Crisis and Satisfaction

Maybe I’ll have more to say here about the great law school crisis of the 2010s. (Spoiler: Too many people unproductively conflate supply and demand issues in the legal market with longstanding pedagogical issues. And all the while we ignore the unmet need for legal services among the not so rich.) But for now, I just want to say this: Law comes down to the incredibly interesting question of how we will live together. What rules are needed to elevate us from a chaotic mass of people to a society? People disagree wildly about such questions. It’s complex. It’s consequential. And the doing of law, whether as a lawyer, legislator, judge, or other policymaker, is a cooperative enterprise that is backed by a hell of a lot of power: the power to make people do what they would not do in the law’s absence.

Somehow this extraordinarily powerful and interesting collaborative endeavor is carried out by people who are far too often dissatisfied and isolated. That’s one problem in our discipline that is definitely not a temporary result of the Great Recession. Indeed, it’s one that we actually have the power, but not yet the imagination or understanding, to change.

Law and Wilderness

[This is an introduction I rejected. It now lives on in the blog world, where it may well be read by more people than the introduction that replaced it.]

Law, like wilderness, is a process, not a thing. Only in their evolutions from moment to moment can we be sure that they are occurring at all. Stare as long as you like at a photograph of an idyllic, apparently natural scene complete with buzzing insects, wildflowers, grazing elk, and brown bears lumbering above on meadow-covered slopes. You will still be left wonder: an instant of wilderness captured on film or an illusory tableau, a zoological artifice masquerading as untrammeled nature, with roads, tourists, and cages just off camera? Is it the immediate result of land management, bear relocation efforts? What causes predominate here?

We define wilderness as the unfolding story of the parts of the universe from which our influence is substantially absent. If we play a significant causal role in the happenings of a place, then we can say that this place is not a wilderness. But the moment we substantially withdraw, and non-human causes take or retake control of the destiny of this physical space, wilderness has returned. A large and persistent wilderness, one in which our absence is longstanding, can be beautiful and terrifying. But even a crack in a forgotten sidewalk, shooting up weeds and lined with colliding highways of commuting ants, can be wilderness for as long as we remain strangers to it. Wildness refers to our relative lack of involvement in processes and causes, not virgin beauty.

We, of course, are of the universe and as “natural” as anything else in it. Wilderness therefore has no meaning detached from the human perspective. It is a way we have to understand our own negation, part of its lure our bearing witness to the world’s getting along just fine without us. And while we have chosen as its exemplars swathes of land inhabited by our fellow DNA-bearing creatures, it is also to be found in the nuclear fusion in the hearts of stars, where nothing we have ever done or will do matters. There or perhaps in the coldest, emptiest parts of intergalactic space, we find its purest, most fearsome examples.

In contrast, wherever people are present, we can find in the social glue between them the process we call law. Where wilderness is the evolution of a place without people, law concerns only the interactions of people. It may refer to physical things, but it consists in a purely human system of information and organization. If wilderness is the operation of causes in a space without people, law is the processing, encoding, and creating of information — destined to become causes — purely in and among the minds of people.

Law describes the way people act toward one another when they decide to act together. They transcend the mere plural of person and become a public only when they desire to do at least some minimal thing together and then only with respect to that thing. The concept of law and the concept of a public are therefore inseparable, one yielding the other. Each is subject, and each is object.

It is possible to imagine multiple, solitary individuals acting separately upon the landscape, never cooperating. There would be no law there, only volition. Law, again, is the name we give to the process by which (and there is always a process, however changeable) a public realizes the social purposes its constituent people share. Every public, therefore, has a legal system, and every legal system belongs to a public. Modern societies are composed of layer upon superimposed layer of publics and legal systems. Corporations are publics. Families are publics. Churches, law faculties, school districts, criminal gangs. All are self-consciously groups of people, and all have processes that maintain the social glue that defines them, effectuating the purposes that draw their constituents together.

Footnote Negative Four

Justice Scalia does not seem to think much of section five of the Voting Rights Act, its theory, its democratic support, or even the Act’s name. As with his comments at oral argument in the Obamacare cases, we should leave open the possibility that he will not decide according to the theory he suggested at argument. Indeed, I hope he won’t, because he seemed to be advancing the worst theory of constitutional law I have ever had the misfortune of hearing. My twitter-length summary upon reading the tanscript:

Scalia: Courts are needed to reinforce the representation of discrete, overly-sensitive majorities.

If you’re not a law nerd, this formulation may not trigger instant recognition. But more on that in a moment. Here is Scalia’s soliloquy on the Voting Rights Act and “racial entitlements”:

This Court doesn’t like to get involved in — in racial questions such as this one. It’s something that can be left — left to Congress. The problem here, however, is suggested by the comment I made earlier, that [the margin of congressional support for the Act has increased with each reauthorization even as the need for it has become less clear.] And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same.

Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called “perpetuation of racial entitlement.” It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it. …. [T]his is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?

Put aside that the bail-out and bail-in provisions of section five contain the proper seeds of its own termination. The astounding thing about Scalia’s theory is just how closely it hews to the mirror image (or the bizarro world version) of the theory embbedded in and grown from the most famous footnote in the history of the Supreme Court, footnote four of Justice Harlan Stone’s opinion in United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938):

It is unnecessary to consider now … whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

This represented, finally, a statement of the Court’s understanding of the circumstances in which it should strike down legislative enactments. Strike down a law whenever the Court disagrees with it, and the Court becomes an unchecked super-legislature, the most tyrannical of government entities. Footnote four (and the rest of the Carolene Products decision) suggested that the Court should generally defer to legislative policy judgments. But the engine of democracy seizes when political majorities make repeat losers of political minorities. While normally one would expect losing legislative sides to protect themselves through shifting coalitions and other means (and by the fact that losers on one issue may be the winners on another), that may well not work when it comes to the interests of identifiable social minority groups who cannot so protect themselves.

When legislatures single out socially discrete minority groups for negative treatment, especially for the benefit of social majorities, courts should be suspicious, cast aside their usual deference, and give the law a much more careful look. The genius here is in the identification of a criterion for judicial review that seems legitimate, non-interventionist, and which is all about helping democracy to work better by reinforcing the democratic representation of minority groups who otherwise might be victims of a pathological form of majoritarianism. Plato’s caricature of democracy as a rule of the mob is possibly averted by giving this narrow and exceptional role to courts.

