The Eidolon: Thoughts on Solum's New Piece

By a route obscure and lonely,

Haunted by ill angels only,

Where an eidolon named Night,

On a black throne reigns upright,

I have wandered home but newly

From this ultimate dim Thule.

Maybe it's because Halloween is upon us that as I read Larry Solum's terrific new piece, The Effects of NFIB v. Sebelius and the Constitutional Gestalt, I thought about Edgar Allan Poe's poem and the mysterious eidolon (as well as the unmappable isle of Thule).  An eidolon can mean either an unachievable ideal or an insubstantial phantom; both images suit my purposes.  Larry opts for the more psychiatrically sober metaphor of the gestalt to describe the "indirect effects" of the Commerce and N/P Clause portions of the health care case.  In this post, I thought to (a) describe his discussion of those indirect effects; (b) note a similar (even if not parallel) development in the Supreme Court's treatment of the Free Exercise Clause; and (c) pose 2 questions about the sorts of doctrinally destabilizing resolutions that this Court seemingly favors.

 

(a) First, Larry's paper.  After an interesting discussion about the vertical and horizontal stare decisis effects (the direct effects) of the Commerce & N/P Clauses, the real fun in the paper begins.  The indirect effects of a Supreme Court decision are those which affect the sorts of arguments that are plausible, and those argumentative norms, when aggregated, take on a certain look or appearance when viewed from a distance.  This is the constitutional "gestalt" -- an "overall picture of the constitutional landscape."  Larry uses the image of cartography to describe the gestalt: some territory remains to be mapped, while some has been mapped beyond dispute.  The concept of the gestalt is not the same as that of the paradigm, because the paradigm has to do with reaching agreement by referring to core or canonical cases and then making arguments for an extension of the core.  The gestalt, by contrast, has only to do with a holistic picture that "organizes" -- or maps -- "our perception of cases, rules, and theories."  Constitutional gestalts, says Larry, "operate at a level of abstraction that floats above, doctrines, theories, and narratives," and in so doing they provide a highly impressionistic map of our perceptions.

Shifts in the gestalt destabilize what was previously thought to be settled.  It is as if a new map were made which redraws certain land or water formations in ways that would previously have been thought absurd, but which now seem quite reasonable.  Larry describes two existing maps of the Commerce and N/P Clauses -- a dominant map ("The Dynamic New Deal Settlement") and an alternative map ("The Frozen New Deal Settlement").  While the case law was actually fairly complicated in the period covered by "The Dynamic New Deal Settlement," the map was fairly simple.  Its organizing principle was that "Congress had plenary and virtually unlimited legislative power" and this heuristic informed the map-making process:

Imagine a sea of federal power that spans the globe.  The New Federalism decisions of the Rehnquist Court created islands of state power, including the anti-commandeering principle  . . . the expanded Eleventh Amendment sovereign immunity doctrine . . . and the Lopez and Morrison limits on the Commerce Clause.  This gestalt underwent modification -- the ocean of federal power was dotted with isolated islands of state sovereignty -- but the basic pattern (the sea of federal power) remained intact.  

The alternative map was structured by reliance on a very different organizing principle: it accepted the New Deal Settlement, but essentially froze it in place and did not endorse any dynamic view of it: "This far, but no further."  Wickard v. Filburn was wrong, but is now settled, and the New Federalism decisions are proper correctives rather than little carve-outs:

[T]he alternative gestalt admits the existence of a great sea of federal power but insists that there are whole continents above the high tide line . . . . There are peninsulas of state authority almost surrounded by federal power.  There are great bays and fjords, where federal authority extends deep into the reserves of state power.  Preserving the status quo is not a matter of elegant doctrines constituted by a few distinctions rooted in a general theory of federalism.  At the doctrinal level, the alternative gestalt sanctions and encourages categorical distinctions that may seem arbitrary if evaluated in isolation, one by one.  From the perspective of the alternative constitutional gestalt, these seemingly arbitrary categorical distinctions make sense when viewed from a distance. They freeze the New Deal Settlement, as it exists here and now—this far, but no further.

What NFIB v. Sebelius did, in Larry's view, was to destabilize the primacy of the dominant gestalt and to throw into question which map of federal power is the accurate one.  Its most important indirect effect, he believes, is to have greatly expanded the grounds of constitutional contestation.  We have reached a moment of perfect equipoise -- perfect tension as between rival pictures of the world.  "But this moment cannot last," says Larry.  "The constitutional gestalt must eventually settle -- one way or the other, dynamic or frozen."

(b) Though the analogy is imperfect, I believe that this Court has done something very similar to the Free Exercise Clause.  The existing gestalt was the map whose guiding principle was Employment Division v. Smith, with its oft-chanted rule that neutral laws of general application are constitutional even if the burden that they impose on religious believers is significant.  The interesting thing about the rule is that it contains numerous exceptions.  Some of these have not been very important.  But some have.  The exceptions to Smith (and their subsequent interpretation by other courts) might in turn have had the effect of developing two competing gestalts.  Indeed, from the cartographic point of view, I think this is a useful way to see things: a dominant gestalt of the "Ocean of Neutrality" dotted by islands of non-neutral or non-generally applicable case law (see, e.g., Lukumi-Babalu); and, just as in Larry's telling, an alternative map in which it was admitted that there was a large sea of neutrality, but there were also large land masses which encroached on that sea, depending on how broadly the exceptions to Smith had been interpreted by courts.  Yes, Smith genuinely remapped the world (just as the New Deal cases did for the Commerce Clause).  But the map in the alternative view actually represented a series of far greater restrictions on the government's power than was believed by adherents of the dominant gestalt.

With the coming of Hosanna-Tabor, the stability of the dominant gestalt of free exercise has been thrown into question.  I said up above that the analogy is imperfect, because (1) it is true that Hosanna-Tabor could be grounded in the Establishment Clause alone (though this is not what the Court said); and (2) the Court purported to distinguish individual from institutional autonomy (whether it did so convincingly is the subject of serious disagreement).  But both the methods of the Court and the indirect effects of Hosanna-Tabor strike me as being similar to those discussed by Larry.  The Court has now cast doubt on the reliability of the dominant map of the Free Exercise Clause.  It has destabilized doctrine, and in such a way that we are now unsure of the direction of future Free Exercise Clause developments.  The Court's particularistic approach in H-T adds to that instability.

(c) Here are two questions. 

(1) It is interesting that this Court has opted for destabilization in both of these contexts.  Note that the destabilization is two-fold -- it has put in question the previously dominant gestalt, and it has given us little indication about what the future holds.  It has instead opted for a holding together of positions in tension.  Is there something more systemic that could be said about the sorts of resolutions that this Court prefers?

(2) I wonder about Larry's belief that "the gestalt must eventually settle" one way or the other.  Maybe not.  Maybe what we are seeing in this Court is a preference in some areas of the law for instability and for ambiguity in the state of the law.  That might be because in the end, a gestalt is actually an eidolon -- an idealized picture, and a phantom.