By far the most fascinating story to be covered at today's inaugural festivities involves the genesis and meaning of Justice Scalia's head-dress. The voracious hunger for conspiratorial explanations in the Twitterverse was predictable, but it was sated (or perhaps 'whetted' is the mot juste) by Kevin Walsh, whose dash and sense of medieval panache is second to none.
Monday, January 21, 2013
Mystery Millinery
Thursday, January 17, 2013
Stinneford, "Punishment Without Culpability"
This paper byJohn Stinneford is very well done. One of the many nice moves that John makes is to connect the issue of culpability as well as the moral condemnation that sits at the heart of criminal law to the Constitution. Here's the abstract.
For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor.
The Supreme Court’s inability to place meaningful constitutional limits on this aspect of legislative power is often described as a failure of courage or will. This Article will demonstrate that it is actually a failure of memory. Prior to the turn of the twentieth century, the Supreme Court’s jurisprudence was animated by two traditional common law ideas: (1) that there are real moral limits to what the government can do, and (2) that the most reliable way to tell whether the government has transgressed those limits is to analyze the challenged action in light of longstanding practice. In the first half of the twentieth century, the Supreme Court rejected these ideas in favor of instrumentalism, an approach to jurisprudence that sees law as a mere instrument through which government experts can solve social problems in light of new scientific insights. As a result, for several decades the Court seemed to approve a limitless legislative power to define and punish crime, which the Court treated as just another form of regulation.
This approach did not last. Criminal law does not merely regulate: it imposes moral condemnation on the offender in the name of the community. In recent decades, the Supreme Court’s constitutional criminal jurisprudence has moved toward reassertion of the old common law constraints, imposing either moral or precedential limits on the power of the legislature to define and punish crime. But because the Court no longer understands the relationship between morality and tradition, these efforts have mostly failed. This Article will suggest that the only way to develop a constitutional criminal jurisprudence that is coherent, just, and duly respectful of the legislature’s primacy in defining and punishing crime is to return to the common law synthesis of morality and tradition that underlies the constitutional law of crime.
John discusses the Supreme Court's movement toward constitutionalizing a "culpability principle" for criminal law (without actually ever going that far -- I enjoyed the discussion of Powell v. Texas). He grounds this culpability principle in various provisions of the Constitution (see pp. 665-666), most especially the 8th Amendment. There is also a very thorough discussion of several cases I did not know about, evincing in various ways the 19th and 20th century disjunction of culpability and crime, on the one hand, and the changing status of culpability as a constitutional safeguard against criminal punishment, on the other. As to the Court's proportionality decisions, John writes that in Harmelin v. Michigan the Court regrettably unmoored the issue of proportionality from that of culpability, a decision that had unfortunate but predictable consequences in Ewing v. California. And, maybe because I have been writing recently about law and tradition, I enjoyed John's discussion of the relationship between common law, morality, and criminal law.
Law as Tradition: The Inescapability of Tradition
The third feature of law as tradition discussed by Professor Martin Krygier in his article, "Law as Tradition," besides its pastness and its presence, is its transmission or handing down ("traditus" is often translated as that which is 'handed' down, and I have sometimes wondered whether there is a related but somewhat more distant etymological root: 'tra' means across, and 'dita' means 'fingers' in Italian, making 'tradita' transliterate to 'across fingers.' But probably the root of 'dita' is from the Latin, 'dare' -- to give -- making the transliteration, 'giving across'). "Traditions," writes Krygier, "depend on real or imagined continuities between past and present. These continuities may be formalized and institutionalized as they are in the institutions of law and religion, though they need not be." (251) Cultures which have well developed sacred and secular institutions entrust the task of transmission to various sorts of experts ("kings, priests, judges, scholars"), who are arranged in a hierarchy of tradition-interpreting and transmitting authority.
