September 15, 2005
Book Thirty-Four
At a suggestion, some time ago, from Marty Lederman, I began reading just about everything I could find by Charles L Black (whose portrait in the law school I have come to pass almost as often as Alexander Bickel's). This project has more-or-less culminated in Black's book (three lectures, really): Structure and Relationship in Constitutional Law.
Like most everything I've read by Black it is both novel and prophetic, fabulously written, persuasively argued, and basically wrong. The two fundamental arguments of Black's book appear to be 1, that federal courts ought to strike things down (chiefly state-level things, not federal-level things) even when they offend no legal text, on the basis of ahistorical atextual inferences from some unexplained and contested view of What It Is To Be A Nation and 2, that while there are indeed legitimacy and countermajority problems with judicial review of federal action there are absolutely none with respect to federal judicial review of state laws:
There simply is no problem about the fundamental legitimacy of judicial review of the actions of the states for federal constitutionality. Article VI says as much, literally and directly.
As to Theory 1, I do share much of the intuition that things like separation-of-powers, unitary-executive, and other review might rest on something a little stiffer than the Constitution's vesting clauses. But I am ultimately unconvinced that Black's structural review-- to the extent it is divorced from historical evidence of original meaning-- would be helpful, or indeed that it would be anything other than ultra vires.
Theory 2, is, I suppose, less controversial. Justice Holmes famously endorsed it
Nothing in Article VI (the much-vaunted Supremacy Clause) says that the Supreme Court is entitled to conclusive-and-un-challengeable determination of what the Constitution means with respect to a state's action. Article VI says that the Constitution trumps state law, but provides no hint as to who is in charge of saying what the Constitution means when crisis ensues. That debate was only solved by the balance of political power during the nullification crises of the Civil War and of the Civil Rights Movement. Which is to say that it is really a structural point, like the one's Black makes in the first part of his book.
Ultimately, this is what worries me about Black's project. It does seem to me that there might be judicially-enforceable structural implications of the U.S. Constitution, but not the ones that Black suggests, and the ones that do exist are ones Black hooks on dubious texts instead. Given all that, why suppose that the project is going to be sufficiently determinate in any useful sense?
UPDATE: I should add, before I am accused of hastily knocking a great legal classic, that the book has plenty of valuable and fascinating parts-- these take place mostly at the level of the trees rather than the forest, but they are there throughout the book, which is what made it worth reading, even if you remain unconvinced (as I do) about the judicially-enforceable implications that Black purports to deduce from the fact of our existence as a federal nation.
UPDATE TWO: Adrian Vermeule writes to inform me that I have misremembered his stance. When his book comes out, he will agree with me (and Bickel), not Holmes.
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Our own special case
Hillel Levin continues to investgate legislative reactions to Kelo-- the Supreme Court's expansive decision permitting local governments to use (or delegate) their eminent domain power essentially without federal judicial review. He notes a recent Texas statute that restricts eminent domain abuse while providing an exemption for the much-loved Cowboys' desire to bulldoze homes in the interests of a new stadium:
(I)f the Cowboys get a special dispensation, you have to wonder how much people really care about Kelo.
This misses the point, first because sports teams frequently drive localities to do truly stupid things, but secondly and more importantly because the existence of a "special dispensation" from a principle doesn't prove that the principle isn't important. Instead, it establishes why the principle was constitutionalized in the first place.
The temptation, whether in cases of free speech, private property, religious exemption from generally applicable laws, or whatever else, is often to concede that of course the principle of freedom is important, but that this case, for some reason or another, creates a pressing public need. Liberty can do well when pitched at a high level of abstraction but has a harder time winning on a case by case basis.
We choose to pass constitutional restrictions against our legislators precisely because we understand this risk, and know that it is easier to hold them back wholesale rather than retail. Michael Stokes Paulsen made this same point in the context of religious freedom:
Part of the problem with the Justice Department's approach to issues of free exercise accommodation is that, viewed in the context of any one particular case, the religious claimant seems, from institutional Government's perspective, to be a crank (or a Trojan Horse hiding cranks to be let loose in the night).Michael Stokes Paulsen, A RFRA Runs Through It, 56 Mont. L. Rev. 246 (1995)
Similarly, any given person who stands in the way of the steamroller of progress seems so unreasonable given the public interests at stake. Even if Texas can't manage to hold true to the principle in every case, they should be commended for understanding why there is a principle at all.
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Comments, a Concurring Opinion
I apologize in advance to all those readers for whom this is a little too-inside-baseball.
Tyler Cowen has recently been experimenting with opening comments on various posts on Marginal Revolution. Similarly, I have softened from my original despotic suppression of the "comments" function on this blog. Cowen has learned 1, that comments increase page views and visits but not terribly usefully, 2, that keeping comments open too regularly dilutes them of value, and 3, that people are more helpful on questions like good chinese restaurants or continuity in Buffy the Vampire Slayer than the merits of evolution and intelligent design.
These findings more or less correlate with my own, which is why I'm happy with the way comments have shaped up on this blog. They should not be a default, but there are occasional times when the signal can outclass the noise.
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Collective Information
"Death" has set up a forum for people to share clerkship notification news/gossip online and anonymously. Since these things are useful only if they become focal points, I encourage readers to use and promote this one.
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The Hunt
Good luck to all of those nervously awaiting clerkship calls today; congratulations to all of those who have already gotten them for moratorium-jumpers.
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