The principle of footnote four and it subsequent elaboration is not without criticisms and defenses, but it at least cabins the potentially awesome power of judicial review, cedes primary policymaking authority to legislatures, and reserves heightened judicial scrutiny for those situations in which we are truly suspicious democracy has gone off the rails because of its targeting of stigmatized groups.

Scalia’s theory is similarly grounded in helping to correct structural problems that the democratic process cannot handle on its own. But here, it’s political and social majorities who need the Court’s help. Democracy fails, the argument goes, when a majority is blocked from doing the very sensible things the majority wants to do because politicians are afraid of being called racists. Fear of being smeared or of appearing insensitive is now such a potential pitfall of democratic lawmaking that we just cannot trust that even a unanimous vote of the Senate represents the fair functioning of the political bodies. This “is not the kind of a question you can leave to Congress.”

The deep, apparently abiding suspicion that our representatives are trapped by political correctness and unable to engage in rational lawmaking is now a reason for a court to subject a law to heightened scrutiny. I guess I should at least be grateful to hear, finally, why some think courts are needed to overturn the judgments of politically accountable bodies that affirmative action is necessary (a situation in which there can be no rational fear that majorities are attempting to subjugate a social minority).

The point is this. We can rationally agree to disagree about the policies of the Voting Rights Act or the policies that give rise to affirmative action programs. Such disagreements are rightly the subject of intense political debate. But whether a court should be able to settle such matters on its own no matter how much support a law has among the public and its representatives, well that is another question entirely. It strikes me as positively bursting through the outer atmosphere of majoritarian victimhood to complain that our democratic discourse is so captured by the interests of racial minorities that it cannot be left to the People to decide how the vestiges of slavery and Jim Crow are best eliminated.


Let’s suppose that President Obama has long believed that same-sex marriage is a civil right. What should we make, in that case, of his recent announcement that he believes gays should be able to marry? In my view, the President, no matter how longstanding his opinion, was right, or at least justified, to wait until now to announce it. And further, the Supreme Court ought to wait just a bit longer, if it can, before enshrining that understanding in the constitutional pantheon, as much as it belongs to be there.

First, I should emphasize that it may well be that Obama has only recently come to the personal conclusion that the law ought to recognize such marriages. He may even believe now that there is no federal constitutional right that would trump the many state statutes and constitutional provisions to the contrary. I doubt it, but I don’t mean to imply in what follows that his true, personal beliefs are other than how he has described them.

Instead, I want to emphasize the obligations and considerations in taking a position as a representative. There is and should be a difference between an individual’s wants, even concerning the law itself, and his or her wants for the institution he or she represents. In short, any representative must understand the importance of roles.

As a relatively unimportant assistant professor, I can express wants for my law school or university that I would not and should not express were I the president of the university. That’s not at all because a president must act in craven, political ways. Rather, my role as an individual faculty member includes an obligation to voice my opinions, adding to the menu of options offered up by others that will inform but not determine the ultimate decisions. As president, this option-producing function is not what’s most important. The university president is both a decisionmaker and a representative. He or she must indeed exercise independent judgment, but for the president to say, in this role, that something should happen or should not happen is a statement about the institution’s intentions, not simply his or her own.

When the President of the United States announces what he believes the law requires, he states something much more than a personal view. He has an obligation to represent the People and in doing so to announce not his own opinions on the controversies of the day, but his view of the proper role that the United State should play in understanding and resolving them. Balancing the need to be a good agent of the People (and not only those in your political base) while also being a good leader is the most difficult act that any scrupulous and well-meaning president must undertake. One must simultaneously give voice to those you lead and actually lead them.

“Do you believe in gay marriage?” becomes, when posed to the President, “How does the Executive Branch view the question of gay marriage?” These questions are not hermetically isolated, but they are nonetheless different questions.

The people of the United States have radically changed their mix of views on the sources of, morality of, and acceptability of homosexuality. However one dates this change, from early activism to the AIDS crisis (Philadelphia) is under-appreciated in this regard) to hum-drum, contemporary sit-coms, the normality of homosexuality and the humanity of gays have now been fully revealed to all who participate in popular culture. This has had the effect of encouraging more people to come out of the closet, which has led to more people having friends and family they know are gay, which only reinforces personal perceptions that gays are, in fact, ordinary people like the rest of us.

It’s a virtuous cycle and the engine of the inalterable trajectory of this issue: People who change their minds are changing it in favor of gay marriage. The population most hostile to homosexuality is dying off. The result of these fundamentals has made the ultimate outcome of this “debate” clear for a long time now, and the trend will only accelerate as people rush to get on the right side of history.

And so, the question has been at what point should the President announce his support for gay marriage. Last year, the White House decided not to defend the section of the creepily-titled Defense of Marriage Act that prohibits federal recognition of same-sex marriages performed in states that permit it. That was a statement that the federal government, if the Executive has its way, will bow to the determinations of states on either side of the issue in determining federal benefits. It did not state that the Executive had taken a position on how a state should resolve that question.

With his recent personal “affirm[ation],” the President has expressed that he, in his role, would like to see gay marriage approved, while explicitly suggesting that the question should, for now, be left to the states. This affirmation is, effectively, suggesting that the states should determine not whether but how quickly gay marriage is legalized throughout the nation. And, incidentally, he suggests they should kind of hurry the hell up, lest your state be one of the stragglers that is ultimately cleaned up by federal fiat - Loving v. Virginia style.

The same is true of Supreme Court justices as is true of the President. The questions they resolve are not identical to the ultimate ones: what does the Constitution require? Rather, a justice must decide what the Supreme Court should do when hit with the question of a law’s legality. Because the Constitution rarely provides clear answers to such questions, it is all the more crucial that a justice understand what role the Court should play and how the Constitution is addressed to that role.

Viewing the Court in this way makes it much clearer why the Court most typically ratifies rather than forges social movements. The “under God” part of the pledge — a red scare-era addition meant to distinguish us from godless communists — seems quite obviously an unconstitutional act of Congress. But that does not mean that the Court had an obligation in the Newdow case to decide as such. While it might have been illegitimate to decide, substantively, that Congress had no sectarian purpose in adding the reference to the Abrahamic deity, punting on standing grounds was probably the better way to permit our society to work out the meaning of the Establishment Clause, that is, the proper role of religious reference and motivations in the public sector.