Krygier makes a nice move at this point. He writes that the conventional dichotomy between "tradition" and "change" is false because "the very traditionality of law ensures that it must change. Although authoritative interpreters might police the present to see that it does not stray too far from their interpretation of the past, it is impossible for traditions to survive unchanged." Change can occur deliberately (as when, for example, a new revelation or a new legislation is then incorporated into the tradition) or, in the case of written traditions, simply as a feature of the interpretive instability in the reading of a text (not the wild indeterminacy of text, just its lack of fixity). In written traditions, "the past becomes available for controversy . . . . Written traditions are continually subject to modification. Their transmission necessarily involves interpretation of writings. This ensures change." (252) That is because, in a tradition, texts do not stand alone but must be interpreted so as to be consistent and coherent with the tradition itself. Krygier is not describing only, or even primarily, the interpretive tradition of the common law:
[G]iven the impossibility of univocal interpretation of most complex texts, there is a sense in which legislation forces interpreters to rely more rather than less heavily on tradition than does the common law. For a relevant statute, still more a code, forces itself on an interpreter. Its words cannot be sloughed aside as dicta or dissent; they have to be interpreted. Since their meanings often will be plural, and since later lawyers nevertheless have to give meaning to them, they are bound to repair to interpretations which have become settled and accepted and/or to canons of statutory interpretation which, as we have seen, are highly traditional. (254)
This is a pretty neat point, and one might extend it to constitutional interpretation. Here's a passage from Edward Shils's wonderful book, Tradition, quoted by Krygier, which seems pertinent to constitutional interpretation today:
It might be the intention of the recipient to adhere 'strictly' to the stipulation of what he has received but 'strictness' itself opens questions which are not already answered and which must be answered. If it is a moral or a legal code, or a philosophical system, the very attempt by a powerful mind to understand it better will entail the discernment of hitherto unseen problems which will require new formulations; these will entail varying degrees of modification. Attempts to make them applicable to particular cases will also enforce modification. Such modifications of the received occur even when the tradition is regarded as sacrosanct and the innovator might in good conscience insist that he is adhering to the traditions as received. (Shils, 45)
Monday, January 14, 2013
Law as Tradition: Law's Presence
Professor Martin Krygier’s description of and argument for “Law as Tradition” began with a claim about law’s pastnesss, but the bare fact of pastness cannot be the end of the story, because much of the past does not figure in any tradition at all. The second feature of law as tradition that Krygier discusses is law’s “authoritative presence,” and it involves the normative force of the past on the present — when the past, real or imagined, is thought to be of continuing significance to the present (hence the double sense of “presence” in Krygier’s phrase — as meaning both existence and present-ness). For this reason, law’s traditionality is reflected not only in the pastness of its present, but in the presence of its past — “the extent to which only the presently authoritative past is treated as significant and only to the extent of this present authority.” (248) This “presentism” is often heard as the complaint of the historian, but it functions to distinguish the work of the historian from the work of the lawyer:
In seeking to explain ‘Why the History of English Law is not Written’, Maitland suggested that one reason was the lawyer’s peculiar attitude to the legal past:
what is really required of the practising lawyer is not, save in the rarest cases, a knowledge of medieval law as it was in the middle ages, but rather a knowledge of medieval law as interpreted by modern courts to suit modern facts.
Applied to legal history itself, this attitude to the legal past has frequently led to history-as-genealogy or, as the American historian Daniel Boorstin has written, the considerations of legal history as ’an alchemy for distilling legal principles’ . . . . A similar complaint has recently been made by Douglas Hay [in an essay on criminal prosecutions in England and "their historians"]. When it comes to thinking about the past, one characteristic of ’thinking like a lawyer’, Hay argues, is what historians call ‘presentism’; ’the fallacy of working from present concerns to past origins, is anathema to historians, but necessarily half the lawyer’s method’. What appears to historians as bad history is simply typical of the behaviour of participants within a tradition. Whig interpretations may be unsuccessful history, but they are often very successful law.
