, and pretending that the New Deal Court rediscovered the founding generation’s nationalistic vision and placed the country back on the path from which the Court had briefly and regrettably diverted it.   Far from returning to the founders’ vision like a repentant prodigal child, the New Deal Court broke with the nation’s original constitutional understandings by permitting the federal government to assume regulatory powers that the founding generation scarcely could have fathomed.

A few observations here:

First, I do not know of any originalist who claims that the entire corpus of American constitutional doctrine does, in fact, conform to originalist theory.  That is, originalism is rarely offered as a "descriptive theory" of American constitutional practice (especially the practice of the Supreme Court).  Rather, most originalists conceive of originalism as offering a standard for evaluation of the legality or legitimacy of constitutional practice (e.g., Supreme Court decisions, legislation, executive practice, etc.).  It is seems quite peculiar to suggest that originalists should be embarrassed by the observation that the New Deal jurisprudence may not conform to the original meaning of the Constitution.

Second, this analysis of originalism seems to ignore one of the two most important developments in originalist theory--the distinction between interpretation and construction.  (See Legal Theory Lexicon 063: Interpretation and Construction)  (Pettys does cite Barnett and Whittington, the most important theorists elaborating the interpretation-construction distinction, but fails to discuss this aspect of their work.)  This distinction is crucial to understanding how originalists conceptualize the relationship between the written text of the Constitution and the constitutional jurisprudence of the Supreme Court.  The core of originalism (which is actually a family of related theories) is what I have called the "fixation thesis"--the linguistic meaning or semantic content of the constitution was fixed at the time of origin.   "Constitutional interpretation" is the activity of ascertaining the linguistic meaning of the constitutional text.  But many provisions of the constitution are "vague" (in the technical sense that they admit of borderline cases, see Legal Theory Lexicon 051: Vagueness and Ambiguity).  Once we have determined that the original linguistic meaning of a constitutional provision is vague, then interpretation must exit the stage (it has done all the work it can do), and "constitutional construction" makes its entrance.  "Construction" provides supplementary rules or procedure that permit that application of vague provisions to particular borderline cases.  The "New Originalism" or "Original Public Meaning Originalism" thus embraces the idea that the content of constitutional doctrine cannot be fully determined by the original meaning.  Because constitutional litigation tends to focus on precisely those issues that the the text underdetermines, much of the disputed terrain of constitutional doctrine falls into what I call "the construction zone."

In other words, it seems very doubtful that all or most sophisticated contemporary originalists embrace what Pettys calls "the myth of the written constitution."  Of course, they do not deny that there is a written constitution.  And they embrace the idea that the written constitution ought to constrain constitutional practice.  But it is simply false, I think, to argue that they make the further claim that the full content of constitutional doctrine either is or should be fully determined by linguistic meaning of the text as it was fixed at the time each provision was framed and ratified.  This aspect of originalist theory is comparatively new--Whittington's book Constitutional Construction: Divided Powers and Constitutional Meaning was published in 2001 and Barnett's Restoring the Lost Constitution: The Presumptions of Liberty was published in 2003.  Nonetheless, I should think that at this point, scholarly critics of originalism are fairly taken to task for failing to acknowledge to distinction if they purport to discuss the scholarly literature.

My take on this matters is found in Semantic Originalism.

Read Pettys.

Barnett on Constitutional Assumptions

Randy E. Barnett (Georgetown University Law Center) has posted The Misconceived Assumption About Constitutional Assumptions on SSRN.  Here is the abstract:

Both originalists and nonoriginalists alike often assume that background assumptions widely held when the Constitution or its amendments were enacted are part of the original meaning of the text. Originalists sometimes appeal to these background assumptions to render the meaning of more abstract words or phrases more determinate; nonoriginalist point to odious or outmoded assumptions as proof that original meaning is objectionable and should be rejected.

In this paper, I examine the proper role of background assumptions in constitutional interpretation when ascertaining the meaning of the terms, and in constitutional construction when applying this meaning to particular cases and controversies. Rather than present a normative argument on behalf of originalism, I merely try to identify what the original meaning of the text really is-in particular, the circumstances in which background assumptions become a part of that meaning. While this analysis should be of obvious interest to originalists, it should also be of interest to any nonoriginalist who believes that the original meaning of the text is at least one factor or "modality" of constitutional interpretation to be balanced against other considerations.

In Part I, I explain how express and implied in fact terms provide the meaning of both written contracts and written constitutions. In Part II, I distinguish this meaning of the text from the background assumptions that can result in the failure of a contract when circumstances arise about which the text is silent. Unlike contracts, however, with constitutions "failure" is not an option. Further, while background assumptions can be relevant to interpreting the meaning of ambiguous terms in both contracts and constitutions, most sustained disputes over constitutional terms concern, not the interpretation of ambiguity, but the construction of terms whose meaning is vague.

In Part III, I consider how one's approach to the construction of vague terms will depend on one's theory of constitutional legitimacy-that is, what makes a constitution "binding." If, like contracts, the legitimacy of constitutions is based on original consent of the governed then, as with contracts, background assumptions can be viewed as silently conditioning that consent. On the other hand, if constitutional legitimacy is based on the justice of imposing laws on a nonconsenting public, then odious background assumptions are irrelevant to construing vagueness. This divide is illustrated by the antebellum debates over the constitutionality of slavery. Finally, in Part IV, I apply this analysis to three background assumptions: (1) that there are unenumerated natural rights, (2) that there is an unenumerated police power of states, and (3) that certain interpretive methods would be employed by courts.

Highly recommended.  Download it while its hot!