The Value of Dissent

This essay reviews Dissent, Injustice, and the Meanings of America by Steven H. Shiffrin (1999). Theorizing about the freedom of speech has been a central enterprise of contemporary legal scholarship. The important contributions to the debate are simply far too numerous to categorize. One ambition of this theorizing is the production of a comprehensive theory of the freedom of expression, a set of consistent normative principles that would explain and justify First Amendment doctrine. Despite an outpouring of scholarly effort, the consensus is that free speech theory has failed to realize this imperial ambition. Rather than searching for the global theory of the First Amendment, constitutional scholars are content to aim for a local theory; offering partial conceptualizations, local theories explain, justify, or critique some portion of free speech doctrine without attempts at global synthesis. Steven Shiffrin\u27s Dissent, Injustice, and the Meanings of America (hereinafter Dissent) stands squarely in the tradition of modest, localized theorizing about the freedom of speech. Rather than attempting to integrate all of free speech doctrine, he focuses on one free speech value: the value of dissent and its contribution to the illumination of particular First Amendment problems. This compact, densely argued, and brilliantly insightful book leaves free speech theory far the richer. Shiffrin has important things to say about flag burning, advertising, and racist speech. Moreover, Dissent addresses a topic that is all too often neglected by free speech theorists: the methods by which institutions other than courts, such as schools and the media, can promote the values of free speech. Throughout, Dissent never loses sight of its central thesis: The value of dissent is essential to understanding the freedom of speech. Part I of this review provides a brief exposition of some of Shiffin\u27s main points in Dissent. In part II, the author offers a critical analysis of Dissent’s central theory that the promotion and protection of dissent are central functions of the freedom of speech. In order to clarify Shiffrin\u27s central claims, he compares his analysis with John Stuart Mill\u27s famous defense of the liberty of expression in his essay On Liberty. Part III concludes with some observations about the lessons to be learned from Shiffrin\u27s successes and failures

Originalism and the Natural Born Citizen Clause

The enigmatic phrase natural born citizen poses a series of problems for contemporary originalism. New originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a natural born citizen was likely a term of art, derived from the idea of a natural born subject in English law--a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of citizens and not subjects, introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency. What was the original public meaning of the enigmatic phrase that establishes the eligibility for the office of President of the United States? There is general agreement on the core of settled meaning: some cases of inclusion and exclusion seem indisputable. As a matter of inclusion, anyone born on American soil with an American parent is clearly a natural born citizen. As a matter of exclusion, anyone whose citizenship is acquired after birth as a result of naturalization is clearly not a natural born citizen. But these clear cases of inclusion and exclusion do not exhaust the possibilities. John McCain\u27s citizenship was conferred by statute--perhaps before, but perhaps after his birth. That leaves John McCain in a twilight zone--neither clearly naturalized nor natural born. This essay explores the contribution of originalism as a theory of constitutional interpretation to the controversy over the meaning of the natural born citizenship clause. Part II of the essay explains the relevance of originalist constitutional theory to the controversy with special reference to the new originalism--the view of constitutional meaning that emphasizes public meaning of the constitutional text at the time each provision was framed and ratified. Part III argues that that the clause creates a problem for public meaning originalism--the phrase natural born citizen may not have had a widely shared public meaning in the late eighteenth century; the solution to this problem could be the notion of a term of art, in particular, the idea that the meaning of natural born citizen derives from the English concept of a natural born subject. Part IV considers the possibility that the original meaning of the natural born citizen clause is subject to an irreducible ambiguity. Part V concludes with reflections on the exemplary significance of the natural born citizen clause for constitutional theory