When participants in a recorded tradition consult its records, they are rarely concerned to reconstruct the past wie es eigentlich gewesen ist [as it is in actuality]. All developed legal systems, for example, produce rules of statutory interpretation which prescribe and circumscribe the resources on which a lawyer may draw to interpret statutory provisions. A point little remarked upon by lawyers is that these are not rules for which an historian seeking to analyze the origins and purposes of a statute would have much use. Even if he could make sense of the notion of the ‘intention of the legislature’, for example, no historian seeking it (or them) on a particular matter would feel bound to limit himself to the sources or kinds of inference allowed to a judge by whatever rules of statutory interpretation prevail in a particular jurisdiction. Nor should he believe he had found the intentions he was looking for if he did so. An historian, qua historian, is an outsider to the internally authoritative traditions of law, even though he may need to be an empathic outsider. A lawyer is bound to invoke legal rules of interpretation, not because he is an inferior historian, but because, qua lawyer, he is not an historian at all. He is a participant in a legal tradition, for whom statutes are primarily important not as sources of clues to events in the otherwise hidden past, but as authoritative materials from which meanings must be extracted by authorized means, to enable responses to present problems to be fashioned; or at least to be publicly justified to other cognoscenti of the tradition. (248-50)
Friday, January 11, 2013
Law as Tradition: Law's Pastness
One of the happy byproducts of a recent exchange with my friend John Inazu was his reference to an essay by Martin Krygier from nearly thirty years ago, Law as Tradition, 5 Law & Philosophy 237 (1986). Because the essay is not publicly available, and at the risk of provoking the copyright goddess, I thought to post a few portions of it in this and subsequent posts. The essay is well worth reading in full. Krygier identifies and discusses three special features of law as tradition: law's pastness, law's authoritative presence, and law's transmission or continuity from past to present.
Here's the sense of Professor Krygier's discussion of law's pastness. As in every tradition, law records, preserves, and 'hands down' across the generations a composite of opinions and values. But unlike in other traditions, in law the maintenance and transmission of the past is itself institutionalized. And that institutionalization gives the past a particular kind of power, though the power is of course far from absolute (in part this is because the tradition itself is variegated and not univocal).
Judging, he writes,
that activity so favoured with jurisprudential attention and writings, is an archetypally traditional and tradition-referring practice. For however innovative judges are, their modes of justifying decisions, and therefore the sorts of arguments which must be addressed to them, in fact or hypothetically, differ systematically from those of other decision-makers such as, say, engineers or entrepreneurs, or workers in less self-consciously authority-filled traditions, such as novelists, artists or scientists, who themselves are in no way free from the traditions of their calling. Judging is a specific and characteristic mode of making and justifying practical decisions: a judicial decision is one which is justified publicly by reference to authorized institutional tradition. In those hard cases that lawyers and legal theorists so enjoy to contemplate, the need publicly to justify one's decision in terms of interpretations of the legal past which seem plausible to experts, remains important long after simple rule-application has ceased to be possible. Doing this involves neither application of a clear unequivocal rule, as in the perhaps mythical easy cases, nor invention ex nihilo, but inescapably (though not only) inter-pretation of authorized institutional tradition. (245)
Sunday, January 6, 2013
Chemerinsky Urges Compulsory Public Schooling and the Elimination (and Unconstitutionality?) of Private Schooling
I am not attending the AALS conference this year, but I thought to reproduce (with permission) a message on a constitutional law listserv that I'm on, written by Pepperdine law professor Mark Scarberry. Mark reports his impressions of a presentation by UC Irvine law dean Erwin Chemerinsky:
Dean Chemerinsky stated, if my memory is correct, that the only way to deal with educational disparities and the problem of (de facto) resegregation of public schools is to require all children to attend public schools and to require that they do so within districts made up of metropolitan areas. That would include suburbs along with inner cities, so that racial integration by busing will be possible. He stated that Milliken v. Bradley should be overruled, so that suburban school districts could be, for these purposes, combined with inner city school districts to allow integration. He also stated that Pierce v. Society of Sisters should be overruled, so that all children could be required to attend these racially mixed public schools. As I understand it, he thinks that only if whites are required to put their children in the same schools as those attended by racial minorities will there be the political will to provide the resources so that minority students can receive a quality education. He said that parents who wanted to have their children receive religious education or other forms of education could have them receive it after school or (I believe he said) on weekends.
