Substitute Arguments in Constitutional Law

In this article, I argue that that substitution is crucial to our practice of constitutional law. Of course, if one wished, one could easily extend the domain of substitution beyond these boundaries. Substitute arguments are an important aspect of law more generally and, indeed, of life. I have nonetheless chosen to limit my discussion to constitutional substitution because, I believe, overt discussion of substitution in this particular area illuminates important aspects of our constitutional regime-–aspects that substitution itself regularly obscures. To put my central point directly, I hope to show that constitutional law amounts to one, giant substitute argument

Can Free Speech Be Progressive?

Free speech cannot be progressive. At least it can\u27t be progressive if we are talking about free speech in the American context, with all the historical, sociological, and philosophical baggage that comes with the modern, American free speech right. That is not to say that the right to free speech does not deserve protection. It might serve as an important side constraint on the pursuit of progressive goals and might even protect progressives against the possibility of catastrophic outcomes. But the notion that our free speech tradition might be weaponized to advance progressive ends is fanciful. The American free speech tradition is too deeply rooted in ideas about fixed property rights and with an equation of freedom with government inaction to be progressive. Instead of wasting energy on futile efforts to upend our first amendment traditions, progressives should work to achieve their goals directly

Political and Constitutional Obligation

In his provocative, courageous, and original new book, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy, Abner Greene argues that there is “no successful general case for a presumptive (or ‘prima facie’) moral duty to obey the law.” In my own book, On Constitutional Disobedience, I argue that there is no moral duty to obey our foundational law–the Constitution of the United States. This brief article, prepared for a symposium on the two books to be published by the Boston University Law Review, I address three issues related to these claims. First, I discuss what seem to me to be important ambiguities in and problems with Professor Greene’s argument. Second, I defend my own stance against criticisms advanced by Greene and others. Third, I explore the relationship between his claims and mine

The Triumph of Gay Marriage and the Failure of Constitutional Law

The Supreme Court\u27s much anticipated invalidation of gay marriage bans improved the personal lives of millions of ordinary Americans. It made the country a more decent place. Even Chief Justice Roberts, at the conclusion of his otherwise scathing dissent, acknowledged that the decision was a cause for many Americans to celebrate. But although the Chief Justice thought that advocates of gay marriage should by all means celebrate today\u27s decision, he admonished them not [to] celebrate the Constitution. The Constitution, he said, had nothing to do with it . Part I of this article quarrels with the Chief Justice\u27s assertion that the Constitution had nothing to do with it. It argues that it is the dissenting justices, rather than their colleagues in the majority, who have ignored the traditions of American Constitutional law. Part II argues that the Chief Justice is exactly right when he says that we should celebrate the Obergefell decision, but not the Constitution, but he is right for reasons that he, himself, would disagree with. The Court\u27s decision marks a partial and flawed but nonetheless important advance toward inclusion and decency. The majority\u27s opinion, replete with invocations of the supposedly binding force of constitutional obligation, belittling of the large and growing number of Americans who are unmarried, and mischaracterization of the nature of the movement for gay rights, is exclusionary, reactionary, and authoritarian. Even as the Court demonstrates its (concededly limited) capacity to advance the cause of social justice, it unwittingly also demonstrates the failure of constitutional law to serve its core purpose of providing a just ground for cooperation among people who disagree about fundamentals. A brief conclusion discusses the implications of this failure

Critical Constitutionalism Now

The starting point for this essay is the claim that if the texts that critical scholars studied are unstable over time, then this must also be true of the studies themselves. There is no reason to suppose that the critical perspective, uniquely among all possible perspectives, reflects timeless and contextless truth. The question I want to ask, then, is what meaning the critical perspective has for us now in our new and dramatically transformed environment. I proceed in four parts. First, I address the meaning that critical scholars attributed to constitutional law in the late twentieth century. Second, I describe some of the features of the situation that produced this meaning. Third, I describe salient features of the current constitutional situation and how it differs from the situation from which critical constitutionalism emerged. Finally, I offer some suggestions for what critical constitutionalism means today

Out of Bounds

Lawrence v. Texas creates a crisis for inclusive constitutionalism. Too often, advocates of inclusion and tolerance wish to include only those ideas and groups with which they agree. The test for true inclusion and tolerance, however, is whether we are willing to protect groups when they engage in conduct of which we disapprove. It follows that the boundaries of inclusion cannot be established simply by moral argument; yet, any plausible version of constitutional law must use some method to bound the people and activity that it protects. Defenders of inclusive constitutionalism have not been successful in identifying a method, independent of moral argument, for bounding constitutional rights. This difficulty can best be addressed by modifying our ambitions for constitutional law. Instead of a method for requiring agreement, constitutional law might be reconceptualized as a method for destabilizing all boundaries, thereby reconciling groups with widely different moral views to the political order

A Thought Experiment

Herewith, Justice Antonin Scalia\u27s long lost dissenting opinion in Brown v. Board of Education

On Being Old Codgers: A Conversation about a Half Century in Legal Education

This conversation, conducted over three evenings, captures some of our thoughts about the last half century of legal education as both of us near retirement. We have edited the conversations so as to eliminate verbal stumbles and present our ideas more coherently, slightly reorganized a small part of the conversation, and added a few explanatory footnotes. However, we have attempted to keep the informal tone of our discussions