[Show abstract][Hide abstract] ABSTRACT: These are two introductory chapters from a book entitled "On Constitutional Disobedience" to be published by Oxford University Press. The book argues that we should reject the notion that we have an obligation to obey the Constitution.
[Show abstract][Hide abstract] ABSTRACT: In his great biography of President Andrew Jackson, Arthur Schlesinger, Jr. celebrated Jackson’s defense of the rights of states and opposition to federal power. Yet as a mid-twentieth century liberal, Schlesinger was a strong supporter of the federal government and an opponent of states’ rights. Was Schlesinger’s position inconsistent? He did not think so, and neither does the author. In Jackson’s time, an entrenched economic elite controlled the federal government and used federal power to dominate the lower classes. State governments served as a focal point for opposition to this domination. By mid-twentieth century, the federal government was an engine for redistribution and racial justice. States’ rights rhetoric served the interests of segregationists and reactionaries.
Schlesinger’s example poses an important challenge for those who want to generalize and depoliticize the argument about federal versus state power. The argument about federalism is, or at least should be, deeply contextual, and it is political to the core. In different times and places, federalism has differing relationships with substantive justice and, in all times and all places, people disagree about what counts as substantive justice. What we should be doing, therefore, is talking about our disagreements about substantive justice—about the appropriate role of markets and government, about redistribution and property rights, and about our obligations to the poor and individual freedom—instead of changing the subject to talk about federalism.
[Show abstract][Hide abstract] ABSTRACT: In this brief essay, I attempt to accomplish two things. In Part I, I defend my proposed constitution against its putative liberal critics. In Part II, I argue that given contingent but highly plausible empirical assumptions, the differences between my constitution and a liberal constitution are less dramatic than one might suppose. There are often sound, nonliberal grounds for supporting institutional arrangements that appear liberal. It turns out, then, that liberalism is both less attractive (Part I) and less necessary (Part II) than its defenders suppose.
[Show abstract][Hide abstract] ABSTRACT: The starting point for this essay is the claim that if the texts that critical scholars studied are unstable over time, then this must also be true of the studies themselves. There is no reason to suppose that the critical perspective, uniquely among all possible perspectives, reflects timeless and contextless truth. The question I want to ask, then, is what meaning the critical perspective has for us now in our new and dramatically transformed environment. I proceed in four parts. First, I address the meaning that critical scholars attributed to constitutional law in the late twentieth century. Second, I describe some of the features of the situation that produced this meaning. Third, I describe salient features of the current constitutional situation and how it differs from the situation from which critical constitutionalism emerged. Finally, I offer some suggestions for what critical constitutionalism means today.
[Show abstract][Hide abstract] ABSTRACT: In this essay, written for a symposium on the work of Mark Tushnet, I examine Tushnet’s effort to defend popular constitutionalism in his powerful and subtle book entitled ATaking the Constitution Away from the Courts,” I ask whether the book succeeds in reconciling constitutionalism with leftism. If there is anyone who could accomplish this task, it is Tushnet. He is without question our most thoughtful constitutional leftist. And yet, the book, at least taken at face value, fails to achieve its goal. To the extent that the book argues for constitutionalism, it abandons leftism, and to the extent it is leftist, it abandons constitutionalism. Tushnet=s proposal can be both leftist and constitutional only by reconceiving what constitutionalism amounts to in ways I suggest at the conclusion of the essay. The failure to reconcile leftism with constitutionalism as it is more commonly understood teaches us something important: If Tushnet cannot produce this synthesis, then no one can.
[Show abstract][Hide abstract] ABSTRACT: This paper explores exit strategies from our policy of hyper-incarceration. On the theory that the underlying causes of the policy are firmly entrenched, it focuses instead on disrupting the political micro-processes that make the policy seem acceptable. Part One describes these micro-processes. Parts Two through Four outline three forms of politics that might disrupt them: a politics of amelioration, a politics of transformation, and a politics of accommodation. Part V assesses the available choices for what is to be done.
