Lawrence Friedman on the Aridity of Constitutional Law Scholarship

I'm proud to say that Lawrence Friedman, America's foremost legal historian, was my mentor during (and after) my  graduate legal studies at Stanford Law School. He remains among the most professionally impressive and personally influential scholars I have ever known, never wavering from his commitment to avoid writing anything dry and uninteresting.

Lawrence's most recent publication, "Law and Economics in Society," published in the Hofstra Law Review (Vol. 39, page 487), and presumably based on a lecture he gave there, is, as usual, full of wit and wisdom. In it, he criticizes some (but not all) practitioners of Law and Economics for ignoring both the limitations of economics and the advantages of  other social-scientific approaches to understanding the operation of  law in society. My favorite part of his new paper, however, is towards the end, where he laments that neither Law and Economics nor any of the other social scientific approaches to law have appreciably influenced certain "citadels" of legal scholarship, most notably constitutional law:

Most legal scholarship is sadly lacking in rigor and objectivity. Every year, law reviews publish thousands of pages of old-fashioned legal writing - blind to the realities of society, incurably solipsistic, and inbred. To be frank, constitutional law is a particularly arid field. It seems incurably devoid of interest in empirical data. Its very success, its very relevance to public issues, breeds scholarship that is either pure ideology and punditry, or the elaborate exposition of doctrines that make little or no difference to outcomes, to life in society, or reality. Most writing in the field is bloated, dismal, and biased. Many of the scholars seem eager only to spin out their own pet theories which rest on their own particular prejudices, and pass these off as some sort of eternal truth. As a legal historian, I find the pseudo-history of some constitutional lawyers, the habit of passing off their normative arguments as history, particularly irksome.... As an amateur legal sociologist, it bothers me that legal scholars seem so uninterested in whether doctrines and decisions make any difference in the real world. Maybe they assume that anything the Supreme Court says has some magic effect in society. Almost all of the "impact studies" come from political scientists. Nobody else seems to see any use for actual data. (495). 

I agree entirely with Lawrence's argument, but even if you don't, you must admit it's not dull!

Susan Seven-Sky v. Holder

The D.C. Circuit has issued a ruling upholding the constitutionality of the individual mandate of the Affordable Care Act (the federal version of Romneycare). The opinions are here. Two interesting features of the majority opinion: (1) it was authored by Judge Lawrence H. Silberman, a very conservative jurist appointed by President Reagan; and (2) it relies heavily on the precedential value of that old New-Deal chestnut, Wickard v. Filburn, 317 US 111 (1942), in which the Court ruled that the federal government could regulate, under the Commerce Clause, wheat grown by a farmer for his own consumption.

Perhaps I'm overly cynical, but I wonder whether Judge Silberman, who expressly notes in his opinion that the Supreme Court will ultimately decide on the constitutionality of the individual mandate, was merely teeing up Wickard v. Filburn, hoping that the Supreme Court might strike it down along with the individual mandate. The Roberts Court certainly has not been hesitant to overrule well-established Supreme Court precedents extending back many decades. See Citizens United.

Justice Stevens on the Supreme Court

I just finished reading Justice Stevens highly readable, insightful, and surprisingly substantive book, Five Chiefs: A Supreme Court Memoir (Little, Brown 2011). Always an engaging writer, Justice Stevens provides a highly personal account of his tenure on the Court, organized around the five Chief Justices with whom he served. Along the way, we learn about his personal history and path to the Court, how the Court functions on a day-to-day basis, the almost invariably warm personal relations among the justices (which doesn't prevent Stevens from taking issue with several of his colleagues or pointing out their endearing or not-so-endearing character traits), and Stevens's views about various landmark cases decided by the Court, while he was a member. This book is highly recommended for all readers with any interest in the US Supreme Court and constitutional, regardless of prior expertise. It should be required reading for all law professors and students.

What If?