How \u3ci\u3eNFIB v. Sebelius\u3c/i\u3e Affects the Constitutional Gestalt

The thesis of this essay is that the most important legal effects of the Supreme Court\u27s decision in NFIB v. Sebelius are likely to be indirect. Sebelius marks a possible shift in what we can call the “constitutional gestalt” regarding the meaning and implications of the so-called “New Deal Settlement.” Before Sebelius, the consensus understanding was that New Deal and Warren Court cases had established a constitutional regime of plenary and virtually unlimited national legislative power under the Commerce Clause (which might be subject to narrow and limited carve outs protective of the core of state sovereignty). After Sebelius, the constitutional gestalt is unsettled. In Sebelius, five justices of the Supreme Court endorsed a view of the commerce clause that is inconsistent with the constitutional gestalt associated with the New Deal Settlement. A fissure has opened in constitutional politics, creating space for an alternative constitutional gestalt. The core idea of the alternative view is that the New Deal Settlement did not create plenary and virtually unlimited legislative power; instead, proponents of the New Federalism argue that New Deal and Warren Court cases establish only the constitutionality of particular federal programs and specific zones of federal power. The most important indirect effect of Sebelius is that it enables constitutional contestation over the content of the constitutional gestalt and the meaning of the New Deal Settlement. This is a revised draft and replaces the draft of October 16, 2012, which is now on file with the author

Public Legal Reason

This essay develops an ideal of public legal reason--a normative theory of legal reasons that is appropriate for a society characterized by religious and moral pluralism. One of the implications of this theory is that normative theorizing about public and private law should eschew reliance on the deep premises of deontology or consequentialism and should instead rely on what the author calls public values--values that can be affirmed without relying on the deep and controversial premises of particular comprehensive moral doctrines. The ideal of public legal reason is then applied to a particular question--whether welfarism (a particular form of normative law and economics) provides the sort of reasons that appropriate for legal practice. The answer to that question is no--to the extent that welfarism contends that the normative assessment of legal policies should rely exclusively on information about individual preferences, welfarism relies on deep and controversial premises of consequentialist moral theory that fail the test of public reason. The essay also investigates the thesis--advanced by Louis Kaplow and Steven Shavell--that any fairness principle (a nonwelfarist method of policy assessment) can violate weak Pareto (making everyone worse off). Whatever the implications of Kaplow and Shavell\u27s argument, it does not show that welfarism can provide public legal reasons. The essay concludes that law\u27s justifications should rely on normative principles that are accessible to reasonable citizens, whether they are theists or atheists, deontologists or consequentialists, moral philosophers or economists. Law\u27s deliberations should be shallow and not deep. Law\u27s reason should be public

Originalist Theory and Precedent: A Public Meaning Approach

Much ink has already been spilled on the relationship of constitutional originalism to precedent (or, more specifically, the doctrine of stare decisis). The debate includes contributions from Randy Barnett, Steven Calabresi, Kurt Lash, Gary Lawson, John McGinnis with Michael Rappaport, Michael Paulsen, and Lee Strang, not to mention Justice Antonin Scalia—all representing originalism in some form. Living constitutionalism has also been represented both implicitly and explicitly, with important contributions from Phillip Bobbitt, Ronald Dworkin, Michael Gerhardt, Randy Kozel, and David Strauss. Some writers are more difficult to classify; Akhil Amar comes to mind. And there are many other contributions to the debate. Opinions range from the view that precedent should invariably prevail over the original public meaning of the constitutional text to the polar opposite view, that precedent must give way to original meaning in almost every case. Here is the roadmap. Part I provides a brief introduction to contemporary originalism. Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court