The choice the Court faces in the gay marriage cases may be more difficult. It would be better if marriage equality won out democratically — if we all owned the decision to be more inclusive. The Court would still be needed to pick up the pieces in a few years, compelling the handful of recalcitrant states as it did in Loving v. Virginia. But its hand may be forced by litigation, such as that in the Ninth Circuit pursued by Ted Olson and David Boies (and countless others, like the rather awesome San Francisco city attorneys).

Perhaps the Court will find a way to let these victories stand while giving the states another couple of years. Honestly, I think that’s all it’s going to take.

When Obama suggests that the marriage question should be left to the states but that he believes gay marriage should be legal, he has made a profound move. The statement more or less consolidates some of the administration’s existing positions and provides signals concerning the future. It tells us that he believes the role of the federal government should be to remove any federal barriers to marriage equality and that it should encourage states to do the same. It also tells us that the day is coming when the federal government, through the Court, will ratify the changes in public acceptance of gay marriage that are not only ongoing but accelerating. Making such a statement is a weighty responsibility, and the President did nothing wrong if he delayed, even if for a long while, before doing so.


The great attraction of Substantive Due Process as a substitute for more specific constitutional guarantees is that it never means never—because it never means anything precise.

Justice Scalia, Stop the Beach Renourishment v. Florida Dep’t of Envt’s Prot., 130 S. Ct. 2592, 2608 (2011).

The Supreme Court has begun its epic consideration of the “most important case ever” — the one reviewing the constitutionality of Obama’s health care reform.  Under established law, the case is neither difficult nor very interesting.  The challenge is to Congress’s power to impose a (modest and essentially compensatory) penalty on those who do not purchase health insurance as a necessary step to its objective of guaranteeing health insurance coverage for more Americans.  As many, many people have written, this is surely a necessary and proper means for regulating the interstate, commercial markets in health insurance and healthcare in order to ameliorate the severe problems suffered by and imposed on others by the uninsured.  (Whether it is a wise or good means is not a question that the Court has the power to consider.)

I see the case as a kind of constitutional oddity, where we’re just left with jaws gaping, wondering how we got to this point.  The point where the specter of government forcing you to buy broccoli is bandied about as a serious reason to dismantle the post-Great Depression understanding that Congress has power to attempt real solutions to national problems.

The vehemence of the debate is made both possible and inevitable by the uncertainties embedded in the Constitution. The words of the Constitution do not provide absolute constraints on their application.  Congress has the power to regulate interstate commerce and to do all things necessary and proper to regulate interstate commerce.  What’s commerce?  What’s necessary?  What’s proper?

When words have such open texture, there is room to locate within them many different outcomes in concrete cases. If you hate Obamacare, you’re drawn to thinking of it as illegitimate, surely representative of government excess.  And here’s the clause of the Constitution that defines that power, doesn’t grant unlimited power, and so must contain a limit — of some kind, right?

When constitutional or statutory language is unrestrictive, disagreements about how to apply it is played out in a predictable fashion.  Not being able to settle the dispute definitively using language, text, and intention, the debate shifts.  Legitimacy, not correctness, is the criterion for victory.  Tactics in such debates include pointing out the personal inconsistencies of the debaters, breaks with tradition, or slippery slopes.  We saw all this on display in the Obamacare litigation.

While the opinions may well sharply differ from the views their questions implied, the conservative members of the Court insisted: that there just must be some judicially enforceable limit to the commerce power, that personal liberty to refrain from commerce is implicit from an unwritten, vague penumbra of constitutional provisions, including the commerce clause itself and the Tenth Amendment’s reservation of unspecified rights to the states and people, and assertions concerning the unprecedented nature of the individual mandate.

The liberals pointed to the routine nature of commercial regulation, the particularities of this market (impliedly noting that most regulations are particularized for certain markets and that health care is an especially odd market), the history of judicial restraint in reviewing economic legislation, etc.  And many of us have marveled at the suggestion  of unwritten, penumbral individual rights on display in Scalia’s questions, a glaring, personal inconsistency if embraced as doctrine.

Indeed, if the questions reveal his thinking (a big “if” and so I use his name for discussion purposes not to criticize views he has not yet claimed as his own), Scalia has neither precedent nor personal consistency on his side.  But that doesn’t mean he’s wrong here.  He’s using a document that provides few constraints to infer concerns about the extent of federal power that trump concerns about the ability to solve national problems.  

We liberals typically see in the Constitution’s structure and historical development a concern for federally protected individual rights and a gradual realignment in favor of broad federal prerogatives to the detriment of state sovereignty — and the counter-majoritarian uses, rather than elite-protecting ones, of federal courts.  These broad principles lead us to find, in the uncertain language of due process and perhaps other clauses, a right to privacy and more robust protections for criminal defendants and others who are not likely to be able to protect themselves in the political process.

Scalia doesn’t think much of doctrines like substantive due process and the right of privacy that he perceives as unmoored from the constitutional text.  These doctrines, he maintains, provide no limits on judges and permit them to make essentially political judgments on a case by case basis.

But here in the Obamacare cases, as in cases striking down congressional acts in the name of “Our Federalism” rather than specific provisions, Scalia might find his own roving, super-textual mandate for expunging legislation that interferes with economic rights and property.  Indeed, the last couple of decades have seen a wave of conservative attacks on the post-Depression legal order: attempts to restore judicial protections of states rights and individual, economic and property rights.  From Citizens United, to the conservative reaction to Kelo v. City of New London, to efforts to expand the reach of the takings clause, to the effort in Lopez to reinstate commerce clause limits, to the sovereign immunity and anti-commandeering cases, to the subtle shift from suspect classes to suspect classifications in Equal Protection law.  These threads come together in the health care cases.  But only because conservatives have chosen to bring them together.

If Obamacare feels, deeply and intuitively, excessive, as I assume it does for some libertarian-minded conservatives, it’s natural to find it inconsistent with a constitutional scheme aimed to cabin excess.  First, you just assume there must be a “limit” to what Congress can do under the commerce clause, a limit beyond the existing ones (the Lopez limit to commercial activities when aggregating individual activities to find a substantial economic effect) and the protections against rights violations.  But the direction and magnitude of this limit a not specified, a principle beyond “The Federal Government Must Be Limited” is not made clear.  Under such conditions, any use of federal power lies on some vector from the origin, along which we can argue at some point lies “too far.” If we have no principle to tell us what purposes the limit serves and what it demarcates, then for any law we can scan around us, 360 degrees, to find the direction in which their is a downward slope, and we can call it slippery.