I'm attending a very interesting conference this morning organized by my esteemed colleague Gerard Magliocca, and sponsored by the Indiana Law Review, on "What If? Counterfactuals in Constitutional History."

I've long been a fan of counterfactual analysis in law. I've even written a couple of  related articles (one of which is available here) based, in part, on a constitutional counterfactual question: What if the Fifth Amendment to the US Constitution did not include the Taking Clause? Put differently, how much of a difference does constitutional/judicial protection of private property from government over-regulation and expropriation really make? By comparing constitutional protection of private property in the US with the system of almost purely political protection of private property in the UK, I concluded that the case for constitutional protection is not very strong.

Today's conference includes several interesting panels, featuring  papers by a wonderful group of panelists, including:

Amanda Tyler on "The Counterfactual that Came to Pass: What If the Founders Had Not Constitutionalized the Privilege of the Write of Habeas Corpus"

Ilya Somin, "What If Kelo Had Gone the Other Way?"

Alison LaCroix, "What If Madison Had Really Won? Legislative v. Judicial Supremacy"

Kim Roosevelt, "What If Slaughterhouse Had Been Decided Differently?"

Heidi Kitrosser, "What If Daniel Ellsberg Hadn't Bothered?"

Carlton Larson, "What If Chief Justice Fred Vinson Hadn't Died in 1953?"

Judge Posner on Gun Control and Federalism

Over at the Becker-Posner blog (here), Judge Posner notes the

unwisdom of the Supreme Court’s recent decisions that have created—on the basis of a tendentious interpretation of the drafting history of the Second Amendment and an intellectually untenable (as it seems to me) belief in “originalist” interpretations of the Constitution—a constitutional right to possess guns for personal self-defense. The result is to impose a significant degree of nationwide uniformity on a problem that is not uniform throughout the nation. The case for private gun ownership is much stronger in largely rural states, such as Arizona—states in which there is a deeply entrenched and historically understandable gun culture and a rationally greater lawful demand for private gun ownership than in the suburban areas of the densely populated midwestern, northeastern, and mid-Atlantic states—than it is in big cities with high crime rates—cities that have long had very strict gun laws many of which may now be ruled unconstitutional. 

I find appealing Judge Posner's argument  that different states should be allowed to have different levels of gun control based on their respective histories, norms, and demographics (e.g., rural v. urban populations). The problem, of course, is that, even if everyone concedes the bankruptcy of "originalism," it would be very difficult for the Supreme Court (or any court) to apply constitutional mandates and limitations non-uniformly from one state to another.

Of "Judicial Activism," Ideology, and the Affordable Health Care Act

Four judges have now assessed the constitutionality of the Affordable Health Care Act's insurance mandate. Two Clinton appointees have upheld the Act. One Reagan appointee and one Bush appointee have ruled that it violates the constitution. Obviously, two of the judges are misinterpreting, perhaps intentionally, the constitution, right? It must be those pesky "judicial activists." But are they the Clinton appointees or the Republican appointees?

My guess is that most readers, including law professors, will know the answer to that question with absolute certainty and sincerity. But their answers will differ. The numbers supporting one side or the other may not be equal, but they will be close enough to raise a serious question about the inherently political nature of constitutional judicial review.

Notwithstanding the claims of Justice Scalia, the constitution itself is not a sum certain, but is amenable to multiple, legitimate, but mutually exclusive, interpretations. Ambiguities inherent to the constitutional document itself provide the opportunity for politicized judicial review, and allow for both sides to claim that judges on the other side are engaged in "judicial activism."

On This Date

On January 20, 1801, John Marshall is appointed Chief Justice of the US Supreme Court, arguably the most momentous decision in the history of US constitutional interpretation.

The Health Insurance Mandate in the Courts

As all the news outlets are reporting (e.g., here), a Virgina court today invalidated the Health Care Law's insurance mandate. Judge Henry E. Hudson's ruling in Virgina v. Sibelius can be read here. Importantly, the judge declined to stay implementation of the law while his decision is appealed.

