Beyond the System

A central goal of Eloquence and Reason is to uncover the cultural-legal process by which constitutional ideas emerge as governing ideals. The book necessarily focuses on the actions of those who participate directly in the system: judges, politicians, lawyers, and activists.

But it's fair to wonder about the processes that largely escape the control of political or legal institutions. One of those domains is art. To what extent does art inform or disrupt constitutionalism? The intersection of popular culture and law is well worth mining.

Artists such as Langston Hughes bore witness to the New Deal and America's participation in World War II, two of Franklin Roosevelt's greatest achievements. In a new paper, Langston Hughes: The Ethics of Melancholy Citizenship, I analyze this twentieth century figure's poetry as a theory of democratic participation.

The abstract follows:

As a body of work, the poetry of Langston Hughes presents a vision of how members of a political community ought to comport themselves, particularly when politics yield few tangible solutions to their problems. Confronted with human degradation and bitter disappointment, the best course of action may be to abide by the ethics of melancholy citizenship. A mournful disposition is associated with four democratic virtues: candor, pensiveness, fortitude, and self-abnegation. Together, these four characteristics lead us away from democratic heartbreak and toward renewal. Hughes’s war-themed poems offer a richly layered example of melancholy ethics in action. They reveal how the fight for liberty can be leveraged for the ends of equality. When we analyze the artist’s reworking of Franklin Roosevelt’s orations in the pursuit of racial justice, we learn that writing poetry can be an exercise in popular constitutionalism.

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Reply to Lowndes

At the end of his many generous comments about Eloquence and Reason, Professor Lowndes poses four incisive questions meant to test the book's theoretical implications. First, Joe wonders whether there are certain unalterable baselines or preconditions for the model of constitutionalism to work, such as a liberal commitment to property rights. He correctly observes that the book's theory of constitutional change as linguistic transformation is intended to be supple and descriptively accurate without giving up on the possibility of constraints. The answer about minimal conditions is an important and unfinished part of the project.

I focus on structural constraints such as institutional consensus and cultural practices (e.g., ways of talking about constitutional rights and political beliefs). To the extent that facility with language is important, one's ability to acquire the basic tools necessary to participate meaningfully in deliberation (and thereby sustain a constitutional culture) ought to be made a system-wide priority. I wouldn't exclude the possibility that some minimal rights could be part of every citizen's toolkit, such as those fostering autonomy and the capacity to deliberate, but my inclination is to see property rights regimes more as particular manifestations of liberalism (of which there are many) rather than as necessary to democratic constitutionalism itself.

Joe astutely notes that much constitutional law is driven or constrained by the preferences of political elites. This is true. Any model that hopes to have explanatory power while resembling the American system must account for: (1) an original design decision to make it difficult to alter the system in a profound manner; and (2) our particular history, which is littered with those who failed in their efforts at political transformation. There must be some convergence of political beliefs and instrumental reasons for acting before lasting change can occur. The challenges faced by those interested in regime change prove to be a source of endless frustration, but essential to test the claims of the many who would stake a claim to govern based on the Constitution. It's not easy to re-write the Constitution, nor should it be.

Second, Joe wonders whether repeated invocations of an imaginary "people" obscures divisions based on race, culture, and income. My answer is yes, though to some extent this must happen. Obscuring or suppressing differences is important to the project of creating community over time, and it is especially necessary if one is interested in pursuing a transformative agenda. This is true whether a president is attempting to rally the public or an activist is seeking to promote racial equality. At the same time, I want to stress that democracy can only work if citizens are capable of nurturing a dream that departs, sometimes painfully, from their daily existence. A critical faculty, therefore, is essential to what I have called "rhetorical autonomy": each citizen's sovereign authority to challenge, contest, or reject official interpretations of the Constitution. In reality, I think most Americans understand the difference between an imagined America based on mutual aspirations and one that is rife with inequality and difference.

Third, Joe notes that the model of linguistic transformation depends on boundaries between lawful popular action to interpret the Constitution on the one hand, and mob activity or violent revolution on the other. He worries (and rightly so) that judicially-sanctioned boundaries may be too constraining in the face of severe deprivation. My efforts on this point are a partial answer to popular constitutionalists, a number of whose work suggest that all out-of-court actions to make sense of the Constitution are equal. A distinction between legitimate and illegitimate ways of constructing the constitution through popular means is predicated on an existing written Constitution as well as acceptance of certain rule-of-law values, two of which are reason and necessity. As I suggest in Chapter Four when I discuss how the Justices reshaped First Amendment law to accommodate peaceful civil rights protest, even rule-of-law boundaries are contestable by those in dire straits, though I think they cannot be ignored—unless we find ourselves in a truly revolutionary break, in which case institutions no longer constrain and the most settled founding ideals are up for grabs.