So what’s the alternative? Originalism or textualism? No.  Scalia’s right to look at the power-conferring and rights-protecting language of the Constitution and wonder what structure it implies.  It sets out ideas, ideas that reflected and gave birth to practices, and ideas that set the terms of debate.  But absolutely nothing in the clauses themselves provides a definitive answer, even in these very easy cases.  (I don’t mean here to imply I’m providing any kind of rebuke to recent academic writing concerning the various sorts of originalist interpretive theories.  It’s true that I don’t think they work, but this isn’t an argument to that effect.)

What’s odd is not that Scalia does this but that he worries about such odd things.  There’s a reason, for example, to worry that textualist elimination of the right of privacy would unleash governmental power inconsistent with the Constitution’s own structure.  Not only is it a possibility that government could do all kinds of bad things without the protection of judicially enforced privacy rights, it has actually happened.  There are reasons to believe that majority-controlled legislatures filled with culturally and religiously homogeneous legislators might not respect the integrity of the private lives of political minorities.

But what reason do we have to fear that government might force us to engage in unwanted economic transactions that similarly threaten to undermine the anti-authoritarian aims of the Constitution?  Is any actually worried that this law is indeed a stepping stone to one forcing us all to buy broccoli or to exercise?  In a nutshell, what reason is there to think that the political processes, elections and such, aren’t good enough to protect us from such things?  And, most importantly, can you think of any areas where the political processes would indeed fail but where the rights to autonomy contained within and among the Bill of Rights and Civil War amendments would be inadequate to the task?

Politically, I see Obamacare as an attempt at compromise, an attempt to do something about the millions of uninsured while leaving as much to private markets as possible.  I’m left to scratch my head and wonder what opponents wish to do actually to solve this problem.  Do they understand the extent of problems many Americans have in this market?  Consider this:

[Young people without health insurance] aren’t stupid.  They’re going to buy insurance later. They’re young and need the money now. ….  When they think they have a substantial risk of incurring high medical bills, they’ll buy insurance like the rest of us.

Justice Scalia, at oral argument (emphasis added).  And there it is.

State Action Problems

I’ve finally released a draft of an article I’ve been working on for some time. I encourage, nay beseech you to download it and take a look! In this post, I’ll sketch out the problem, with a bit of background, and my solution. The fuller argument, obviously, is in the article. Here, I hope to use the description of my paper to show the kind of shift in thinking that we expect law students to make in the first year. A goal in law school is to move students from asking whether some bit of law is “right” to thinking more deeply about which institutions get to decide whether it’s right, whether there should be rules governing that decision, and how other institutions should treat the answers. Let’s turn to the problem at hand.

State Action

When you throw someone out of your home for saying something offensive to you, we say that’s your right. When the government throws someone out of a public park for saying something that offends it, we say that it’s violated the speaker’s rights. Why the difference?

In the case of the park, courts say there is “state action,” meaning that the state, the government, has produced the bad consequences. Nearly every prohibition in the Constitution and its amendments applies only to government, not to private citizens. That’s why you generally can’t complain to a court that your neighbor or your (private) boss has violated your “free speech rights.”

Seems easy enough: if some state agent stops me from speaking, takes my property, or treats me differently on account of my race, I can cite the First, Fifth, or Fourteenth Amendments to the Constitution as reasons for a court not to allow it. But if it’s a private citizen who fires me, refuses to invite me over, or divorces me on account of my race, religion, or activism, then the Constitution provides no help. At best, there might be statutes or other types of law to which I could turn. The Civil Rights Act of 1964, for example, prohibits racial discrimination in private hiring. The Constitution, however, does not.

Hard Cases

As is often the case in law, hard cases have destroyed this quaint understanding of state action. Such cases can lead us into nihilism, just accepting that the law on the books provides no real answers in any case in which we’d actually need to consult it, but they can also provide a deeper, richer understanding of what the underlying problem really is.

Take one hard case, perhaps the most famous of hard cases. In Shelley v. Kraemer, the Supreme Court was confronted with the perfect end-run around the Equal Protection Clause. Having struck down racist zoning laws in Buchanan v. Warley, property owners in many areas of the country were left to create their own, private racist zoning schemes. Using a device called a covenant (really just a contract relating to land that, if certain conditions are met, binds not only the parties but those who later purchase the parties’ lands), private landowners agreed with one another to bar African Americans from white neighborhoods. The state of Missouri upheld such a covenant. There was, therefore, no state law and, at the time, no federal law barring such an agreement. The effect was racially segregated zoning, with private actors using the market rather than the voting booth to enforce their racist preferences.

In another case, a private political group (the Jaybird Democrats) in Texas held a private poll to determine which white candidate would run in the actually primary. Unopposed by other whites, this candidate would be assured victory and non-whites practically excluded from holding office. And in yet another hard case, one corporation owned an entire town: streets, shops, buildings, sewage system and all. It, as a private citizen, refused permission to a Jehovah’s Witness to preach on a street corner.

In each of these cases, the Supreme Court found there was state action and that the Constitution applied to prohibit the private actors from discriminating. The reasoning for these decisions is a bit mysterious, and that is the problem with the doctrine. In Shelley the Court pointed to the fact that a state court enforced the covenant, and this enforcement was clearly state action. The obvious problem with that ground is that every legal dispute between private parties concerning private agreements may ultimately be resolved by and enforced by a public court. A private contract is not subject to, say, the First Amendment simply because the contract is the subject of a lawsuit.

In other cases, the Court has pointed to the “public functions,” like operation of a private town, performed by a private party as setting the party apart from most private actors, and using that to justify constitutional regulation. But the line between public functions and things private parties sometimes do is, to put it mildly, an uncertain one.

The Heart of the Problem

Let’s start over. It’s worth it, because understanding these cases actually helps us to see more clearly our legal system as a whole. It’s their very oddity that makes the state action cases such ideal objects for study. Scientists look for phenomena that break the known rules in order to understand the real rules better. That’s what we need to do here.

The first thing to note is that there is a distinction between laws that govern primary behavior, those that provide sanctions for actions, and those that provide rules for recognizing and making laws. H.L.A. Hart called these primary and secondary rules, respectively. This isn’t a very difficult concept: just think of the distinction between a law that prohibits murder and a law that says Congress can’t abridge the freedom of speech. The latter is a law regulating the making of law, a type of Constitutional Law.