[Show abstract][Hide abstract] ABSTRACT: Is constitutional judicial review a necessary component of a just polity? A striking feature of the current debate is its tendency to proceed as if the question could be answered in the same way always and everywhere. Defenders of constitutional review argue that it is a conceptually necessary feature of constitutionalism, the rule of law, and the effective protection of individual rights. Critics claim that it is necessarily inconsistent with progressive politics and democratic engagement. Largely msising from the debate is a fairly obvious point: Like any other institution, constitutional review must be evaluated within a particular temporal, cultural, and political context.Part I of this article lays out the groundwork for my discussion by separating out several questions that are too often conflated. It addresses the distinction between arguments for constitutionalism and for judicial review, between arguments for judicial review grounded in political and substantive justice, and among arguments for different types of judicial review. The Part concludes that the embrace of constitutioanlism, the choice between substantive or political justice, and the choice among different types of judicial review all depend upon context.Given the conclusions in Part I, the argument in Part II will come as no surprise. The wisdom of providing for judicial review turns on the type of judicial review we are talking about and on the relationship between judicial power on the one hand and constitutionalism, political, and substantive justice on the other. All of these factors are different in different times and places. It follows that judicial power to invalidate statutes and executive actions is a contingent good.A brief coda discusses the implications of this argument for the discipline of comparative constitutional law.
[Show abstract][Hide abstract] ABSTRACT: The Ninth Amendment - our resident anarchic and sarcastic "constitutional jester"- mocks the effort of scholars and judges alike to tame and normalize constitutional law. It is not as if the stern disciplinarians haven't tried. We now have two generations worth of painstaking, erudite, and occasionally brilliant scholarship that attempts to rein it in. Yet the amendment stubbornly resists control. It stands as a paradoxical, textual monument to the impossibility of textualism, an entrenched, settled instantiation of the inevitability of unsettlement. If it did not exist, constitutional skeptics would have had to invent it. This essay has two parts. In Part I, I present a new and, I hope, persuasive, originalist account of the Ninth Amendment. My claim is that the Amendment deliberately leaves unsettled the status of unenumerated rights. Because of the Ninth Amendment, the Constitution does not "deny" or "disparage" these rights, but neither does it embrace or imply them. The amendment puts off to another day a final reckoning of the extent to which we are bound by constitutional text. Although I use originalist methodology in Part I, I do not want to be understood as embracing originalism. Instead, this Part is an exercise in internal critique. As Part II explains, the Ninth Amendment states a truth that we would have to deal with whether or not it was part of the original text: No matter how comprehensive, no text can control the force of ideas and commitments that lie outside the text. This simple truth leaves the status of liberal constitutionalism permanently and inevitably unsettled. The day of final reckoning will never arrive.
California Law Review 01/2010; DOI:10.2307/25799964 · 1.86 Impact Factor
[Show abstract][Hide abstract] ABSTRACT: Suppose that you were Colin Powell. Would you have resigned your office rather than go before the United Nations Security Council to make the case for the invasion of Iraq? Or would you have remained silent, swallowed your doubts and, like a good soldier, obeyed your orders?This essay argues that the resignation decision is hard and that words like "duty," "ethics of public service," and "sound public policy" do not capture all of the difficulty. Instead, the best defense of public resignation conceptualizes it as a radically free act -- a rebellion against normal constraints, including the constraints of duty and ethics.Part I of the essay sets out the plausible alternatives open to public figures who find themselves in disagreement with the policies pursued by the government. It also provides historical examples of officials who have chosen each of the alternatives. Parts II and III explore the case for each of the alternatives on instrumental and non-instrumental grounds. Part IV defends the concept of resignation as radical rupture. Part V discusses the role that law and legal institutions play and should play with respect to resignation.
[Show abstract][Hide abstract] ABSTRACT: A contradiction lies at the core of the modern law of speech and property. The contradiction is captured by four propositions, all of which are widely accepted, but all of which cannot be true. Proposition 1: Freedom of speech is not subject to political revision.Proposition 2: Within broad limits, property entitlements are subject to political revision.Proposition 3: The freedom of speech does not include the right to use another person’s property in order to convey one’s messageProposition 4: All speech requires the use of some property.These four propositions cannot be reconciled. If it is true that economic entitlements, including most property rights, are subject to political revision, and if it is true that there is no right to use another’s property for speech, and if it is true that speech requires property, then it cannot also be true that speech rights are immune from political revision. This article explores the ramifications of this simple but puzzling syllogism, using the Supreme Court’s decision in Boy Scouts of America v. Dale as a central example. It concludes that contradictions in Supreme Court doctrine at the intersection of property and speech law make both our speech and property regimes less stable than they might at first appear to be.