I don’t think he meant to say that the right of parents to control their children’s upbringing and education would be eliminated, but that the right should be overridden by a compelling state interest in providing an adequate education to all students. It wasn’t clear to me whether he wanted all the work to be done by the courts, with courts holding that the Constitution requires that all students attend schools on such a metropolitan-area racially-mixed basis (either as a matter of equal protection or as a matter of a fundamental right to an adequate public education) --- or, alternatively, that the Court should allow Congress or states to impose this scheme.
I thought this proposal might be of interest to MOJ readers, and I am opening comments -- though in the comments, it would be best either to get (a) confirmation and/or further elucidation of Dean Chemerinsky's remarks; or (b) analysis of the legal implications of compulsory public education and the overruling of Milliken v. Bradley and/or Pierce v Society of Sisters. There is certainly a pressing need to take seriously the problem of grossly undereducated children in urban and poor areas, and the consequences of Milliken were pretty awful, though what exactly is to be done about that is obscure, at least to me (this is not my area of expertise). But this proposal seems, as Mark later notes, rather illiberal. It also doesn't quite do justice to the reasons for attending a religious school, or any private school for that matter (admittedly, my own educational experience has been entirely within such schools). I also wonder whether Dean Chemerinsky, as part of his proposal, would be favorably disposed to overruling McCollum v. Board of Education, in which the Court in 1948 held that it violated the Establishment Clause for public schools to release students for religious instruction on school premises, taught by teachers outside the public school system. It seems to me that Dean Chemerinsky would probably approve of Zorach v. Clausen (but maybe not, because the released time program was being conducted during regular school hours, let alone all of that “Supreme Being” stuff), where the Court in 1952 approved released time religious instruction off school premises. In conjunction with the (constitutionally mandated?) elimination of private schools, does he envision a larger role for the state (financial or otherwise) in religious education? If not, after private and religious schools are effectively closed down by the state (whether by judges or by legislators), where would students receive the education that their parents, and they, actually want?
Friday, January 4, 2013
Movsesian on Concerning Developments in the UK
My colleague, Mark Movsesian, has a very worthwhile post on a couple of cases in Great Britain involving several infringements of religious liberty that have recently been ratified by the government. Here's a chunk from Mark's post:
In England, a High Court judge recently ruled that employers may discipline observant Christians who refuse to work Sundays.
The case involves Ms. Celestina Mba, who worked as a caregiver in a government-run children’s center. A devout Baptist, she goes to church every Sunday and does not wish to work on that day. When her employer — a government agency, note, in a state with an established church — pressured her to work Sundays, she quit and sued for employment discrimination. She lost at trial and, last month, in the High Court as well.
Why did she lose? English law allows employers to require employees to work Sundays if there is “a legitimate business need.” According to press reports, though, the High Court did not rely on that principle in Ms. Mba’s case. Rather, the court reasoned that Christianity did not require Sabbath observance in the first place. Plenty of Christians work Sundays, the court noted; only a few, like Ms. Mba, see it as a problem. As a result, religious freedom was not seriously implicated by requiring her to work. Employers, the court reasoned, do not need to accommodate outliers like Ms. Mba.
Now, this reasoning is very odd. The fact that some of those Christians who work Sundays might be doing so because they have to — that is, because otherwise they would lose their jobs — apparently did not occur to the court. Moreover, the fact that many Christians see no problem with working Sundays doesn’t mean that other Christians cannot have a legitimate religious objection. Courts don’t usually require that practices be “mainstream” within a religion in order to receive legal protection. Besides, attending church on Sundays is hardly an esoteric practice in Christianity. Many Christians are known to do it — though not in today’s England, I guess.