The difficult state action cases arise because there’s a problem with the way we usually apply these secondary rules. Normally, the privately made rules of private actors are governed by what I call private Constitutional Law, which includes the ordinary law of contracts — how contracts are made, when they go too far, how they’re interpreted, and so on. And publicly made primary rules, like murder laws and laws creating liability for negligently caused injuries, are governed by public Constitutional Law, which includes, among other sources, the U.S. and state constitutions.

Here’s the thing: each body of Constitutional Law is tuned to govern a particular type of institution. Private Constitutional Law, including the law of contracts, is primarily concerned with ensuring truly voluntary transactions. Public Constitutional Law focuses on the problem of legislators, agents of the public, making law that will bind all the rest of us whether we like it or not. We need protection from public laws that ban speech, because lawmakers may impose this on us without our consent and to serve their own ends. We usually do not need protection (at least, as aggressive protections) from private contracts restricting speech, because the parties to the contract can refuse to consent to such terms. This paper, my earlier paper on the public/private theory of legal systems, and my earlier blog post on the structure of legal systems explain in greater detail how these two bodies of Constitutional Law differ.

The Two-Step State Action Solution

Let’s look at why Shelley, the case of private racist covenants, is so difficult. Formally, we have private actors engaging in private contracting. The private Constitutional Law established by the state’s law of contracts sees no problem with the voluntariness of these contracts. (There’s a wrinkle here that I explore a bit in the paper.) But, of course, the problem in Shelley is not with a single such covenant. It’s the fact that there were a great many of them, so many that there was a virtually uniform rule in lots of neighborhoods that non-whites could not live in the same areas as whites. Private constitutional law is not adequate to deal with this problem. Here, acting in concert, private landowners created a virtual law that imposed obligations on others. They acted as a legislature to create a racist zoning scheme.

In state action cases like Shelley, there appears what I call in the paper a “state action problem.” Private action that amounts to compulsory, public legislation creates a state action problem. (It’s not the only way, but a consequence of my theory is that this is a sufficient condition for finding a state action problem.) When private individuals make law for others, it becomes relevant whether they have acted adequately on those others’ behalf, just as it is for public legislatures. The consent among the contracting parties is a poor proxy for the overall public impact of the law. I say these sorts of laws raise state action “problems” because simple application of ordinary private Constitutional Law would poorly govern the private lawmakers. It’s the wrong set of rules given the lawmaking behavior of the private entities.

But, for a court, identifying a state action problem is only the first step. Other legal institutions may well solve the state action problem — by, for example, legislatively or judicially amending state contract law to provide specific constraints, perhaps even borrowing bits of public Constitutional Law. In the regulation of Homeowner Associations, state courts typically review rules passed by private boards, which look very much like the laws of legislatures, for “reasonableness,” rather than for the far more deferential “unconscionability” of ordinary contract law. This, to at least some extent obviates the need for a federal court to solve the state action problem itself.

So when should a court take it upon itself to solve a state action problem, through the rather blunt technique of pretending the private actor is a state actor and applying the Constitution? I argue that it should do so only when (a) there’s a state action problem that (b) other institutions, like legislatures and state courts, are peculiarly disabled from solving. And when does condition (b) occur? Among other times, when the private actors are using private law to impose disadvantages on “discrete and insular minorities,” groups that are relatively powerless to attract the protection of those other institutions that could solve the problem.

If you’re interested in seeing how this theory explains the apparently erratic state action doctrine and why the presence of racial discrimination seems so determinative, read my paper!

Are There Muppets in Galt's Gulch?

The op-ed by soon-to-be-ex Goldman Sachs employee, Greg Smith, is getting plenty of attention on the internets this morning. Called, “Why I Am Leaving Goldman Sachs,” the letter is a fine exemplar of the genre of bridge-burning parting shots by exiting employees. See also here and here. Smith excoriates the firm for what he says is its shift toward viewing clients only as profit centers, with the success of the client’s investments a distinctly, well not even secondary goal. Clients, it turns out, were often called “muppets.” On Twitter, Andy Borowitz went on a tear, tweeting: “BREAKING Goldman Reassures Clients: ‘All the Other Assholes are Staying.’”

I want to draw attention to one paragraph that captures the essence of the problem here.

What are three quick ways to become a leader? a) Execute on the firm’s “axes,” which is Goldman-speak for persuading your clients to invest in the stocks or other products that we are trying to get rid of because they are not seen as having a lot of potential profit. b) “Hunt Elephants.” In English: get your clients — some of whom are sophisticated, and some of whom aren’t — to trade whatever will bring the biggest profit to Goldman. Call me old-fashioned, but I don’t like selling my clients a product that is wrong for them. c) Find yourself sitting in a seat where your job is to trade any illiquid, opaque product with a three-letter acronym.

In simple terms, Goldman seeks to profit by encouraging clients to enter deals on bad information it provides.

The very reason we like private transactions is that we think people who trade with one another each want what the other has. They’ll be better off if they trade, and, therefore, we’ll collectively be better off. When you buy a car, you value the car more than the money you give to the dealer, and the dealer values the money more than the car. Simple. Here, Smith says, Goldman’s doing two things. It’s conveying information to clients in order to make them value a trade erroneously (erroneously form Goldman’s perspective). Then it’s transacting with them in a way that enriches Goldman but, presumably, impoverishes the client. And there’s no guarantee that Goldman’s gains even outweigh the client’s losses. You’d think the mortgage crisis never happened.

Economists may well suggest that we’re getting an efficient level of bad deals here. That is, clients don’t invest in obtaining more information on their own, because the marginal increase in deal quality that better information would give them is not worth the cost of acquiring it. Maybe, but this is a problem that repeats itself, and one wonders if this is really the best we can do. Your mechanic tells you that you need a new engine. The doctor tells you that you need a surgical procedure. The air conditioning repairman says that you need a new compressor. What do you do?

The simple fact is that our counter-party in each of these scenarios is wearing two hats. There is not one transaction, but two. On the one hand, they are our information agents, meaning that we are relying on them, and often paying them, to produce the information needed to decide whether to engage in a transaction. On the other hand, they are our prospective partners in that very transaction.