[Show abstract][Hide abstract] ABSTRACT: Although few people wanting to learn about the entrapment defense would start their research by reading Lochner v. New York, this short paper, written for the Criminal Law Conversations Project, argues that it is with Lochner that a real understanding of entrapment doctrine must begin. Speaking broadly, Lochner stands for a jurisprudential tradition that equates market allocations with freedom and treats redistributive departures from market baselines as coercive and problematic. When the police entrap a suspect, they redistribute the cost of crime control from outcomes produced by the “ordinary” market for criminal acts. Instead of accepting privately established market rates for crime as a baseline, they influence the market, thereby shifting the cost of deterrence onto people who might not otherwise become entangled with the criminal law. When judges, in turn, resist these efforts, they are insisting that the market distributions are natural and sacrosanct. They are, in other words, rejecting the critique of Lochner that has been widely accepted elsewhere in the law.
[Show abstract][Hide abstract] ABSTRACT: "Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court."The irony, of course, is that Marbury v. Madison, itself, "made" a political question, and the answer the Court gave was deeply political as well. As everyone reading this essay knows, the case arose out of a bitter political controversy, and the opinion for the Court was a carefully crafted political document - "a masterwork of indirection," according to Robert McCloskey's well-known characterization, "a brilliant example of Chief Justice Marshall's capacity to sidestep danger while seeming to court it, to advance in one direction while his opponents are looking in another."The purpose of this essay is to explore the many layers of this irony. I will argue that despite all of the premature reports of its demise, the political question doctrine is as central to modern constitutional adjudication as it was to the outcome in Marbury at the beginning of our constitutional history. Moreover, the irony at Marbury's core continues to haunt the doctrine two hundred years later. Now, as then, application of the doctrine requires courts to resolve political questions - the very activity the doctrine purports to avoid. Now, as then, this contradiction mocks Chief Justice Marshall's confident assertion that "[i]f some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction." As we shall see, the effort to make the political question problem into a "doctrine" - to bound it by a rule of law - is a fool's errand. The difficulty posed by political question jurisprudence is not that the court has sometimes politicized law, but that it has never successfully legalized politics.
[Show abstract][Hide abstract] ABSTRACT: Lawrence v. Texas creates a crisis for inclusive constitutionalism. Too often, advocates of inclusion and tolerance wish to include only those ideas and groups with which they agree. The test for true inclusion and tolerance, however, is whether we are willing to protect groups when they engage in conduct of which we disapprove. It follows that the boundaries of inclusion cannot be established simply by moral argument; yet, any plausible version of constitutional law must use some method to bound the people and activity that it protects. Defenders of inclusive constitutionalism have not been successful in identifying a method, independent of moral argument, for bounding constitutional rights. This difficulty can best be addressed by modifying our ambitions for constitutional law. Instead of a method for requiring agreement, constitutional law might be reconceptualized as a method for destabilizing all boundaries, thereby reconciling groups with widely different moral views to the political order.
[Show abstract][Hide abstract] ABSTRACT: This essay is a response to Supreme Democracy: Bush v. Gore Redux, an essay by Lani Guinier (2002).
The author critiques Professor Lani Guinier’s essay through a discussion of the maldistribution of wealth in American society, which he argues is accepted by American people thanks to the existence complex structures that allow them to distance themselves from it. He discusses four legitimation structures as he critiques this essay.
Professor Guinier focuses on the belief in meritocracy. For our purposes, we might define a believer in meritocracy as someone who thinks that, in a given society, people get more or less what they deserve. Hence, if there are people in our society who are poor or hungry, powerless or on the streets, they are in these predicaments because of something that they did or failed to do. In short, they are there because they deserve to be there.
There is also a commitment to economic efficiency supports the status quo. Unlike believers in meritocracy, people who defend the efficiency hypothesis will sometimes concede that markets operate unfairly--that is, when they are willing to concede that the concept of fairness has any analytic content at all. They insist on the inevitability of market distributions on the ground that any effort to redistribute or regulate will result in a reduction in incentives and destruction of gains from trade, thereby making the total pie smaller.
Closely tied to the efficiency argument is the second elite legitimating structure--the rhetoric of impotence. Here, the claim is that economic maldistribution is a complex and difficult problem understood only by experts. According to this view, the absurd notion that what makes people poor is the absence of money, and that poverty might be alleviated by the provision of money, deserves nothing but contempt. Instead, it is claimed, the problem is tied to broad societal, economic, and cultural forces over which we have little or no control. Efforts to deal with it are bound to have unintended and counterproductive consequences, and people who think otherwise are unrepentant and unwashed radicals whose views are not worthy of serious consideration.