Fourth, Joe urges investigation of other democratic actors beyond individuals and social movements. I shall take up his invitation. One of the things illustrated by Joe's work is the darker side of popular culture sustaining our democratic discourses. It's undeniable that the same mobilized war discourse that fostered incremental gains on race and religion in the 1940s and 50s also was harnessed to ostracize dissidents such as communists, certain sectors of the labor movement, and other perceived foreigners. These events, too, are part of our constitutional culture. The challenge going forward is to integrate the darker aspects of a linguistic regime with its official and aspirational features. Which beliefs and actions are unfortunate but unavoidable, and which aspects of a governing regime can participants reasonably resist? The answers are not purely of academic interest, for they are likely to guide everyday decisionmaking.

Constitutional Borrowing

A robust constitutional culture will permeate the beliefs and actions of individuals, sometimes subtly, sometimes in highly visible ways. For instance, as I argue in Eloquence and Reason, the rise of the First Amendment to its privileged place has encouraged advocates and jurists to draw upon the ideas of free speech, assembly, and religion in order to bolster or dislodge a wide array of governing values.

In Constitutional Borrowing, 108 Michigan Law Review (forthcoming 2009), Nelson Tebbe, Brooklyn Law School, and I tackle a number of the questions presented by a legal order in which the interpenetration of ideas is the norm.

The abstract follows:

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains surprisingly underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of cross-pollination, and identifies some of the risks involved. We invite readers to think of borrowing as something that happens not only during the drafting of a constitution, but also in its implementation. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated with liberty, on the one hand, and equality, on the other. We finish by discussing how confronting the practice of borrowing may illuminate or improve prominent theories of constitutional lawmaking.

Reply to Fleming

I am honored that Professor Fleming has taken the time to read my book so carefully. Jim raises three kinds of questions of Eloquence and Reason: (1) the book's methodology and theoretical aims; (2) its causal claims about the Gobitis to Barnette sequence; and (3) its characterization of the Lawrence Court's deployment of the First Amendment on behalf of sexual autonomy. I'll take these up in turn.

I. General Comments

Jim wonders whether the book argues that the First Amendment is the "defining feature" of American constitutional culture or is simply interested in exploring First Amendment subculture. The answer is both, to varying degrees: I am primarily interested in explicating the contours of the political belief system and grammar we together call "First Amendment law." I am concerned with how that emerged over time, and, as a theoretical matter, how broader institutional and cultural processes gave us the modern First Amendment we have. That said, Eloquence and Reason also contends that, for better or for worse, and as originally designed or not (I think probably not), the First Amendment has come to dominate both the development of legal doctrine and ordinary Americans' attitudes about the Constitution. Because the book focuses on a handful of case studies during the twentieth century in the name of theory, it necessarily offers an incomplete history and partial ethnography. But, even though its sources consist of the writings and speeches of judges, lawyers, and elected officials, once more work is done I would expect to find that First Amendment ideas influence how ordinary people think of the Constitution.

When the book analyzes metaphor, it endeavors to make a general defense of the practice of transmitting constitutional ideas in metaphorical terms, while leaving room for just the kind of critique of specific metaphors that Jim offers of the "marketplace of ideas."

II. Gobitis to Barnette

Jim is skeptical that executive branch action did much, if anything, to cause the Supreme Court's shift from one position to another. I don't deny the role that personnel changes and changes of mind played, but argue that everything occurred in an environment shaped significantly by presidential action. While the Supreme Court was going to have to hear Walter Barnett's appeal, there are a few ways presidential language may have "caused" the outcome and content of Barnette:

1. To the extent that presidential rhetoric flooded public discourse, its basic thematic opposition to the logic of Gobitis (especially its claim that security and liberty stand in opposition) weakened that decision's capacity to gain popular assent.

2. Presidential words and executive branch actions, coupled with a refusal to endorse Gobitis publicly, signaled to the High Court a refusal to cooperate in enforcing its constitutional vision.