The case for regulation, for imposing legal duties on parties that both provide information and profit from our use of the information, rather than allowing the free market to do its thing is greater as the costs of getting a second opinion (in time, effort, and money) go up and as the cost on the agent of acquiring the information it’s withholding or distorting go down. (For a classic discussion of this, see this article by Richard Posner, especially page 21 about fraudulent nondisclosure.) In all of the above cases, there’s significant hassle in acquiring additional information — so much so that people often prefer investing in online systems to distribute information about trustworthiness (like yelp) to shopping engaging in more than one transaction to acquire information.

Now, there are of course costs that would owe to regulation here, perhaps even large ones to the extent we do more than punish outright, conventional fraud. And I’m not trying to make the case for any particular response. (I’m just kind of scratching around in this post.) Rather, I just found this to be an example of one of the many ways that free markets are not really free. They may, or may not, be freer than the alternative. But we are constantly boxed in by the state of our own knowledge, at the mercy of others whether we like it or not.

The Failures of Freedom

Few notions are as destructive of human welfare as “freedom.” The problem lies in the word’s siren-like allure combined with its clay-like malleability. Who doesn’t want freedom? It’s one of those words that chiefly calls to mind its opposites: slavery, obedience, constraint, “a boot stamping on a human face forever — forever.” Whatever freedom might mean, surely it’s something we’d far prefer to the alternatives. That is until we reflect on the suffering and atrocity, not to mention more minor corruptions, inflicted in freedom’s name.

There are three domains, three kinds of markets, in which the concept of freedom has in recent times been unleashed as a kind of apex predator of the law. Two of them, economic markets and government, have since been exposed as far more complex than starry-eyed libertarians or collectivists wanted to admit. In one of these, the marketplace of ideas, this predator still roams free, destroying laws that can be characterized as regulating speech. Under the guise of freedom, the modern interpretation of the First Amendment tends to perpetuate a laissez faire market for speech replete with market failures and catering to powerful interests, just like the judicial enforcement of freedom to contract kept in place the lopsided, failure-filled laissez faire economic market that preceded the Great Depression. That is the real story of Citizens United. All of this has happened before, and all of this will happen again.

The Free Speech Talisman

In the United States, the freedom of speech is venerated as our highest ideal, maybe our greatest achievement, and perhaps even constitutive of what it means to be an American. Our nation professes to have adopted lock, stock, and barrel Evelyn Beatrice Hall’s characterization of Voltaire’s speech ethic: “I disapprove of what you say, but I will defend to the death your right to say it.” And so, we have upheld the rights of Neo-Nazis to march through a town inhabited by many holocaust survivors and to display the swastika as proudly as they would like. We have struck down a statute that attempted to criminalize sexually explicit images that appear to feature, but do not actually feature, minors. We have famously upheld the right of Hustler Magazine to make fun of televangelist Jerry Falwell by stating that his sexual debut was with his mother in an outhouse. The freedom of students to protest the Vietnam War by wearing black armbands. The freedom of civil rights activists to criticize harshly and even if slightly mistakenly the state police. The freedom to burn the U.S. flag.

These cases, and many others, stand for the idea that we are truly free to express ideas that are inimical to others. Here is a bit from the influential dissent of Justice Oliver Wendell Holmes, Jr. in Abrams v. United States:

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.

Holmes asserts not only that speech and ideas are bandied about in a marketplace but that our Constitution requires that market to be free. The Darwinian selection of The Best is made possible by judicially protected laissez faire. This idea has held on, won out, and delivered to us the line of free speech cases trumpeted in books and films for protecting the powerless and the unpopular.

Economic Markets

Even as he wrote the words above, Holmes was also in the dissenting minority in cases striking down congressional regulations of economic markets. Fourteen years earlier, Holmes had dissented from the now-infamous decision of the Supreme Court, in Lochner v. New York, to strike down a New York law prohibiting bakery employees from working more than ten hours in a day. There, he wrote that “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” And in a case decided four years after Abrams, the speech case above, Holmes dissented when the Court struck down of a minimum wage law on grounds that it unconstitutionally interfered with the “freedom of contract.” Holmes believed the Court should defer to legislatures adopting a non-laissez faire theory of economics, including those which, and here he quoted a law review article, “freedom of contract is a misnomer as applied to a contract between an employer and an ordinary individual employee.”

Throughout this period, a number of influential scholars were busy attacking courts for their formally pro-freedom but substantively pro-business agenda. The legal realists, as they are known, included figures like Robert Hale, who along with Wesley Hohfeld pointed out that freedom in a legal sense is a relative concept. My “freedom” to do something necessarily means, roughly, that someone else is disabled from stopping me. You don’t, then, add freedom to a society by refusing to regulate private transactions. Rather, logic dictates that one needs some additional, moral principle to evaluate which kinds of freedoms and whose freedoms to choose over others. These and other scholars established that, rightly or wrongly, many courts had promulgated law that was cloaked in the language of neutrality and freedom but in fact favored the freedom of the wealthy by aggressively protecting their “rights” to coerce the less well off. Spurred by the economic disaster that was the Great Depression, strong empirical evidence that laissez faire sometimes fails massively, the case for market regulation prevailed — at least in the Supreme Court. Ever since, Congress and the states have been pretty much unrestrained by the courts in their ability to regulate markets. No longer is “freedom” used uncritically to prohibit market regulations intended to correct failures or to redistribute in the interests of fairness or to prevent undue suffering.

Over the years, economists have added criticisms of markets that are interior to market ideology. By that, I mean that they have described a number of circumstances in which markets fail to deliver efficient results, where the voluntary participants are made objectively worse off by their participation, under pretty much any moral theory you choose to apply. Market failures occur for many reasons, including, for example, the wasted expenses necessary to complete a transaction (transaction costs), monopolies, and the fact that individual behavior is often allowed to affect others without their consent through payment (e.g., pollution, an example of an unpriced externality). It’s not important now to understand all of these, but the point is that an unregulated market can sometimes bring terrible results, even if we measure results by aggregate wealth alone. For one example scenario, see Garrett Hardin’s Tragedy of the Commons (skip down to Tragedy of Freedom in a Commons) describing how rational, unregulated herdsmen grazing cattle in a common pasture might be locked into a losing game of putting cow after cow on the increasingly degrading lands despite all recognizing the insanity of the situation.