On the Indeterminacy Crisis: Critiquing Critical Dogma

Critical legal scholarship challenges the liberal claim that modern western societies are characterized by the rule of law. The liberal conception of the rule of law, critical scholars contend, serves to mystify and legitimate the legal system and thereby obscure the real issues behind individual cases as well as the real nature of the legal system. Frequently, the claim that legal rules are indeterminate is the starting point for such a critique of the rule of law. What I call the indeterminacy thesis goes roughly like this: the existing body of legal doctrines-statutes, administrative regulations, and court decisions-permits a judge to justify any result she desires in any particular case. Put another way, the idea is that a competent adjudicator can square a decision in favor of either side in any given lawsuit with the existing body of legal rules. This article critiques the indeterminacy thesis as it has been developed in critical legal scholarship. Two assumptions related to the indeterminacy thesis are widely held by critical scholars. First, much critical scholarship assumes that the indeterminacy thesis always accurately describes legal phenomena. Second, critical scholarship frequently assumes that the indeterminacy thesis plays an important role in support of a related thesis, the mystification thesis- the claim that legal discourse conceals and reinforces relations of domination. I explore the problematic character of both of these critical claims and suggest that critical scholars have a long way to go in formulating indeterminacy as a workable proposition with real critical bite. Finally, I suggest that adherence to a strong view of indeterminacy is actually counterproductive to the program of critical scholarship

Construction and Constraint: Discussion of Living Originalism

Jack Balkin\u27s Living Originalism raises many important questions about contemporary constitutional theory. Can and should liberals and progressives embrace originalism? Can the New Deal expansion of national legislative power be given originalist foundations? Is there a plausible originalist case for a right to reproductive autonomy and hence for the Court\u27s decision in Roe v. Wade? Is the fact of theoretical disagreement among originalists evidence for the thesis that the originalist project is in disarray

The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection

A core insight of the legal realists was that many disputes are indeterminate. For example, in many appellate adjudications, respectable legal arguments can be made for both sides of the dispute. A contemporary reaction to the realist insight by critical legal scholars is expressed in the slogan Law is politics. This critical slogan might be elaborated as follows: in openly political activities, such as the legislative process or partisan elections, debate centers on issues of value and social vision that are outside the scope of legal reasoning. Judicial opinions merely dress up political decisions in the garb of legal reasoning. The realist insight and critical reaction challenge conventional notions about the selection of appellate judges on the basis of merit-a combination of legal expertise and judicial temperament. If appellate judges really render decisions on the basis of politics, then why should judges be selected (or elected) on the basis of merit? In his essay, Judging in a Corner of the Law, Professor Schauer has gone so far as to suggest that appellate judges need not be lawyers and certainly need not be experienced or excellent lawyers. Moreover, Schauer maintains, the skills and knowledge desirable in appellate judges are not even taught in law schools

Faith and Justice

What is the relationship between faith and justice? In particular, this Article will address the question of what a Justice of the United States Supreme Court should do, when her religious faith suggests that a case should be resolved in a way that is either inconsistent with the law or not justified by nonreligious, public reasons. May she rely on her religious beliefs to resolve a hard case? May she write an opinion that uses religious grounds to justify her decision? In this Article, I will undertake to elaborate and defend a distinctively liberal position concerning faith and justice. My thesis is that respect for the diversity of faiths requires that judicial decisions not be made or justified on the basis of religious faith. Rather, judicial decisions should be made and justified by public reasons that could be accepted by individuals from a diversity of faiths or no faith at all. Part I of this Article outlines some critical perspectives on the relationship between faith and justice. The liberal conception of constitutional order seems to rely on questionable assumptions about the nature of public and private, sameness and difference, and the right and the good. These assumptions have been subjected to a sustained examination from the perspectives of critical legal studies, feminist jurisprudence, and critical race theory. Part II seeks to develop a liberal theory of the relationship between faith and justice that is responsive to this critique. The liberal case for excluding religious faith or any other comprehensive conception of the good from the process of judging rests on the idea that political justification in general, and legal argumentation in particular, should attempt to forge and sustain an overlapping consensus on a public conception of justice. Part III applies this liberal conception of the relationship between faith and justice to issues raised by Catholics becoming Justices. Finally, Part IV presents my concluding thoughts on the relationship between faith and justice

Originalism and the Unwritten Constitution

In his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this article, the author argues that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. He establishes a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and decision of constitutional cases). The author concludes by applying the framework to a question posed by Akhil Amar: Can vice presidents preside over their own trial upon impeachment? A negative answer to this question is consistent with an originalist constitutional theory that carefully cabins the use of extratextual sources in constitutional interpretation and construction