3. Presidential emphasis of the right to speech and religion between the years of 1940 and 1943 empowered pro-rights advocates. These included members of the media, high officials, DOJ lawyers, lawyers for the litigants, and receptive members of the Supreme Court, who specifically mentioned FDR's speeches and argued that Gobitis interfered with the president's priorities.

4. Presidential emphasis on the First Amendment may have inclined those within the administration to favor the following changes to Supreme Court personnel: Stone to Chief Justice, Robert Jackson for Stone's seat, and Wiley Rutledge for Jimmy Byrnes. Each of these individuals opposed Gobitis.

5. These words not only wrapped the plight of the Jehovah's Witnesses in major war-inspired themes but also offered a roadmap to follow should the Court wish to present a united front regarding the president's war agenda.

To be fair, I delve more deeply into these historical and theoretical claims in a subsequent article, Reconsidering Gobitis. My posts here, here, and here discuss archival materials suggesting that DOJ lawyers sought to overturn Gobitis and that extra-judicial statements by the executive branch impacted the Court's decisionmaking.

Footnote Four of the Carolene Products decision is important to contemporary theory. But here is where I fear Jim may be reading too much back into the past. Footnote Four cites a few First Amendment cases for the proposition that certain rights trigger "more exacting judicial scrutiny," and is a bit cagey at that (specifically mentioning "dissemination of information," "interferences with political organizations," and "peaceable assembly"). It does not explicitly use the "preferred position" formulation or otherwise place First Amendment rights above other non-economic liberties. Harlan Fiske Stone's Gobitis dissent mentions the process-clearing and "discrete and insular" rationales, but it nowhere claims that the First Amendment is to be privileged over other political rights. It's in his Opelika I dissent that Stone explicitly employs that formulation for the first time: "the Constitution, by virtue of the First and the Fourteenth Amendments, has put those freedoms in a preferred position." This more subtle reading of the decisions shows that a political order privileging the First Amendment was on the ascent during this period, but that it was not built all at once in 1938, nor complete by 1943.

III. Autonomy

Jim is among the most eloquent and committed defenders of individual autonomy today. And I quite agree that in the pluralistic order most of us accept today, it is absolutely essential to reconceive how the law can respect people of diverse experiences and life plans so as to promote human flourishing. But I don't pretend that sexual autonomy was on the minds of the Founding generation or that it is self-evident from the handful of cases decided. Rather, any right of autonomy must be (as Jim's own labors attest) constructed, articulated, and defended in ways that, if we are honest, will have seemed foreign to the generation that authored original text but will be persuasive to us living today. For me, Lawrence v. Texas is defensible on any number of grounds. So when I point out that the Lawrence Court has drawn on the First Amendment to "reconstruct" the notion of sexual privacy, I mean the following:

First, normative theory must be rooted in historicity if it hopes to persuade. Despite the fact that Justice Douglas may have downplayed the First Amendment over successive drafts, the published decision in Griswold v. Connecticut nevertheless draws heavily from First Amendment examples in its articulation of the various "zones of privacy." That Douglas was initially inclined to draw on the First Amendment more aggressively is compatible with the claim of Eloquence and Reason that the First Amendment has an influence—perhaps too much influence—on contemporary adjudication. For it's possible to say that being too wedded to the First Amendment may have prevented a more full-throated articulation of autonomy.

Second, Bowers v. Hardwick did violence to the emerging jurisprudence of privacy or autonomy; hence, the need for "reconstruction" of liberty insofar as human sexuality is concerned. Among other things, that decision appeared to make liberty turn on sexual preference (if the Court wished to return to some kind of privacy-is-for-procreation formulation, it should have overruled Eisenstadt v. Baird). But Bowers, while it damaged then-existing doctrine, also was a "socially plausible" reading of the Constitution in 1986. That social attitudes change, I think, is appropriately if cautiously acknowledged in Lawrence.

So, then, if I think Lawrence is socially plausible in 2003, normatively defensible, and even worth celebrating, what do I mean when I say that it is still necessary to engage "the hard work of making lasting connections" between the First Amendment and sexual liberty?