More recently, legal scholars have started to be more systematic in analyzing the case for market regulation, or deviations from laissez faire, in terms of the predictable irrationality of the human brain. Economic transactions can be inefficient, in the sense that they make the actors involved jointly worse off, because of their refusal to ignore sunk costs, their predictable overoptimism, loss aversion, and other psychological curiosities. (Both law and economists and behavioral law and economists are concerned with more than just market regulation and apply their techniques in many areas of the law. I recognize that. What I’m not aware of, though perhaps it exists, is a systematic study of the failures of speech markets.)


Just as it was with economic markets, the dream that free political systems can deliver great results if only the voters are free to express their preferences at the ballot box has been discredited. The market for votes is as infected with endemic problems as the market for dollars. Here, the dominant critique is known as public choice theory and has as its objects special interests, rent-seeking, the capture of regulators by regulated parties, and the like.

My point here is only that freedom, defined as the relative absence of regulation, counting on voters to regulate with their votes, sometimes fails within governments, just as the absence of regulation can lead to failing markets. This is well known, well described, and non-controversial. People dispute the extent, the qualities of the problems, the appropriate solutions — sure. But laissez faire as a theory of political and economic market regulation is a dead letter, while the sources of problems in these markets and the search for solutions is hopping.

Speech Markets

When Holmes extolled the virtues of a free marketplace of ideas, he was writing against a majority that approved of a ban on core, political (though revolutionary in the midst of a war) speech. It was a little like extolling the virtue of freedom in an economic market to decry a government’s outright seizure of an average person’s modest home. Rhetorical defense of a libertarian position in one case is understandable. But Citizens United seems to me a sort of endpoint, at which Holmes’s marketplace model has hit upon its ultimate expression. If you’re not familiar with it, the ruling struck down a federal statute preventing corporations and unions from spending corporate money to advocate the election or defeat of political candidates.

No matter how apparently broken the market, market participants, in whatever form, have the constitutional freedom to work it out themselves. As Justice Kennedy wrote, to uphold an earlier Supreme Court decision allowing such regulation would “interfere[] with the ‘open marketplace’ of ideas protected by the First Amendment.” And as Justice Scalia said, defending the decision at a meeting of the South Carolina bar, “I don’t care who is doing the speech — the more the merrier. People are not stupid. If they don’t like it, they’ll shut it off.” And just like that, just like Lochner before it, the freedom of the individual is the sword the Court wields to block attempts to rescue a failing market.

Now, there are ways to attack the kind of thinking embodied in Citizens United that take issue with the very conception of the freedom of speech as a free marketplace. Alexander Meiklejohn, writing in 1948, attacked the marketplace of ideas approach, taking Holmes’s dissent in Abrams as a focal point. For Meiklejohn, conceiving of the freedom of speech in market terms was mistaken from the start. Rather, the right model was the town hall meeting, at which each citizen could speak his mind and be heard. The freedom of speech is about not the “words of the speakers, but the minds of the hearers.” It is not an unregulated, noisy clash of ideas, but an organized but free airing of them, calculated to enlighten the listener.

Markets not only diffuse means of production but they diffuse purposes. For the libertarian speech advocate, the freedom of speech includes the freedom to disagree about the purposes speaking to one another should serve. As I said above, I believe that the marketplace view has held out against such attacks and rules judicial intuitions across the land. But that’s not a stopping point, only a starting point.

What I would like to see more of is the “free speech legal realist.” Broad considerations of freedom allow, perhaps even subconsciously, courts to sweep under the rug the consequences of their interventions. But markets can and do fail. Implicit in saying that is that there are some criteria of success, or purpose. There need not be only one. As with economic markets, there could be patterns of transaction that deliver poor results under any conceivable rationale.

Our political campaigns are an example of the failure of the speech market to live up to our ideals. I am certain some will argue that the problem with campaigns is that there is too much regulation. But surely we can detect the hint of the failure of laissez faire by observing just how awfully electioneers make use of the freedom they already have. Can anyone honestly look at the body of campaign speech and at the polling evidence concerning how people consume that speech and reach decisions and fail to say that the open exchange of ideas has failed to lead to more informed decisionmaking? Modern political campaigns, like all other advertising, sell emotion: fear, identification, hope, purpose. The more money you have to secure broadcast to the masses, the more of it you can shovel. As Dahlia Lithwick ably points out, it’s actually Stephen Colbert who is doing the best work laying out for all to see the ways that the market in campaign speech is a mess. Though his medium is hilariousness, his role is not unlike Upton Sinclair’s in writing The Jungle, which exposed just how unfree and miserable life as a cog in the laissez faire free market could be. Sinclair wrote of the brokenness of the economic market then protected by the Supreme Court, while Colbert lampoons the speech market now protected by the Supreme Court.

My purpose here is only to provoke the more careful, internal study of speech markets and their failures. Do people assume the relative volumes of speech on either side they encounter reflect the volumes of support in the public? Do transaction costs (here, collective action problems) prevent coalitions of large groups with somewhat milder preferences from securing limited media space that is easily secured by smaller groups with more intense preferences and access to capital — and do voters draw the correct inferences from the presence of the latter and the absence of the former? Do certain emotional cues play on biases that listeners themselves would like to overcome? Are listeners as prone as our media to believing that anytime there are two opposing assertions the truth lies in the middle, incentivizing extreme speech by candidate proxies? Is there a tragedy of the commons at work with negative and non-substantive campaign speech, a sort of game that drives the participants to a discourse no one would choose — the slavery occasioned by freedom? What other psychological quirks of the human brain are exploited by speech in a free market in ways that drag us all down?

Some evidence that regulations intended to ensure higher signal to noise could be fruitful, other than the common sense of one subjected to typical campaign speech, is the effect of deliberative polling. But I don’t intend to lay out the case here.

As with economic markets, the failure of the speech market does not automatically imply the superiority of regulation, for government failure is also possible. I call only for an honest appraisal, a search for truth concerning this marketplace or ideas. When does it go wrong, and why? No more hiding behind a “freedom” that has us collectively in chains.

If a belch is accompanied by citations, should we take it seriously?

Newt Gingrich almost never meets a problem that can be fixed with anything short of a fundamental change in the operation of the Republic. His is a disposition that can only be called conservative through the lengthening political kaleidoscope of the last three decades, during which — and this is the key to understanding our current state of affairs — national Republicans have gradually ascended their own version of the Ivory Tower, one so lofty even its foundations float high above in the twisted nether, as Democrats have increasingly embraced pragmatic pursuit of near-consensus goals. (These pursuits go unchecked by any sort of equally pragmatic opposition more disposed to worry about unintended consequences, you know, the office that used to be held by conservatives.) But lofty ideals must at least be ideals, with some hint of reason, not simple tribalism surrounded by quotes from the Federalist Papers.