Monday, December 31, 2012
Forms and Human Disagreement: A Thought on Professors Brennan and Seidman
There is, I think, an interesting parallel in the discontent expressed in Patrick's recent post on the inadequacies of our constitutional form and Louis Michael Seidman's column yesterday. I should say first that Professors Brennan and Seidman know a tremendous amount about constitutional law -- much more than I do, and about many subjects, more than I am likely ever to know. I've learned a lot from their writings over the years and will continue to do so. And, to be sure, they express different positions, coming, as they do, from very different points of departure and having very different ends in mind. Consider this post just a thought about an interesting parallel, seasoned with a sprinkle of skepticism.
It seems to me that there is a fundamental convergence of perspective in the gentlemen's outlooks, and it is this. If we want to understand what is "broken" about our government today -- what has failed, or what is decaying, or even what never had a chance to succeed at all -- our diagnosis must focus on our legal forms. We can explain, at least in large part, how we have gone so badly wrong by looking to the constitutional forms of government and to the authority that we vest in the text of the document -- where we will find, as Seidman has it, "the culprit" of many infirmities in today's body politic. The root cause of our "dysfunctional political system" -- the Constitution -- has thwarted us from being our best selves -- a position with which (I think) Patrick might agree. For example, Seidman writes that the Constitution prevents us from having a unitary "interpretive method," because it can actually accommodate both originalism and living constitutionalism: "Whichever your philosophy, many of the results — by definition — must be wrong." It is the structure and the forms, both men say, which seem to entrench disagreement, perhaps even to valorize it. So we are already predisposed, by the structure itself, not to think clearly, and rightly, about political governance. And until we reject the structure and replace it with a better structure -- one that (for Seidman) reflects the ideal of popular "real freedom" achieved through "mature and tolerant debate" or that (for Brennan) reflects the ideal of real (that is, true) thinking ("intellectus") about the human good -- we will not be the best political community that we can be (as Seidman and Brennan, respectively -- and very differently -- conceive it).
I am skeptical about this view. One reason is that I do not agree with the claim that our contemporary disagreements are traceable to structural legal arrangements. Structures and forms are mechanisms that contain, limit, and focus disagreement. They do not eliminate disagreement. Pick a different structure; you will not have eliminated disagreement. You will only have redirected it into other channels arranged by the structure. I believe that Seidman agrees with this point, but he then says this: abandoning the form, and the authority that we place in it, would make it "apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace." I am unsure why abandoning the constitutional form would make this likely to occur. If it would, the aspirations would have to be taken at the very broadest and least helpful level.
That gets at another, perhaps larger, reason that I do not find convincing the view that the legal or political structure is the "culprit." In republics and democracies, structures of governance are chosen by people. People choose structures and the structures that they choose reflect their cultural commitments. Culture precedes positive law, not the other way round. And a culture (like ours) within which widespread and deep disagreement is the rule may be well-advised to choose a legal and political structure in which disagreement has maximal space to dissipate -- like a gas that, when concentrated, will explode, but can be tolerated as it becomes more and more diffuse.
Forms, in this view, are protective; they are a bargain reflecting respect for differences of opinion, and we are in need of protection against one another's desires, intentions, and wills. Just so, formality (in interpersonal dealings, in personal expression, in dress, and so on) is no mere nicety, but a (small) gesture of respect toward other people. Most people, with good reason, want very much to be protected from what lies beneath the manicured surface of their fellow human beings. Formality betokens respect for other people's sensibilities, accompanied by the hope for reciprocity. None of this means that forms and structures cannot be improved or modified or amended to accommodate either a changed vision of the human good or a changed understanding of contemporary circumstance. Surely they can be; certainly the Constitution can be. But criticizing forms and structures, and wishing for their replacement with others, is largely a distraction from the real action -- action that has comparatively little to do with the Constitution or the forms of constitutional governance.
Saturday, December 22, 2012
George on Amar and the "Unwritten Constitution"
Our fellow blogger Robby George has a very interesting review of Akhil Amar's new book, "America's Unwritten Constitution," in the pages of this week's Times Book Review. Robby's review is, on the whole, positive. Here is a bit from the conclusion:
Almost everyone agrees that the Constitution includes whatever its text logically requires or more or less clearly implies. More provocative but also persuasive is Amar’s contention that it includes principles inferred from how the written Constitution was enacted. But can constitutional principles, even broadly construed, include some derived from George Washington’s presidency, or Martin Luther King’s “I Have a Dream” speech, as Amar suggests?