Just this: the cases do not articulate well why the right to free speech is implicated by the choice of sexual partners, for straights or for gays. Instead, Lawrence (incorporating Griswold and Casey) trades on widely-accepted belief in expressive values (by the way, I agree that today there is popular support for some notion of sexual autonomy). This type of appropriation and synthesis is a staple of constitutional decisionmaking--indeed, I have argued as much. But that doesn't change the fact that connections between domains of constitutional knowledge should be elaborated rather than merely asserted. Like the talented theorist he is, Jim points out that earlier cases already suggested that autonomy implicates expressive values. But those controversies involved making choices about whether or not to beget a child, and more importantly, the rulings only gesture in the direction of speech and association.

Do sexual choices really speak to the world in a coherent way or are they better understood as control over one's body or resistance of control by others? If sexual choices are expressive, under what circumstances? When securing the durable assent of elites and the general population is the name of the game, it's important to tend to these matters—if not in Lawrence, then down the road. Most of these questions having to do with persuasiveness lie beyond the scope of my book, which demonstrates only why arguing over liberty in such terms may be legitimate. Eloquence and Reason ends right around where Securing Constitutional Democracy begins.

When Does the Supreme Court Acknowledge Out-of-Court Developments?

Cross-posted at Legal History Blog:

What do Brown v. Board of Education, West Virginia State Board of Education v. Barnette, and Lawrence v. Texas and all have in common? All three rulings expanded constitutional freedoms by invalidating a state law or local practice. In each instance, the Justices faced the prospect of overruling a much criticized opinion, which they did more or less in vindicating a pro-rights position. Where they diverged dramatically is in the extent to which decision makers proved willing to acknowledge that external events helped alter their jurisprudence.

Imagine a sliding scale measuring the transparency of a jurist's treatment of how cultural change impacts doctrinal content. Lawrence is most open about out-of-court factors causing "serious erosion" of controlling precedent. Justice Kennedy discusses two types of influences: (1) the actual practice of enforcement of anti-sodomy laws, which imposes a "stigma" and "carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example"; and (2) "substantial, and continuing criticism, disapproving of [Bowers v. Hardwick's] reasoning in all respects," from academic objections to disapproval by state courts, international courts, and foreign nations.

Barnette comes next, as the published decision, too, contains references to academic objections to Gobitis and the collateral legal consequences faced by the Jehovah's Witnesses. But the Court was originally poised to go further. Early drafts repeatedly referenced the "responsible statements of the Department of Justice," "psycopathic patriotism" unleashed by Gobitis, the drawbacks of the "flag salute movement," and the Nazi persecution of Jehovah's Witnesses abroad. Jackson eventually acceded to the concerns of his law clerk and Harlan Fiske Stone that these statements were unseemly or violated the canons governing judicial craft. Instead, Jackson gutted Gobitis largely by disagreeing with its reasoning point by point.

On this scale, Brown, perhaps the decision in which the average citizen most expects to find a resounding recitation of the degradation inflicted by the law, proves least willing to confront the social world directly. The only changed circumstance discussed at any length is not altered moral views on segregation or systemic harms exacerbated by the courts, but rather the evolving importance of public education. That social fact is cited to avoid a strong originalist methodology as well as to distinguish Plessy v. Ferguson but not overrule it outright. Even before the Justices could agree to end racial segregation in schools, they were united against inflaming the people's passions unnecessarily.

This raises questions that the study of history can help answer. First, under what circumstances do judges feel free, or even under some pressure, to acknowledge out-of-court developments? On this view, the Supreme Court may have felt most confident that it was jumping on the bandwagon in Lawrence, but was most reticent in Brown. But were the Justices responding to elites or broader attitudes? To what extent did it matter that they were dealing with race, religion, or sexual orientation?

Second, how much of the difference in presentation is due to changing norms of judicial writing? According to this way of thinking, the legal process school still constrained how legal outcomes were explained in the mid-twentieth century but by 2003 we had not only all become realists, many of us had become social scientists as well. Do changes in presentation reflect a relaxed orientation on the part of jurists or an accommodation of what consumers of judicial opinions expect?

Third, the Supreme Court's portrayal of its own work may reveal competing, equally plausible models of representative democracy. Brown contemplates judicial participation in constitutional lawmaking, but arguably treats reason as something ideally practiced according to relatively self-contained precepts; denying extrajudicial influences preserves some notion of integrity. Lawrence, and to a lesser extent Barnette, may represent a more unruly approach, in which "public reason" is achieved in a complicated dance involving institutions interacting with broader social forces. If so, such a model may be less pretty or intrinsically coherent, but its virtues may lie in the mediation of historical complexities as forthrightly as possible.

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