A recent Gingrich target is the authority of judges to pass on the meaning of the Constitution, with only the prospect of constitutional amendment, impeachment, and new appointments to restrain them. Among the sources of Gingrich’s outrage is a now-void ruling by the Ninth Circuit that Congress acted unconstitutionally in the 1950s when it added the words “under God” to the Pledge of Allegiance. Yes, one of the chief arguments for changing the modern federal order is Gingrich’s dislike of a Ninth Circuit decision that was overruled by the Supreme Court. As Dahlia Lithwick points out, if one dislikes the Ninth Circuit’s opinion, that is was overruled is evidence that the judicial branch actually works.

Sure, Gingrich has other targets: the cases deciding that captured human beings confined far from any battlefield at least have the ability to challenge aspects of that confinement in courts, for example. But other cases striking down acts of Congress, like the invalidation of campaign finance restrictions in the name of a corporation’s right to free speech in Citizens United, are in his words “principled” and should be “appreciate[d].” Abortion decisions, limitations on the death penalty, the potential for one day recognizing equal rights to marry — all are judicial usurpations or “assaults.” Heller, striking down local gun control laws is nowhere to be found. The common thread? The political branches and states should have some sort of power to ignore some kinds of decisions but, apparently not others. Oh, and everyone should be originalists.

Eric Posner, writing for Slate, suggests that Gingrich’s views on this “deserve serious consideration.” I think Posner is correct that the proper arrangement of branches — the design of the informational network of the institutions that comprise the federal government — should be further studied and debated. I’m writing about this, because it’s an area I find fascinating. And I hope to blog about some work I’m doing on the conditions under which law, constitutional or otherwise, legitimately binds future generations and the implications for interpretation and institutional arrangement.

Posner, though, is also correct in his closing paragraph: “Gingrich fancies himself a big-ideas man, but he is really just a politician with an interest in history and a penchant for bombast, and what he needs are ideas that will carry him to the White House.” Dahlia Lithwich has grappled with why Gringrich chose to make this an issue. Maybe it’s easy to bully courts, because they can’t talk back. Maybe he’s trying to shore up hard right support with bluster that he thinks other segments don’t care as much about. Who knows?

One thing is clear, though. Gingrich only deserves credit for advancing the conversation in the sense that he’d deserve it for wondering aloud, perhaps after watching a NOVA special, whether the universe would go on expanding, and suggesting that it indeed would — leading physicists to say that, well, there’s actually debate on this and that Gingrich deserves credit for raising the profile of the issue. But no one would conclude that Gingrich’s foray into physics speculation made him the right choice to lead a team of scientists trying to answer the question. He has shown no more precision, expertise, or ability on the issue of the judiciary’s role.

This won’t generally be a political blog, but what has stuck in my craw over the past few days is the suggestion that Gingrich has advanced a policy at all, much less a serious one. At a minimum, we should expect a presidential candidate campaigning on a policy to identify a problem and suggest what he or she would do about it. Gingrich’s position paper and statements do not come close to doing so. They fail to tell us the problem, fail to specify solutions, even by the gauzy standards of presidential politics, and amount to nothing but bluster, gussied up all law-history-like with citations to Framers, scholars, and judges, most of whom don’t even support the general principle Gingrich seems to advocate.

I think, even though he has taken some heat in the press, that Gingrich gets away with it because it’s a legal issue — both (a) technical enough for many people to defer to the white coat that is the multi-page document dripping with citations and (b) basically unfalsifiable. This is a real problem when it comes to public debates about the courts. Too many people either defer to supposed experts or fail to think deeply enough about what courts do, or they all too eagerly accept a citation-loaded white paper that bolsters their political priors. And political-legal arguments are thus free to float around without even the minimal criticism candidates receive when they talk about the budget or military conflicts, and these “out there” arguments can be cited to prop up the intellectual bona fides of the ones who advance them. (But see Bork hearings.)

Gingrich has somehow managed not to take complete advantage of the dual shield afforded by the nature of law, because he fails to provide a credible account of what he thinks the problem is and how he thinks it should be solved. Sure, he has identified a problem but only in the vaguest sense: that the Supreme Court has reached decisions with which he disagrees and that, on those decisions, the Court should not have the final word. He gives us no criteria for determining when other institutions should be able to overrule the Supreme Court. And what are his suggestions assuming there were some class of decisions open to political reversal? As far as I’ve been able to glean from his position paper, they come down to:

  • The Executive has unilateral power to nullify rulings on “certain national security” issues.
  • “[A] nationwide watchdog” group will be charged with “monitoring the courts and engaging the state legislatures whenever the courts behave radically.” Who knows what “radically” means other than perhaps decisions Gingrich dislikes.
  • State officials could “issue warnings to the federal judiciary about the consequences of the judicial branch exceeding its powers.” I defy anyone to explain what this means.
  • When Congress and the President disagree with the court, or as Gingrich puts it when “it is two branches against one,” the Court can be ignored, at least in an “area where the Constitution empowers the executive and legislative branches.” Of course every piece of legislation involves the consent of two branches, and since legislation is presumably within their power. So what does this mean? No idea.
  • Taking a cue from Lincoln, the President could order agencies “in certain circumstances” to interpret Court rulings as applying only to their facts, and not establishing broader rules. What circumstances?
  • Congress could go to war with the Courts by stripping jurisdiction and reducing or eliminating funding. Why and when?

Contrast this with other conservative targets of ire. Immigration? We’re told the problem is too many illegal immigrants and that the solution is building an electric wall. Terror? We’re told the problem is terrorist attacks and that the solution is war and torture. The economy? We’re told the problem is unemployment and that the solution is drastically cutting government spending. I don’t agree with any of these, or even the less caricatured versions of them, but at least they cite problems and suggest solutions, ones that can involve the public in debate.

I think, on the merits, Gingrich is wrong that there’s an actual emergency here, of whatever nature. I gather he fails to appreciate fully the dynamic institutional framework that we actually have. But, more fundamentally and narrowly (!), I disagree with Posner that anything Gingrich has said or written deserves serious consideration. Posner, himself, has very interesting things to say on this topic. Gingrich does not.