Amar allows that parts of his unwritten constitution are “not on the same legal level” as the written one. But that raises the question: What in general does it mean to say that some principle is part of the unwritten constitution? Does it constrain government actors as stringently as principles of the written Constitution do, or less so? A more unified, detailed account of the unwritten constitution’s function might bolster Amar’s bolder claims — or qualify them. It would help us to see more clearly the boundaries of the constitutional landscape that Amar helpfully sketches, a landscape neither fully lighted by the text nor darkened by “penumbras, formed by emanations.”
Wednesday, December 19, 2012
Ripeness and the Passage of Time
Here's a little thought about the effect of the passage of time on adjudication. The temporal dynamic I have in mind is the difference between being too late and being too early. Being too late is best conceptualized in either/or terms. If you file on time, you're "in" and your law suit can move forward; if you file too late, your action is time-barred or falls outside an applicable statute of limitations, and you are "out." The issue of time is clean, hard-edged, and certain. Acceptable and unacceptable are clearly designated. The metaphors are of bells tolling, after which there is silence, or of nicely demarcated spatial boundaries. Any exceptions are just that: exceptions to the rule, rather than judgments about the interpretation of the rule.
But a different conception of time best describes the condition of being too early. Like a fruit, you want your action to be ripe. The metaphor is one of maturity, and it is inevitably subject to graduated and individuated assessment. The goal is to strike at a middle-point, at a moment between the time when the banana is cucumber-ish (unripe) and when it is a slimy, brown, putrid thing (overripe, or perhaps moot). Likewise, the manipulation of time in the context of the metaphor of maturation looks distinctive. The riper the action becomes -- a function in part of the incremental passage of time -- the more work the party resisting its ripeness must do to persuade the court that the time is not yet ripe to hear it. With each day, the banana becomes more golden, and its characterization as unripe becomes more challenging. And that is when the rhetoric of immaturity can assume an important function.
Take the HHS mandate litigation. My own view is that these issues of time were in part responsible for the Eastern District of New York's rejection of the standing and ripeness challenge by the federal government, where previous courts, adjudicating the claims at previous moments in time, had found otherwise. Time had done, and may continue to do, its maturing work.
Yesterday, the United States Court of Appeals for the D.C. Circuit handed down a short order affirming the dismissal of holding in abeyance Wheaton College's complaint against HHS for unripeness as, for the present, unripe. The court dutifully noted the representation of the government in the Advance Notice of Proposed Rulemaking of the forthcoming accommodation/change/emendation/difference. But the court also said that at oral argument, "the government went further . . . . [I]t represented to the court that it will never enforce [the existing rule] in its present form against the appellants or those similarly situated . . . . We take the government at its word and will hold it to it." The first italics is in the original; the second is mine.
A couple of thoughts. First, it is interesting to see that as time progresses, and the case moves toward maturity, the government must work harder, and extend itself further, to persuade a court that the case has not hit sufficient maturation just yet. So the government made the calculation that for the sake of gaining more time, it needed to promise "never" to enforce the existing rule against the claimants, a statement that, it would appear from the court's language, it had not made before and had a psychological effect on the court's judgments about maturity. Second, the precise language used by the court to describe the oral representation of the government is interesting. In order to stave off review but to keep things sufficiently vague to give itself maximal freedom, the government represented that it will not enforce the existing rule "in its present form." But that simply restates the promise that it plans to amend the rule. So one wonders exactly what of substance the oral representation adds to the government's previous position. Perhaps nothing. It may instead be that the key function of the oral representation is rhetorical. It sounds like a change of position, though really it isn't. But the effect of the representation is to make the banana look greener and less golden than it is. It is the kind of rhetoric that can make a difference when the question is whether you are too early, but not too late.
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