The last legitimation structure the author discusses is the belief in democracy. When democratic rhetoric is deployed to support the status quo, the claim is that the current distribution of power and wealth is justified because it is produced by a political process that is open to all. Thus, even if some people think that these outcomes are substantively unfair, it is nonetheless arrogant and elitist to insist that their substantive views should prevail. In a culture with widely divergent substantive views, the only fair way to resolve disputes is through democracy. Conversely, if a dispute has been resolved democratically, mere substantive disagreement with the outcome does not justify resistance.
[Show abstract][Hide abstract] ABSTRACT: With regard to the first question, Elster's own argument suggests that the boundaries among interest, passion, and reason are at least permeable. Each motive masquerades as the other or becomes transmuted into the other. Moreover, once one takes the consistency and imperfection constraints into account, the external manifestations of the different motives will often be identical. A positivist, who believes that all that matters are external manifestations that can be measured or observed, might therefore hold that the distinctions Elster analyzes are ones that are hardly worth worrying about.
Legal Theory 05/1997; 3(02):177 - 181. DOI:10.1017/S1352325200000719
[Show abstract][Hide abstract] ABSTRACT: My thesis is that the left's problem regarding criminal justice is at least partially of its own making. Specifically, the problem stems from deep contradictions in the left's positions. Progressives have not one position on crime, but at least seven different ones, and these positions cannot be reconciled. Most of this essay consists of a taxonomy of conflicting progressive views on criminal justice. Before I begin, however, I need to qualify my thesis in three important ways. First, as will become obvious, what I present below amounts to no more than brief descriptions - really evocations - of attitudes, arguments, and predispositions, rather than anything like the detailed analysis that these positions deserve. My purpose is not to offer a full defense or critique of the views I describe, but to demonstrate the ambivalence and contradiction that are hallmarks of leftist and liberal analysis of crime and punishment. Second, crime is not only an academic preoccupation; it is also a subject of political debate. It is important, therefore, to distinguish between what might loosely be labeled highbrow positions and low- or middlebrow positions on criminal justice. In much of this essay, I will be discussing highbrow positions; at the end, I will turn briefly to low- and middlebrow views. Finally, because I will present this taxonomy as if I were an outsider, it is important to make clear at the outset that I consider myself a criminal justice progressive. The confusion I present here is, therefore, my own confusion, and the map I outline plots my own uncertainty.
[Show abstract][Hide abstract] ABSTRACT: In his provocative, courageous, and original new book, "Against Obligation: The Multiple Sources of Authority in a Liberal Democracy," Abner Greene argues that there is “no successful general case for a presumptive (or ‘prima facie’) moral duty to obey the law.” In my own book, "On Constitutional Disobedience," I argue that there is no moral duty to obey our foundational law – the Constitution of the United States. This brief article, prepared for a symposium on the two books to be published by the Boston University Law Review, I address three issues related to these claims. First, I discuss what seem to me to be important ambiguities in and problems with Professor Greene’s argument. Second, I defend my own stance against criticisms advanced by Greene and others. Third, I explore the relationship between his claims and mine.
[Show abstract][Hide abstract] ABSTRACT: There is a chance that Bush v. Gore may begin a process of laying a more attractive and realistic foundation for constitutionalism than the Official Story provides. The very fact that the Court is not politically independent and that it could not settle the matter in a disinterested, apolitical fashion might set us down a path toward a more mature version of constitutional law. The politically tendentious character of the Coon's reasoning demonstrates that our core constitutional commitments are subject to political manipulation. Ironically, public understanding of this malleability makes our politics more, rather than less, inclusive. It does so by suggesting that constitutional law, properly understood, does not settle disputes by ruling certain substantive positions out-of-bounds. Thus, losers in our political disputes need not believe that they are outside the boundaries of respectable argument, defined by an exclusionary constitution. Instead, they may come to understand that they too can utilize the magnificently empty rhetoric of constitutional law to achieve their ends. The upshot is continuing and unresolved struggle over the meaning of American democracy. It is this possibility of struggle, rather than a legally definitive resolution, that encourages people with incompatible political views to remain in an ongoing and peaceful dialogue with each other.