I am not a constitutional commerce-clause expert, but I have previously blogged (here) about my belief that the insurance mandate is constitutional because the government, as long ago as the Second Militia Act of 1792, signed into law by President George Washington, required citizens to supply their own muskets and other equipment. Judge Hudson neglects this history.

The law blogs are all abuzz about Judge Hudson's decision. I am persuaded by a couple of negative reviews from  relatively conservative (but eminently fair-minded) commentators, including my colleague Gerard Magliocca (at writing at Concurring Opinions here) and George Washington University Law Professor Orin Kerr (writing at The Volokh Conspiracy here), each of whom finds Judge Hudson's ruling to contain important legal errors.

Today's decision was the third federal district court ruling on the constitutionality of the Health Care Act, and the first to rule against any provision of the statute. Interestingly, the first two federal judges who upheld the statute were both Clinton appointees. Judge Hudson is an appointee of George W. Bush. Do you suppose  ideology/party affiliation have anything to do with the respective outcomes?

UPDATE: According to reports (e.g., here), Judge Hudson, who ruled against the Health Care Act today, holds a stake of between $15,000 and $50,000 in a Republican consulting firm that lobbied against the Act's passage in Congress. This is reminiscent of BP oil spill case, where judges with substantial financial stakes in the gulf oil industry ruled against the Obama Administration's moratorium on deep-sea exploration and drilling (see here and here).

Happy Birthday Charles A. Beard (1874-1948)

A progressive American historian, who was an early proponent of economic analysis of legal institutions. His 1913 book, An Economic Interpretation of the Constitution of the United States, challenged the orthodox view that the founding fathers were purely publicly-minded individuals, devoid of self-interest. Beard's book, and his radical form of historiography, fell out of favor after the Second World War, in part because of Beard's opposition to US involvement in the war. Nevertheless, his economic approach to understanding the constitution remains influential today, at least among legal scholars. A simple Lexis search indicates  that An Economic Interpretation of the Constitution of the United States has been cited in law review articles more than 150 times since 1999.

John Pistole Should Resign

TSA Administrator John Pistole is under fire for the new "enhanced security" measures recently introduced at US airports, which presumes that all American air travelers are criminals. For his part, Pistole defends the security measures as "a crucial development to guarantee the safety of travelers" (see here). This is complete BS, as anyone would know who has read John Mueller's expose, Overblown: How Politicians and the Terrorism Industry Inflate National Security Threats, and Why We Believe Them (Free Press 2006).

I was not on the faculty when Pistole received his legal training at our law school. Nevertheless, as a faculty member, I am embarrassed that one of our esteemed graduates, with responsibility for a very powerful federal agency, has so little appreciation for the basic civil liberties that are supposed to limit government authority. Under Pistole's directive, the government is treating all air travelers just like common criminals. Such  treatment is intolerable and, in my view, patently unlawful (for reasons set forth by Marc Rotenberg here).

Even if the new security measures make travelers safer (a claim the TSA has yet to substantiate no doubt for reasons of national security), that does not make them either lawful or constitutional. Moreover, the price of safety can be very high. While the TSA protects us from terrorists, who will protect us from the TSA? I am reminded of an observation made by the famous Polish dissident Jacek Kuron at a symposium I attended several years ago: the safest societies are police states.

Hopefully, the political outcry and lawsuits will force the out-of-control TSA to back down, and lead to Pistole's resignation.

UPDATE: I have read that President Obama has defended the new security measures as "necessary" to airline safety. He should know better than most that what is "necessary" is not necessarily constitutional. His predecessor has claimed that waterboarding was "necessary." In the past, other politicians have claimed that internment of Japanese Americans was "necessary" or that Indian removal was "necessary." I used to think Obama would make a good Supreme Court Justice - perhaps a better Justice than a president. Perhaps I was wrong.